Terms & Conditions
1. Applicability and Definitions
1.1 The Agreement means the agreement between ELLIS Publications bv of Maastricht, The Netherlands (“Licensor”) and the customer (“Licensee”) on the basis of the Order Form as defined herein, the Acceptance as defined herein and the present Terms and Conditions. The Terms and Conditions shall apply on any offer or agreement with the exclusion of any terms and conditions used by the Licensee.
1.2 The following terms shall have the following meanings:
Licensed Material: any content provided by Licensor to Licensee;
Software: the programs and ancillary files provided by Licensor for the purpose of accessing and using the Licensed Material.
Product: the Licensed Material and the Software and any part thereof.
Network: any system allowing access to the Product via any communications link except by remote access as defined herein.
Local Area Network: a Network within a single site.
Wide Area Network: a Network over more than one site.
Site: the physical location(s) or address(es) at which the Product will be used as per the Agreement, or in default thereof the Licensee’s principal place of business.
Remote access: any system that allows access to the Product via any form of remote telephone access via modem or similar device.
Online Access: the access to the Product offered as the “Online” Product by the Licensor on the Internet (http://www.ellis.thomson.com);
Order Form: Licensor’s standard order form, or if not used by Licensee, any document detailing the order in combination with Licensor’s Acceptance.
Acceptance: Licensor’s acceptance of the order by way of invoice or separate note;
Start Date: the date indicated on the invoice on which this Agreement takes effect;
Renewal Date: an anniversary of the Start Date
License Fee: the fee for non-networked use of the Product.
Network License Fee: the fee for using the Product on a Network.
Renewal Fee: the fee to be paid annually prior to the Renewal Date.
2. Grant of License
2.1 The Licensor hereby grants to Licensee a non-exclusive, non-transferable License to use the Product at the Site on a single workstation, or if use in a Network has been agreed, on the Network, in accordance with the terms and conditions hereof.
2.2 Where the Product is supplied on a trial-basis for evaluation purposes, Licensee may use the Product for evaluation during the period agreed, in accordance with the terms and conditions hereof and shall at the Licensee’s cost return the Product at the end thereof.
3. Period of License
3.1 This Agreement shall remain in force for 12 months from the Start Date and shall automatically renew for 12 months at any anniversary of the Start Date unless the Licensee will have given 1 month written notice of termination to the Licensor prior to the anniversary of the Start Date.
3.2 Upon termination of this Agreement for any reason whatsoever Licensee will cease using the Product.
4. Prices and Payment Obligations
4.1 Licensee undertakes to pay Licensor the License Fee or Network License Fee as the case may be prior to the Start Date and the Renewal Fee prior to each Renewal Date, increased with VAT where applicable and dispatching and/or administration costs.
4.2 Licensor reserves the right to change the License Fee, Network License Fee and/or the Renewal Fee with effect from the Start Date or Renewal Date subject to 30 days prior notice.
4.3 If payment of any Fee has not been received by Licensor within 14 days of the invoice date, Licensee will be in default without any further notice being required.
4.4 Licensor reserves the right to withhold delivery of the Product and any Updates thereof until all outstanding fees and costs are paid.
5. Termination on Breach
Licensor may terminate this License forthwith by written notice to Licensee if:
(a) Licensee has committed an irredeemable breach of this Agreement; or
(b) after Licensee, in Licensor’s reasonable opinion, has failed to remedy a remediable breach of these terms and conditions within 14 days of being given notice to do so, or
(c) Licensee is made bankrupt or enters into liquidation or any arrangement with creditors or has a receiver or administrative receiver appointed such termination being without notice and without prejudice to any other claim which Licensor may have.
6. Ownership and Permitted Copying
6.1 The Product is not sold to Licensee who shall not acquire any right, title or interest in:
(a) the Product;
(b) the media upon which the Product is supplied;
(c) any documentation or material made available to Licensee which shall remain the property of Licensor or Software owner as may be the case.
6.2 All rights in the Product whether these exist or may come into existence which are not specifically granted to Licensee by this Agreement are expressly reserved to Licensor or to such other rights holders as stated on the Product.
6.3 European Copyright material is reproduced with the permission of the European Communities and CELEX.
6.4 Licensee shall not sublicense the Product to others and Licensee warrants that access will not be given to the Product to any person not being an employee or partner of Licensee, firm, company, organisation, or other entity.
6.5 Except as permitted by law, by installation instructions supplied by Licensor to Licensee and by this Agreement, Licensee shall not itself nor allow any third party to duplicate or otherwise reproduce the Product or any part thereof.
6.6 Licensee may only copy the Product from CD-ROM onto a hard disk controlled by a standalone computer (or where a Network license is granted: on one hard disk in the Network) under the installation procedure provided by Licensor and described in the Documentation. Any other transfer to disk is not permitted.
7. Permitted and Prohibited Use
7.1 Licensee shall use the Product and shall take all reasonable steps to ensure that its authorised employees and other permitted users shall use the Product only:
(a) for its own business purposes;
(b) on the single workstation or, if agreed, on the Network and with no more than the agreed maximum of simultaneous users,
(c) at the Site;
(d) for the permitted purposes set out in the Agreement.
7.2 Licensee shall not use the Product nor allow or authorise the Product to be used for the purpose of operating a bureau or similar service or any online service whatsoever.
7.3 Licensee, its employees or partners on its behalf, during the normal course of Licensee’s business, and, where Licensee’s business is the provision of library services, bona fide on-site users of those services, may for the purposes of research:
(a) view the Product on screen;
(b) print extracts from the Product;
(c) transmit by print, fax, e-mail, or other method, extracts from the Product between employees, partners or agents of Licensee;
(d) transmit by print, fax, e-mail, or other method, extracts from the Product to third parties only in connection with the provision of professional advice provided that no additional fee is directly or indirectly charged for each transmission.
7.4 In no circumstances without the express consent of Licensor in writing may the Product or any part thereof be used in connection with any system of remote access, other than for purposes of e-mail or fax transmission as set out in this Clause.
7.5 All extracts must clearly reproduce the copyright notice(s) and Licensee shall not do or omit to do or authorise any other person to do or omit to do any act which:
(a) would or might invalidate or be inconsistent with any Intellectual Property Right of Licensor and/or Software owner in the Licensed Material and/or Software
(b) would be in breach of or otherwise inconsistent with the moral rights of the authors of the items comprising the Product.
7.6 Licensee shall not erase remove deface or cover any trademark, trade names, numbers, copyright or other proprietary notices, guarantee, designation of origin, means of iden¬tification, disclaimer or other statement used on any media containing the Product or used in relation to it, nor shall Licensee authorise another person to do so.
7.7 Licensee shall promptly inform Licensor if Licensee becomes aware of:
(a) any unauthorised use of the Product
(b) any actual, threatened, or suspected infringement of any intellectual property right of Licensor in the Product, and
(c) any claim by any third party that the Product infringes the intellectual property or other rights of any other Person.
7.8 Licensee shall at the request and expense of Licensor do all such things as may be reasonably required to assist Licensor in taking or resisting proceedings in relation to any infringement or claim referred to in this Clause and in maintaining the validity and enforceability of the intellectual property of Licensor in the Product.
7.9 Except insofar as permitted by law, Licensee shall not modify, reverse assemble, decompile or reverse engineer the Product or any part thereof, or permit any third party to do so.
7.10 Licensee shall not, except to the extent necessary to exercise the rights granted under this Agreement without the prior written consent of Licensor:
(a) make any alterations, additions or amendments to the Product;
(b) combine the whole or any part of the Product with any other software, data or material
(c) create derivative works from the whole or any part of the Product
7.11 In no circumstances may the Software be used separately from the Product.
8. Supply
8.1 Licensor will supply to Licensee the Product.
8.2 Licensor may at any time make modifications or improvements to the Product.
8.3 Licensor may at any time withdraw from the Product any material included in it:
(a) if Licensor or the European Communities or Celex ceases, for whatever reason, to publish the publication from which such material is taken or otherwise no longer retains the right to publish such material;
(b) if in Licensor’s reasonable opinion such material contains any matter which infringes copyright or is defamatory, obscene, unlawful, or otherwise objectionable.
9. Updates on CD-ROM or Other Media
9.1 During the period of the Agreement, Licensor will use all reasonable endeavours to supply Updates to the Product.
9.2 Licensor reserves the right to employ hardware or software methods including timelocks to render superseded versions of the Product inoperable.
9.3 Within 14 days of receipt of an Update Licensee undertakes to destroy such disk or disks as may no longer be required as a result of the Update.
10. Special Provisions for Online Access
10.1 If the Agreement regards the Online Access of the Product, these terms and conditions will apply accordingly.
10.2 The Licensee will be issued with a unique username and a unique password (or any other means of personal identification, including but not limited to one or more IP-address numbers), which the Licensee shall only use or allow to be used for the permitted use at the Site and which the Licensee shall keep confidential and not disclose, disseminate or pass on to employees, partners, group companies, branch offices, business relations or others for use from other locations than the Site or by other than the permitted users.
10.3 Although reasonable care is given to ensure uninterrupted use of the Product, Licensor shall not be liable for any temporary difficulties Licensee may encounter in Online accessing the Product whether due to telephone connections, down time of the internet server at the provider, maintenance, virus detection or elimination or any other reason whatsoever.
10.4 Without prejudice to any other remedy Licensor may have by law in the event of breach of the obligation in this clause, Licensee shall become due and owing without any further notice being required to Licensor by way of penalty a sum equal to the Fee for Worldwide unlimited access applicable at the time of such breach.
11. Licensor Warranties
11.1 Licensor warrants that it has obtained all necessary rights to grant this License.
11.2 Licensor warrants that the physical medium on which the Product is carried will be free from defects for a period of 90 days from delivery.
11.3 In the event of any material inherent defects in the CD-ROM, other than caused by accident abuse or misuse by Licensee, Licensor 's sole liability to Licensee is to replace defective original media free of charge provided it is returned to Licensor within 90 days of the date or receipt of such faulty CD-ROM.
11.4 Whilst reasonable care is taken to ensure the accuracy and completeness of the Product supplied, Licensor makes no representations or warranties whatsoever, express or implied, that the Product is free from errors or omissions.
11.5 Whilst reasonable care has been taken to exclude computer viruses, no representation or warranty is made that the Product is virus free. Licensee shall be responsible to ensure that no virus is introduced to any computer or network.
11.6 Licensee has satisfied itself prior to entering the Agreement that the Product meets Licensee's individual requirements and is compatible with Licensee’s hardware/software configuration and no failure of any part or the whole of the Product to be suitable for those requirements will give rise to any right or claim against Licensor.
11.7 The warranties set out in this clause are exclusive of and in lieu of all other warranties, conditions, terms, undertakings, and obligations whether implied or expressed by law..
11.8 Licensor shall not be liable for any loss of whatsoever kind or for any indirect or consequential loss whatsoever, howsoever suffered by Licensee or for any liability of Licensee to any third party in connection with the Product (whether or not caused by the negligence of Licensor).
11.9 The aggregate maximum liability of Licensor in respect of any direct or other loss (to the extent that such loss is not excluded by this Agreement or otherwise) whether such a claim arises in contract, tort or delict shall not exceed a sum equal to that paid as the last annual License Fee or Network License Fee for the Product.
11.10 Licensor shall not be liable for the use of the Product by Licensee, its agents and employees and Licensee shall keep Licensor fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use.
12. Miscellaneous
12.1 Where two or more legal entities constitute Licensor and/or Licensee their liability shall be joint and several.
12.2 These terms and conditions together with the Order Form constitute the entire Agreement between the parties and may only be varied in writing signed by both parties.
12.3 Neither this Agreement nor any of the rights and obligations of Licensee hereunder may be assigned, transferred, charged, delegated, sublicensed, or otherwise disposed of in whole or in part on a temporary or permanent basis unless Licensee has obtained the prior written consent of Licensor.
12.4 No delay or forbearance by Licensor in enforcing any provisions of this Agreement shall be construed as a waiver of such provision or an agreement thereafter not to enforce the said provision on that or any other occasion or another provision on another occasion.
12.5 This Agreement shall be governed by the laws of The Netherlands and for the benefit of Licensor the courts in the District of Maastricht (The Netherlands) are appointed as the exclusively competent courts to hear any dispute pursuant to this Agreement.
