This individual online agreement ("the Agreement") is made between the BMJ Publishing Group Limited ("Licensor") and the individual purchasing the online subscription ("Licensee").
In this Agreement, the following terms shall have the following meanings:
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1.2 "Commercial Use" includes i) copying or downloading any of the Licensed Materials or linking to the Licensed Materials for further redistribution, sale or licensing, for a fee; ii) copying, downloading or posting of any of the Licensed Materials on a site or service that incorporates advertising with such content; iii) the inclusion or incorporation of any of the Licensed Materials in other works or services (other than legally permitted quotations with an appropriate citation) that is then available for sale or licensing, for a fee; iv) use of any of the Licensed materials howsoever (other than legally permitted quotations with an appropriate citation) by organisations for promotional purposes, whether for a fee or otherwise; and v) use of the Licensed Materials for the purposes of monetary reward by means of sale, resale, license, loan, hire, transfer or other form of commercial exploitation.
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3.2 Notwithstanding any other provision in this Clause 3, and only for any Licensor journal articles (and not for other Licensed Materials) which expressly have stated on them "Open Access Article", Authorised Users may copy, distribute, transmit and adapt such articles subject to:
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3.2.5 ensuring any translations, ( other than for which a prior translation agreement with BMJ has been established), have prominently displayed on them the statement:"This is an unofficial translation of an article that appeared in a BMJ publication. Neither BMJ or its licensors have endorsed this translation".
4.1 Licensee agrees that the Licence is personal to the Licensee and:
4.1.1 it will not knowingly permit anyone else to use designated passwords so to access the Licensed Materials;
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6.2 On termination of this Licence for just cause, access to the Licensed Materials by Licensee and Authorised Users shall be terminated.
Warranty and liability
7.1 While Licensor seeks to provide updated and accurate content as part of the Licensed Materials, the Licensed Materials are supplied on an “as is” basis. Any statements made to the contrary are void. Licensee shall be responsible for notifying all Authorised Users and any other users of the Licensed Materials or Site acting under Licensee that such users must always read the full disclaimers on the relevant website for each of the Licensed Materials and that their use of the Licensed Materials shall be deemed acceptance of those terms. Licensee shall indemnify Licensor and its licensors against any claims, costs, expenses, proceeding, awards and demands made against the Licensor or its licensors by Authorised Users or any other party using the Licensed Materials or Site under Licensee. Licensor and its licensors do not warrant or guarantee its accuracy, completeness, merchantability, non-infringement or fitness for a particular purpose of the Licensed Materials or the Site and to the fullest extent permitted by law, Licensor and its licensors expressly disclaim the foregoing and all others, (other than where expressly agreed to herein) and in addition, any conditions, warranties and other terms howsoever, which might otherwise be implied by statute, common law or otherwise.
7.2 TO THE FULLEST EXTENT PERMITTED BY LAW AND OTHER THAN EXPRESSLY PROVIDED FOR HEREIN, IN NO CIRCUMSTANCES IS LICENSOR OR ITS LICENSORS LIABLE TO THE LICENSEE AUTHORISED USERS, OR OTHER USERS ACTING UNDER LICENSEE FOR ANY INDIRECT OF CONSEQUENTIAL LOSSES OR EXPENSES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS OR SAVINGS, GOODWILL, REPUTATION, BUSINESS RECEIPTS OR CONTRACTS, OR LOSSES OR EXPENSES RESULTING FROM THIRD PARTY CLAIMS. NOTHING IN THIS AGREEMENT SEEKS TO EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY LICENSOR’S NEGLIGENCE OR FRAUDULENT MISSTATEMENT AND THIS DOES NOT EFFECT THE LICENSEE’S STATUTORY RIGHTS.
7.3 TO THE FULLEST EXTENT PERMITTED BY LAW, IN THE EVENT THE LICENSOR OR ITS LICENSOR’S HAVE ANY LIABILITY UNDER THIS AGREEMENT, LICENSOR’S AND THEIR LICENSORS AGGREGATE LIABILITY FOR ANY CONTENT, ACCESSIBILITY OR PROBLEMS WITH THE SITE OR LICENSED MATERIALS WILL NOT EXCEED THE AMOUNT OF SUBSCRIPTION FEES PAID FOR THE LICENSED MATERIALS DURING THE 12 MONTH PERIOD PRECEDING ANY CLAIM OR NOTICE OF DAMAGES.
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9.1 Neither party shall be liable for failure, default or delay in performing its obligations under this Licence, caused by a Force Majeure event which shall include any act of God, war, or threatened war, act or threatened act of terrorism, riot, strike, lockout, individual action, fire, flood, drought, tempest or other event beyond the reasonable control of either party.
9.2 Licensor may assign or transfer any of its rights and obligations under this Agreement, upon written notice to Licensee. Licensee may not assign its rights or transfer its obligations herein without the prior written consent of Licensor.
9.3 Alterations to this Agreement are only valid if they are recorded in writing and signed by both parties.
9.4 In the event that any provision of this Agreement is held to be invalid, the remainder of the provisions shall continue in full force and effect.
9.5 There shall be no right whatsoever for any third party to enforce the terms and conditions of this Agreement. The Parties hereby expressly wish to exclude the operation of the Contracts (Rights of Third Parties) Act 1999. 9.6 No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver, to be effective, must be in writing and signed by a duly authorised representative of each party.
9.7 Any notice under this Agreement must be hand written and may be delivered or sent by fax or first class post to the offices of the relevant party set out on the first page of Agreement (or as otherwise notified from time to time) and such notice shall be deemed to have been received upon successful transmission of faxing or 7 (seven) days from the date of posting.
9.8 To the fullest extent permitted by law, this Agreement constitutes the entire Agreement between Licensor and Licensee with respect to the Licensed Materials.
9.9 To the fullest extent permitted by law, this Licence will be governed by the laws of England and shall be governed and construed in accordance with the laws of England. Any action arising out of or relating to this agreement shall be brought in courts situated in England save where it is necessary for Licensor for enforcement to bring proceedings to bring an action in an alternative jurisdiction.
Date of document: November 2008
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