Elsevier Terms And Conditions Of Supply
These terms and conditions shall apply to all offers, proposals and agreements between Elsevier and any third party or its agent (the “Client”) relating the license or sale of Elsevier’s products and services (“Products”) and, along with the Elsevier Order Form forms the entire agreement between the parties (the “Agreement”). The Agreement supersedes any previous supply terms and conditions relating to the subject matter hereof. Any variation to the Agreement and any representations about the Products shall have no effect unless expressly agreed in writing and signed by an authorized signatory of Elsevier. Unless otherwise expressly agreed by Elsevier in writing, Client represents and warrants that it is purchasing Products from Elsevier for its own account and use and not on behalf of any other person or entity. Neither the terms and conditions of this Agreement nor the terms and conditions of any Order Form entered pursuant to the Agreement shall be modified, replaced or superseded in any way by terms and conditions that may be contained in, included with or referenced to in any subsequently Client issued purchase order, invoice or other documentation relating to the Products. Any such terms and conditions are hereby expressly rejected by the parties and shall have no force or effect.
2. Payment and Fees
Client shall pay fees to Elsevier as set forth in the Order Form (the “Fees”). Unless otherwise stated therein, Fees are due within thirty (30) days of date of the invoice. Late payments will be subject to interest charges of 1% per month on any balance remaining unpaid. The Fees will be exclusive of any sales, use, value added, withholding or similar tax, and Client shall be liable for any such taxes in addition to the Fees. Client shall make all payments due under this Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. Where the Client is indebted to Elsevier for any other product or service under any other order, Elsevier reserves the right to withhold supply of the Products under the current order until any outstanding monies are fully paid. Elsevier shall be entitled to apply any monies received by the Client, to clear any of the Client’s outstanding debts to Elsevier. Products shall be at the Client’s risk as from delivery. In addition to other remedies provided in this Agreement, Elsevier reserves the right to suspend access to the Products without incurring liability if (i) the full amount of any Elsevier invoice hereunder has not been paid within the agreed payment deadline or, (ii) any invoice is outstanding under previous subscription agreements between parties for the Products. The suspension of Client’s access for non-payment or on any other grounds provided herein is without prejudice to Client’s obligation to pay its outstanding and future invoice amounts in full.
During the term of this Agreement, and for up to one (1) year after all Fees due hereunder for use of the Products cease to be incurred by Client, upon reasonable notice to Client, Elsevier and/or its agents or representatives may audit Client’s compliance with this Agreement, including any applicable Order Form(s). During this time, Client will keep and maintain clear, accurate, and complete books and records, including, without limitation, all records relating to Client’s compliance with this Agreement and relating to the Fees payable hereunder. In the event that any fees payable hereunder are variable based on usage or other factors, if an audit reveals an underpayment by Client, Client will promptly make any such payments, including interest and charges as provided in this section, and in the event of an underpayment of five percent (5%) or more will reimburse Elsevier for the cost of such audit.
4. License and Restrictions on Use
Elsevier grants to Client a non-exclusive, non-transferable right to access and use the Products identified in the relevant Order Form and to provide the Products to its Authorized Users as defined in the relevant Order Form subject to the terms and conditions of this Agreement and the applicable Order Form. Client shall not (i) deliver or otherwise make the Products directly or indirectly available to anyone other than Authorized Users; (ii) abridge, modify, translate, or create any derivative work and/or service (including resulting from the use of artificial intelligence tools), based on the Products, except to the extent necessary to make them perceptible on a computer screen to Authorized Users; (iii) use any robots, spiders, crawlers or other automated downloading programs, tools, or devices, to search, scrape, extract, deep link, index and/or disrupt the working of the Products; (iv) substantially or systematically reproduce, retain, store locally, redistribute or disseminate the Products; (v) use the Products in combination with an artificial intelligence tool (including to train an algorithm, test, process, analyze, generate output, and/or develop any form of artificial intelligence tool); (vi) post individual items from the Products on social networking sites; or (vii) remove, obscure or modify in any way any copyright notices, other notices or disclaimers as they appear in the Products. Authorized Users who are independent contractors may use the Products only for the purposes of the contracted work for Client.
5. Withdrawal of Content; Discontinuation of Products
Elsevier reserves the right to withdraw from the 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. In addition, for Products for which content is routinely updated, Elsevier may withdraw certain content for editorial, usage, currency, or other commercially reasonable reasons. Elsevier reserves the right to discontinue the Products, by providing at least ninety (90) days prior written notice, along with a prorated refund of any prepaid license Fees for the discontinued Product.
6. Term & Termination
Client’s use of the Products is subject to the Term Start and Term End Date listed within each applicable Order Form. Thereafter, the Products will automatically renew for successive one (1) year terms, subject to appropriate adjustments to the Fees, unless either party gives the other party written notice of its intent not to renew no later than sixty (60) days prior to the end of the then-current term. Either party may terminate this Agreement and all license grants hereunder if: (i) the other party commits a material breach and fails to cure within thirty (30) days after receipt of written notice; (ii) or, the other party provides written acknowledgement of insolvency, applies for a judicial proceeding in bankruptcy or the appointment of a receiver for any of its properties, or an involuntary bankruptcy or dissolution action is commenced against the other party for such default(s). Upon termination, (i) all licensing rights granted herein will immediately cease; (ii) Client will immediately return, delete or destroy, at Elsevier’s discretion, all Elsevier Products, all Elsevier property including but not limited to any and all copies of the applicable Products and any other Elsevier intellectual property, files, data and/or links in its possession, custody or control and remove such materials from any and all of Client’s systems, sites and/or software; (iii) Client will certify to Elsevier in writing within five (5) days that it has complied with the foregoing; and (iv) Client will pay Elsevier all amounts due and owing under this Agreement and/or the applicable Order Form as of the date of expiration or termination.
7. Intellectual property
Client acknowledges that all right, title and interest in and to the Products and documentation, all copies thereof, and all modifications, changes, conversions, upgrades, additions and enhancements thereto, including all applicable rights to confidential information and methodologies, patents, copyrights, trademarks, trade names, service marks, inventions, know-how, mask work rights, trade secrets and all other intellectual property rights inherent therein and appurtenant thereto, including all ideas, concepts, know-how, or techniques relating thereto developed during the course of this Agreement by Elsevier, belongs to and remains exclusively with Elsevier or its suppliers, subject only to the limited rights and license expressly granted to Client herein. Client acknowledges further that the unauthorized redistribution of the Products could materially and irreparably harm Elsevier and its suppliers. Except as otherwise provided for in writing, any modification or enhancement to any Product developed by Client with or without advice or support by Elsevier or by Elsevier for Client, whether or not reimbursed by Client and whether or not developed in conjunction with Client’s employees, agents, or contractors, are the exclusive property of Elsevier. All rights not expressly granted by Elsevier in this Agreement are expressly reserved by Elsevier. During and following the Term of this Agreement and any applicable Order Form, Elsevier may use, copy, store, transmit and reformat all aggregated, de-identified data from Client’s use of the Product for its own business purposes.
8. Representations, Warranties & Disclaimer
Elsevier represents and warrants that: (a) the Product complies with Elsevier’s official published specifications and product documentation in existence at the time the Product is delivered and (b) use of the Products in accordance with the terms and conditions herein will not infringe the proprietary or intellectual property rights of any third party. In the event any Product is determined to be subject to the proprietary or intellectual property rights of any third party, Elsevier agrees, at its option, to either (i) procure for Client the right to continue using such Products, (ii) replace or modify such Products to be non-infringing, or (iii) discontinue and terminate this Agreement or the Order Form applicable to the infringing Products upon written notice to Client and refund to Client a prorated portion of the Fees paid hereunder for the length of time Client was unable to use such Products. If such refund occurs, Elsevier will be released from all liability for all existing and future claims or obligations related to such Products except as specifically set forth herein. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN AND TO THE EXTENT NOT PROHIBITED BY APPLICALE LAW, THE PRODUCTS AND ANY OTHER DATA, DOCUMENTATION AND MATERIALS PROVIDED IN CONNECTION WITH THIS AGREEMENTARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY AND ELSEVIER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PUPOSE., CLIENT IS SOLELY RESPONSIBLE FOR ITS USE OF THIRD-PARTY INFORMATION CONTAINED IN OR INFORMATION GENERATED THROUGH USE OF THE PRODUCTS. CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE BY ELSEVIER OR ANY AGENT OR REPRESENTATIVE OF ELSEVIER EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
9. Elsevier Indemnities
Elsevier shall indemnify, defend and hold harmless Client from and against any loss, damage, costs, liability and expenses (including reasonable attorneys’ fees) (“Losses”) arising from or out of any third-party action or claim that use of the Products, in the form delivered by Elsevier to Client and 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, Client shall promptly notify and reasonably cooperate with Elsevier. This indemnity obligation will survive the termination of this Agreement.
10. Liability Limitation
Except to the extent prohibited by applicable law, in no event will the Elsevier Covered Entities be liable for lost profits or for any indirect, incidental, special, consequential, or punitive damages including, but not limited to, loss of data, business interruption, loss of profits, personal injury, or property damage arising out of or in connection with this Agreement, even if an Elsevier Covered Entity has been advised of the possibility of such liability or damages. Except for the express indemnities stated herein, the liability of Elsevier Covered Entities will not exceed a sum equal to the Fees paid by the Client for the applicable Products hereunder during the twelve (12) month period immediately preceding the date on which the claim arose.
11. Exclusion for Client/Authorized User Acts and Omissions
Notwithstanding the foregoing, in no event shall Elsevier Covered Entities be liable for any claim or damages nor have any indemnity obligations, that arise in whole or part from the following acts or omissions of Client or its Authorized Users: (i) failure to implement any improvement or update provided without additional expense by Elsevier or as part of any maintenance services provided hereunder; (ii) any modification of the Products unless Client has obtained written consent from Elsevier or to the extent permitted in the applicable Order Form; (iii) any use or combination of the Products with hardware, software, content, data, or other materials not supplied by Elsevier; (iv) any negligent act or omission; or (v) any breach of this Agreement. In the event of any claim or damages arising in whole or part from such aforementioned acts or omissions of Client or its Authorized Users, Client shall bear full responsibility and liability for such claim or damages. These obligations will survive the termination of this Agreement.
12. Data Security
Elsevier shall use commercially reasonable efforts to keep data supplied during the course of use of the Products and materials customized by Authorized Users protected against unauthorized access, loss, misuse, alteration or disclosure through the use of appropriate security measures that conform to generally recognized industry standards and best practices, based on the relevant data classification.
Client and its employees, officers, directors and agents will maintain as confidential and not disclose to any non-affiliated third party without Elsevier’s prior written consent the financial terms and commercial conditions of this Agreement, the Products, any discussions or information related to products and services the parties may offer to one another in the future and the reports delivered to the Client.
14. Force majeure
Neither party’s delay or failure to perform any provision of this Agreement (other than payment obligations) 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) that prevents it from fulfilling its obligations under this Agreement (any such circumstances being “Force Majeure”) will be deemed a breach of this Agreement. For avoidance of doubt, a party’s financial inability to perform its obligations shall, in no event, constitute a Force Majeure.
The invalidity or unenforceability of any provision of this Agreement will not affect any other provisions of this Agreement.
No modification, amendment or waiver of any provision of this Agreement will be valid unless in writing and signed by the parties except for changes reflecting substituted titles, IP addresses, authentication mechanisms, invoicing and contact address details which may be confirmed by Elsevier in an email notice sent to Client.
Client 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.
18. Choice of Law/Choice of Venue
This Agreement will be governed by and construed in accordance with the laws of the State of the Commonwealth of Pennsylvania without regard to conflict of law principles and the parties irrevocably consent to the exclusive jurisdiction of the United States District Court for the Eastern District of Pennsylvania or state courts of Philadelphia County, Pennsylvania.
This Agreement may be executed in counterparts, and signatures exchanged by facsimile or other electronic means are effective to the same extent as original signatures.