By checking the "I Agree" box below and returning this Agreement to the Publisher, you agree to be bound by the terms of this License Agreement (the "Agreement"). This Agreement is made and entered into as of the date of your acceptance (the "Effective Date") by and between your company or institution ("Licensee") and The American Association of Immunologists, Inc., 1451 Rockville Pike, Suite 650, Rockville, MD 20852 ("Publisher").
PREAMBLE
WHEREAS, the Publisher owns and publishes The Licensed Materials (as defined below); and
WHEREAS, the Licensee desires to license the Licensed Materials and the Publisher desires to grant to Licensee the license to use the Licensed Materials in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. KEY DEFINITIONS
1.1. In this Agreement, the following terms shall have the following meanings:
Authorized Site (also referred to as "Licensee's Premises")-- A localized site (one geographical location) that is under a single administration and may be academic or non-academic. For Academic Institutions, such a location is a single campus. For corporations, such a location is a single building or corporate campus. For public libraries, such a location is a single building. For avoidance of doubt, if Licensee has multiple physical locations (such as an academic institution with multiple campuses), or if Licensee has a facility located on its premises that is administered by a separate institution, and Licensee wishes to provide access to the Licensed Materials to users at such multiple locations, Licensee must enter into a multi-site license agreement with Publisher to include each such location.
Authorized Users---
For academic institutions ("Academic Institutions"): (i) Members of the faculty and other staff of the Licensee (whether on a permanent, temporary, contract or visiting basis) employed at the Licensee's Premises; (ii) individuals who are enrolled at the Licensee's Academic Institution located on the Licensee's Premises who are permitted to access the Secure Network from within the Library Premises or from such other places where Authorized Users work or study (including but not limited to Authorized Users' offices and homes, halls of residence and student dormitories) and who have been issued a password or other authentication from the Licensee; and (iii) other persons who access the Secure Network from computer terminals within the Library Premises and are permitted to use the Library Premises.
For corporations: Current members of the staff (whether on a permanent, temporary or contract basis) of the Licensee who are employed at Licensee's Premises and are permitted to access the Secure Network from within the Licensee's Premises or from such other places where such staff undertake their work for the Licensee (including but not limited to Authorized Users' offices and homes) and who have been issued a password or other authentication by the Licensee.
For public libraries: (i) Current members of the staff of the Licensee (whether on a permanent, temporary or contract basis) who are employed at Licensee's Premises and are permitted to access the Secure Network from within the Library Premises or from such other places where such staff undertake their work for the Licensee and who have been issued a password or other authentication by the Licensee; and (ii) members of the public (patrons) who are permitted to use the Licensee's library and access the Secure Network only from computer terminals within the Library Premises.
Commercial Use--- Use for the purposes of monetary gain by any form of exploitation of the Licensed Materials, other than recovery of direct costs by the Licensee from Authorized Users.
Course Packs--- A collection or compilation of materials (e.g. book chapters, journal articles) assembled by members of staff of a Licensee that is an Academic Institution 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 a Licensee that is an Academic Institution for use by students in connection with specific courses of instruction offered by the Licensee to its students.
FTEs--- An acronym for full-time equivalents and a good faith estimate of the number of Licensee's Authorized Users (employees, students, and faculty) used to determine the Subscription Fee.
Library Premises--- The physical premises of the library operated by Licensee that is located on the Licensee's Premises.
Licensed Materials--- Electronic versions of the issues of The Journal of Immunology published by Publisher.
Secure Network--- A network (whether a standalone network or a virtual network within the Internet), which is only accessible to Authorized Users whose identity is authenticated at the time of login and periodically thereafter consistent with then-current best practice and security procedures.
Server--- The server, either the Publisher's server or a third party server designated by the Publisher, on which the Licensed Materials are posted and may be accessed.
Subscription Fee--- The license fee for each year of the term. The Subscription Fee for each calendar year is located on www.jimmunol.org/subscriptions. The Subscription Fee shall be exclusive of any sales, use, value added or similar taxes and the Licensee shall be liable for any such taxes in addition to the Subscription Fee.
2. LICENSE GRANT AND SUBSCRIPTION FEE
2.1. The Publisher hereby grants to the Licensee a non-exclusive and non-transferable right to give Authorized 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 Agreement. Any use of the Licensed Materials not specifically authorized in this Agreement is prohibited.
2.2. 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.
2.3. The Licensee shall pay to the Publisher the Subscription Fee for the first calendar year of the term before access is granted. The Licensee shall pay to the Publisher the Subscription Fee for each subsequent calendar year of the term within sixty (60) days after the beginning of each such calendar year.
3. DELIVERY OF LICENSED MATERIALS
3.1. After payment of the Subscription Fee by Licensee, the Publisher shall:
3.1.1. Make the electronic version of the Licensed Materials available to the Licensee . The Publisher will use commercially reasonable efforts to notify the Licensee in advance of any anticipated specification change applicable to the Licensee's electronic access to the Licensed Materials;
3.1.2. Use commercially reasonable efforts to make the electronic copy of each issue of the Licensed Materials available to Licensee no later than seven (7) days after issue date;
3.1.3. Post information on Publisher's website regarding how Licensee can access the Licensed Materials from the Server; and
3.1.4. Use commercially reasonable efforts to make the Licensed Materials available to the Licensee on a twenty-four hour basis, with the exception of downtimes for routine maintenance and downtimes caused by events beyond the Publisher's reasonable control. In the event of technical problems in the operation of its Server, the Publisher shall take commercially reasonable efforts to remedy any such problems in a timely manner.
4. USAGE RIGHTS
4.1 The Licensee may (subject to Section 5 of this Agreement):
4.1.1. Allow Authorized Users to have access to the Licensed Materials from the Server via the Secure Network;
4.1.2. Provide single printed or electronic copies of individual articles to Authorized Users at the request of individual Authorized Users;
4.1.3. Display, download, or print the Licensed Materials for the purpose of training Authorized Users.
4.2. Licensee may permit Authorized Users to engage in the following activities in accordance with the copyright laws of the United States and the terms of this Agreement:
4.2.1. Search, view, retrieve, and display the Licensed Materials;
4.2.2. Electronically save individual articles or items of the Licensed Materials for Authorized Users' own research or study;
4.2.3. Print copies of excerpts from the Licensed Materials for Authorized Users' own research or study; and
4.2.4. Distribute copies of individual articles from the Licensed Materials in print or electronic form to other Authorized Users (for the avoidance of doubt, this sub-clause shall include the distribution of a copy for teaching purposes to each individual student Authorized User in a class at the Licensee's Academic Institution).
4.3. If the Publisher, in its sole discretion, deems it technically feasible, the Publisher shall provide Licensee with access, via the Publisher's website, to the Licensee usage data on the number of articles viewed by Licensee's Authorized Users on at least a quarterly basis. Such usage data shall be for the Licensee's internal use only. Such usage data shall be used and maintained by both parties in a manner consistent with applicable privacy laws and as specified by the Publisher.
5. USAGE RESTRICTIONS
5.1. Licensee shall not engage in the following activities and shall take all commercially reasonable efforts to prevent Authorized Users from engaging in the following activities:
5.1.1. Removing or altering the authors' names or the Publisher's copyright notices or other means of identification or disclaimers as they appear in the Licensed Materials;
5.1.2. Making print or electronic copies of the Licensed Materials for any purpose (except as authorized by Sections 4 and 6);
5.1.3. Posting or distributing any part of the Licensed Material on any electronic network other than the Secure Network, including without limitation, the Internet and the World Wide Web;
5.1.4. Systematically or programmatically downloading (for example, downloading entire journal issues) articles, files, or material obtained from the Licensed Material; or
5.1.5 Making available to users duplicate electronic copies of the Licensed Materials obtained by caching or mirrored storage.
5.2. The Publisher's prior written consent must be obtained in order to:
5.2.1. Use all or any part of the Licensed Materials for any Commercial Use;
5.2.2. Distribute all or any part of the Licensed Materials to anyone other than Authorized Users;
5.2.3. Publish, distribute, or make available the Licensed Materials, or create any derivative works from the Licensed Materials, other than as permitted in this Agreement;
5.2.4. Alter, abridge, adapt, or modify the Licensed Materials, except to the extent necessary to make them perceptible on a computer screen to Authorized Users; and
5.2.5. Make such temporary local electronic copies by means of caching or mirrored storage of all or part of the Licensed Materials as are necessary for indexing.
6. COURSE PACKS AND ELECTRONIC RESERVE Notwithstanding anything to the contrary in this Agreement, the Licensee may incorporate articles or portions of articles from the Licensed Materials into printed Course Packs and Electronic Reserve collections for the use of Authorized Users in the course of instruction at the Licensee's institution, provided that such Course Packs and Electronic Reserve Collections are not used for any Commercial Use. Each such article or portion of an article shall carry appropriate acknowledgement of the source of such article or portion of an article. Such acknowledgement will contain the name of the author of the applicable article, the title of the article, and the phrase "Originally published in The Journal of Immunology." Course Packs in non-electronic, non-print perceptible form, such as audio or Braille, may also be offered to Authorized Users who, in the reasonable opinion of the Licensee, are visually impaired.
7. ADDITIONAL LICENSEE DUTIES
7.1. The Licensee shall:
7.1.1. Use reasonable efforts to ensure that all Authorized 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;
7.1.2. Use reasonable efforts to ensure that all Authorized Users are appropriately notified of the restrictions placed on Authorized Users' use of the Licensed Materials under this Agreement and take all reasonable steps to protect the Licensed Materials from unauthorized use or other breach of this Agreement;
7.1.3. Use reasonable efforts to monitor compliance and immediately, upon becoming aware of any unauthorized use of the Licensed Materials or other breach of this Agreement, 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;
7.1.4. Issue passwords and other access information only to Authorized Users and use best efforts to ensure that Authorized Users do not divulge their passwords or other access information to any third party;
7.1.5. Provide the Publisher with all information requested by Publisher necessary to enable the Publisher to provide access to the Licensed Material in accordance with its obligation under this Agreement. 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;
7.1.6. Keep full and up-to-date records of all IP addresses used by Licensee to access the Licensed Materials and provide the Publisher with details of additions, deletions, or other alterations to such records as are necessary to enable the Publisher to provide Authorized Users with access to the Licensed Materials as contemplated by this Agreement; and
7.1.7. Use best efforts to ensure that only Authorized Users are permitted access to the Licensed Materials.
8. OWNERSHIP
8.1. Nothing in this Agreement shall effect a transfer of copyright rights in the Licensed Materials from the Publisher to the Licensee or its Authorized Users. Subject only to the license granted to the Publisher to use the Licensed Materials hereunder, the Publisher shall retain any rights of copyright in the Licensed Materials that it possessed prior to entering into this Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1. The Publisher represents and warrants that (i) it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder; and (ii) the Licensee's use of the Licensed Materials as permitted under this Agreement will not infringe the copyright or any other proprietary or intellectual property rights of any third party.
9.2. The Licensee represents and warrants that it has the right, power and authority to enter into this Agreement and to perform all of its obligations hereunder.
9.3. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, 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'.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1. The Publisher shall indemnify and hold harmless the Licensee and its employees from and against any and all losses, liabilities, claims, costs, damages and expenses (including attorneys' fees and administrative or court costs) arising out of or resulting from third party claims relating to the Publisher's breach or alleged breach of any representation or warranty made by Publisher under Section 9.1(ii). The parties acknowledge that the Publisher has no obligation to indemnify and hold harmless the Licensee from third party claims relating to the use of the Licensed Materials by any unauthorized third party and/or the use of the Licensed Materials in any manner that is not permitted under this Agreement.
10.2. To the extent permitted by law, the Licensee shall indemnify and hold harmless the Publisher, its officers, directors and employees from and against any and all losses, liabilities, claims, costs, damages and expenses (including attorneys' fees and administrative or court costs) arising out of or resulting from third party claims relating to (i) the breach or alleged breach of any representation, warranty or obligation of the Licensee under this Agreement; (ii) use of the Licensed Materials by the Licensee in a manner that is not permitted under this Agreement; and/or (iii) the use of the Licensed Materials by any Authorized User in a manner that is not permitted under this Agreement if Licensee was aware of such unauthorized use.
10.3. EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 10.1 AND 10.2, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE.
10.4. EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 10.1 AND 10.2, EACH PARTY'S LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF THIS AGREEMENT SHALL IN NO CIRCUMSTANCES EXCEED THE SUBSCRIPTION FEES PAID BY LICENSEE TO THE PUBLISHER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH SUCH CLAIM, LOSS OR DAMAGE OCCURRED.
10.5. UNDER NO CIRCUMSTANCES SHALL THE PUBLISHER BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF INTERRUPTIONS IN THE AVAILABILITY OF THE LICENSED MATERIALS NOT WITHIN THE REASONABLE CONTROL OF THE PUBLISHER, INCLUDING WITHOUT LIMITATION, POWER OUTAGES AND FAILURE OF EQUIPMENT OR SERVICES NOT PROVIDED BY THE PUBLISHER.
11. AUDIT The Publisher or its authorized representative shall have the right once per calendar year, at its own expense, to inspect and audit the books and records of the Licensee at the Licensee's offices, during normal business hours and upon reasonable notice, to verify the accuracy of the number of Licensee's FTEs.
12. TERM AND TERMINATION
12.1. The term of this Agreement shall commence on the Effective Date and shall continue until terminated under Section 12.2 of this Agreement. At least sixty (60) days prior to the end of each calendar year during the term, the Publisher may provide the Licensee with written notice of the Subscription Fee for the subsequent calendar year (the "Notice").
12.2. This Agreement may be terminated under the following circumstances:
12.2.1. If the Licensee fails to pay any Subscription Fee owed by Licensee by the date specified in Section 2.3 of this Agreement, then Publisher may terminate this Agreement immediately;
12.2.2. If either party materially breaches the Agreement and fails to cure such breach within sixty (60) days after the date that the breaching party receives written notice from the other party of such breach, then the non-breaching party may terminate this Agreement; or
12.2.3. If either party becomes subject to receivership, liquidation, or similar external administration, then the other party may terminate this Agreement.
12.3. On expiration or termination of this Agreement, all rights and obligations of the parties automatically terminate except that Sections 8, 9, 10, 12 and 13 shall survive.
12.4. On expiration or termination of this Agreement, the Licensee shall immediately cease to distribute or make available the Licensed Materials to any third party and shall remove all Licensed Materials posted on Licensee's Secure Network.
12.5. If Licensee terminates this Agreement because of Publisher breach under Section 12.2.2, the Publisher shall promptly refund to Licensee a pro rata portion of the Subscription Fee paid by Licensee under this Agreement based on the amount of time remaining in the then-current term.
13. GENERAL
13.1. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter of this Agreement, whether oral or written. The Publisher may modify any of the terms of this License at any time by providing notice on Publisher's web site or, at the Publisher's option, directly to Users via electronic or conventional mail. Continued use of The Journal of Immunology Online by Licensee after such modification shall be conclusively deemed acceptance of such modification.
13.2. Except as otherwise provided, this Agreement may not be assigned by either party to any other person or organization, nor may either party sub-contract any of its obligations, without the prior written consent of the other party, which consent shall not unreasonably be withheld. Notwithstanding the foregoing sentence, the Publisher may assign this Agreement without the Licensee's consent to any entity that acquires or succeeds by operation of law to all or substantially all of the assets of the Publisher that relate to this Agreement.
13.3. Except as otherwise stated, all notices, requests and other communications hereunder will be in writing and will be sent via U.S. Express Mail, certified mail (return receipt requested) or commercial overnight courier. All notices to the Publisher shall be sent to The American Association of Immunologists, Inc., 9650 Rockville Pike, Bethesda, Maryland 20814 to the attention of the Content Licensing Manager. All notices to the Licensee shall be sent to the address that the Licensee submits to the Publisher pursuant to this Agreement. Either party may notify the other in writing at any time of a change in address for all notices, requests and other communications hereunder.
13.4. Neither party shall be in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason 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).
13.5. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. In the event that any provision of this Agreement is determined to be invalid, unenforceable or otherwise illegal, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect.
13.6. Either party's waiver, or failure to require performance by the other, of any provision of this Agreement 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. No term of this Agreement will be deemed waived, and no breach will be deemed excused, unless such waiver or excuse is in writing, is expressly titled waiver of rights, and is executed by the party against whom such waiver is claimed.
13.7. This Agreement shall be governed by the laws of the United States. In the event of a dispute under this Agreement, the parties agree that any dispute that cannot be resolved by the parties shall be decided exclusively by arbitration before a single arbitrator pursuant to the procedures of the American Arbitration Association. The decision of the arbitrator shall be in writing, shall state the reasons for the decision, and shall be final and binding on all parties and anyone claiming through them. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
13.8. Neither this Agreement nor the relationship of the parties contemplated herein will be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.