1.1 In these Terms, unless the context requires otherwise, the following expressions have the following meanings:
“Authorized User”: (a) individuals registered as users of the Licensee’s library or information service; and (b) individual members of the public (including walk-in users) permitted to use the Licensee’s library or information services; in each case who are permitted general access to the Network by the Licensee.
“Network”: the Licensee’s local area network system of connected computers, (a) the range of IP addresses or (b) the referring URL, for which is set out in the Schedule.
1.2 The Agreement contains the entire agreement and undertaking between the parties relating to the Licensed Services and supersedes any prior agreement.
1.3 The termination of this Agreement shall not prejudice the rights and remedies of either party against the other in respect of any prior breach of covenant, terms, warranty or condition.
1.4 The failure of any party to enforce any provision of this Agreement on any one occasion shall not affect its right to enforce another provision or the same provision on another occasion.
1.5 Nothing contained in this Agreement shall constitute or shall be construed as constituting a partnership, joint venture, or contract of employment between the parties.
2. DELIVERY AND GRANT OF RIGHTS
2.1 In consideration of the payments made by the Licensee, and subject to the Licensee observing its obligations under this Agreement, the Licensor subject to clause 3.2 below, grants to the Licensee for the Term the following non-exclusive rights (“the Rights”), to:
(a) access via the Network at any time the Licensor’s server, or as the case may be any service provided by an agent on its behalf, for the purpose of accessing the Licensed Services, for research, teaching, and private study purposes by means of workstations connected to the Network;
(b) make the Licensed Services accessible via the Network to the Authorized Users for their research, teaching, and private study purposes;
(c) permit Authorised Users of the product to print and/or download individual articles and other individual items from searches of the Licensed Services for research, teaching and private study purposes;
2.2 The Rights are personal to the Licensee and do not extend to its subsidiary or parent organizations, or to any other related or affiliated organizations. The Licensee may not assign, sub-license, transfer, charge or otherwise dispose of its rights under this Agreement without the prior written consent of the Licensor.
2.3 Title to, and ownership of, the Licensed Services (including any copies made by the Licensee) is not transferred to the Licensee and remains vested in the Licensor, subject to the Rights granted in Clause 2.1. The Licensee acknowledges that any rights not expressly granted in this Licence are reserved to the Licensor.
2.4 The Licensee is responsible for the provision of and payment for the computer equipment and telecommunication services necessary for access to the Licensed Services. The Licensor shall not issue credits or refunds against charges incurred by the Licensee in relation to such telecommunication services or those incurred contacting Customer Support. The Licensee accepts that the Licensor has no control over such telecommunication services and that the Licensor shall have no liability to the Licensee for the acts or omissions of providers of telecommunication services or for faults in or failures of their apparatus.
2.5 Licensor collects data regarding the use of the Licensed Services in order to enable, evaluate and monitor the use of the Licensed Services. Licensee grants Licensor the right to use that data in order to monitor and evaluate the usage of the Licensed Services and to use that data for any other legitimate purpose.
2.6 Save for as outlined in this Agreement neither party shall acquire any right, licence title or interest in the Intellectual Property of the other party.
2.7 Any Intellectual property created as a result of performance of this Agreement shall be the property of the Licensor.
3. USAGE AND RESTRICTIONS
3.1 Except as expressly permitted in Clause 2.1, the Licensee warrants that it will not, nor will it license or permit others to, directly or indirectly, without the Licensor’s prior written consent:
(a) sell, distribute, license, rent or otherwise exploit the Licensed Services, or any element of it, for any commercial purpose;
(b) make the Licensed Services, or any element of it, available by any means to persons other than Authorized Users;
(c) make the Licensed Services, or any element of it, available on, or by, electronic bulletin boards, news groups, Web sites, FTP or any other means of posting or transmitting services on the Internet, an on-line service or wide area network;
(d) remove or obscure the Licensor’s copyright notice from the Licensed Services including hard-copy print-outs;
(e) use the Licensed Services to create any derivative work, product or service, or merge the Licensed Services with any other product, database, or service;
(f) alter, amend, modify, translate, or change the Licensed Services; or
(g) otherwise use the Licensed Services supplied in accordance with this Agreement in a manner that would infringe the copyright or other proprietary rights contained within it.
3.2 The Licensee acknowledges that the Licensed Services includes software that must be downloaded and installed by Authorised Users and the acceptance of terms and conditions imposed by the licensors of such software prior to being able to use such software and the Licensed Services associated therewith.
4. TERM AND TERMINATION
4.1 This Agreement shall begin on the Start Date and continue for the initial period of the Term as defined in the Schedule. This Agreement will automatically renew for further 1-year periods (“Renewal Term”) unless the Licensee terminates this Agreement by giving Licensor one month’s written notice prior to the end of the Term or Renewal Term. Licensor shall provide Licensee with a renewal quote 3 months prior to the end of the Term or the Renewal Term.
4.2 Either party may terminate this Agreement at any time upon written notice to the other if the other party defaults by failing to perform any material obligation on its part. The termination will become effective thirty days after receipt of written notice unless, in the case of a remediable default, during the relevant period of thirty days the defaulting party has remedied the default.
4.3 Licensor may terminate this Agreement at any time upon thirty days’ written notice to the Licensee.
4.4 If termination of this Agreement occurs as a result of notice being given by the Licensee under Clause 4.2, 4.6 or 8.2 or by the Licensor under Clause 4.3 or 8.2, the Licensor shall repay the Licensee a rateable proportion of the Licence Fee as represents the paid but unexpired Term at the date of termination.
4.5 The Licensor may suspend the provision of the Licensed Services to the Licensee with immediate effect on written notice without liability if the Licensor believes the Licensed Services are being used in a manner which contravenes the provisions of this Agreement.
4.6 Either party may terminate the Agreement forthwith on notice in writing to the other if the other party is unable to pay its debts or ceases or threatens to cease to carry on business, goes into administration, receivership or administrative receivership, or any event analogous to any of the foregoing occurs in any jurisdiction.
5. LICENCE FEE
5.1 The Licensee shall pay to the Licensor the Licence Fee within 30 days of the Start Date or within 30 days of commencement of the Renewal Term.
5.2 All amounts payable by the Licensee under this Agreement shall be exclusive of any sales, use, value added or similar taxes.
6. LICENSEE’S UNDERTAKINGS
6.1 The Licensee will take all reasonable steps to ensure that the Licensed Services are used only in accordance with the terms and conditions of this Agreement and shall inform Authorized Users of the permitted use restrictions and other provisions set out in this Agreement.
6.2 The Licensee will notify the Licensor immediately of infringements that come to the Licensee’s notice and the Licensee agrees to co-operate with the Licensor as appropriate to stop further abuse should it occur.
6.3 Nothing in this Agreement shall make the Licensee liable for breach of the terms and conditions of this Agreement by any Authorized User as long as the Licensee complied with the terms of Clauses 6.1 and 6.2 and did not cause, intentionally assist in or encourage such breach nor allowed it to continue after having received notice of such breach whether from the Licensor or otherwise. However, in the event of continuing abuse the Licensor shall be entitled to terminate this Agreement.
7. WARRANTIES, UNDERTAKINGS AND INDEMNITIES
7.1 The Licensor warrants to the Licensee that it has full rights and authority to grant the Rights to the Licensee and that the use by the Licensee of the Licensed Services in accordance with this Agreement will not infringe the rights of any third party.
7.2 The Licensor shall indemnify the Licensee for the amount of any award of damages against the Licensee by a court of competent jurisdiction as a result of any claim arising from a breach of the warranty in Clause 7.1 provided that the Licensor shall be entitled to assume sole conduct of any defence and shall have the right at its option:
(a) to procure the right for the Licensee to continue using the Licensed Services;
(b) to make such alterations, modifications or adjustments to the Licensed Services that it becomes non-infringing without incurring a services reduction in performance or function; or
(c) to replace the Licensed Services with non-infringing substitutes provided that such substitutes do not entail a services reduction in performance or function.
7.3 The Licensor shall not be liable to the Licensee for any loss or damage whatsoever resulting from omissions or inaccuracies in the Licensed Services regardless of how caused. The Licensor does not warrant that access to the Licensed Services will be free from errors or faults. In the event of a fault, the Licensee shall notify Licensor of the same by telephone, electronic mail or in writing.
7.4 Without prejudice to the generality of the foregoing, the Licensor shall not be liable for any claim arising from:
(a) any failure or malfunction resulting wholly or to any services extent from the Licensee’s negligence, operator error, use other than in accordance with Licensors instructions or any other misuse or abuse of the Licensed Services;
(b) the failure by the Licensee to implement recommendations previously advised by the Licensor in respect of, or solutions for, faults in the Licensed Services;
(c) the decompilation or modification of the Licensed Services or its merger with any other program or any maintenance repair adjustment alteration or enhancement of the Licensed Services by any person other than the Licensor or its authorized agent; or
(d) the Licensee or any Authorized User being unable to exercise the Rights due to the Licensed Services being unavailable as a result of any act or omission of the Licensor provided that the period for which the Licensed Services are not available shall not exceed a reasonable period.
7.5 THE LICENSED SERVICES ARE PROVIDED “AS IS.” NEITHER THE LICENSOR NOR ANYONE ELSE MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS CLAUSE 7, ALL CONDITIONS, WARRANTIES, TERMS, REPRESENTATIONS, AND UNDERTAKINGS EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RESPECT OF THE LICENSED SERVICES ARE TO THE FULLEST EXTENT PERMITTED BY LAW EXPRESSLY EXCLUDED.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY REPRESENTATIVE OF THE LICENSOR OR BY ANYONE ELSE SHALL CREATE ANY WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
7.6 The Licensor shall provide to the Licensee usage data for the Licensed Services downloaded by the Licensee and its Authorised Users on a monthly basis provided that the Licensor shall not be required to disclose any information to the Licensee which it is prohibited from disclosing to the Licensee due to any legal or regulatory constraint imposed upon it including without limitation any applicable privacy or data protection legislation or regulations or contractual obligations.
7.7 Compliance with Laws
By signing this Agreement, the parties represent and warrant that they will comply with any and all applicable rules, laws and regulations, court or administrative orders or decrees of any federal, provincial, local or other governmental entity, including but not limited to those concerning data protection, security and privacy including, without limitation, the EU and UK General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA).
8. FORCE MAJEURE
8.1 Either party’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or services, shall not be deemed a breach of this Agreement.
8.2 If any event set out in Clause 8.1 shall continue for a period in excess of 30 days either party shall be entitled to terminate this Agreement forthwith by written notice to the other.
Any notice to be served on either party by the other made under this Agreement shall be in writing sent by post to the address of the other party or to an email address as agreed by the parties for service of notices and all such notices shall be deemed to have been received within 48 hours after posting or immediately after emailing.
10.1 Neither party excludes or limits liability to the other party for death or personal injury caused by its own negligence or any other liability the exclusion or limitation of which is expressly prohibited by law.
10.2 Except as provided for in Clause 10.1 above, the liability of the Licensor in respect of any and all claims (whether in contract or in tort) arising out of or in connection with this Agreement is limited in respect of each event or series of connected events to the greater of US$1,000 or an amount equal to the fees paid under this Agreement in the previous year.
10.3 Except as provided for in Clause 10.1, notwithstanding anything else contained in this Agreement in no event shall the Licensor be liable to the Licensee for:
(a) loss of profits, business, revenue, goodwill, anticipated savings; and/or
(b) indirect, special or consequential loss or damage.
10.4 EXCEPT AS PROVIDED IN CLAUSE 10.1, IN NO EVENT WILL THE LICENSOR BE LIABLE TO THE LICENSEE OR ANYONE ELSE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF: (1) THE USE OR INABILITY TO USE THE LICENSED SERVICES OR ANY INTERRUPTIONS IN THEIR USE; OR (2) ANY INACCURACY IN THE LICENSED SERVICES, IN EACH CASE EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11. GOVERNING LAW
This agreement and any dispute or claim including non-contractual disputes or claims arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English law if the contracting party (as determined by clause 14) is Talis Education Limited, and California law if the contracting party is Sage Publications Inc.
In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
No provision of this Agreement or breach thereof may be waived except in writing signed by the party against whom the waiver is sought to be enforced.
14. ‘Technology for Sage’ or ‘TfS’ is a trading name. The relevant TfS contracting party for the purposes of these Terms and Conditions shall be determined based upon the location of the Licensee. If the Licensee is located in the Americas, the contracting party shall be Sage Publications Inc. If the Licensee is located outside of the Americas, the Licensor shall be Talis Education Limited.