In this Agreement, the following terms shall have the following meanings:
1.1 "Agreement" means this document including any schedules and any properly executed variations or addenda.
1.2 "Authorised Users" means full and part-time employees, staff, independent contractors and students who are officially affiliated with the Licensee at the Location valid Internet Protocol (“IP”) address(es) provided by the Licensee to Licensor or via remote access if in accordance with Clause 2.1.
1.3 "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.
1.4 "Fee" means the subscription fee payable by the Licensee for the Licensed Materials as set out on the Website.
1.5 "Licence" means the Licence set out in Clause 2 below.
1.6 "Licensee" means the single institution who purchases this Licence, (either directly or via an agent).
1.7 "Licensed Materials" means the electronic version of the Licensor's journal(s), databases and publications, which the Licensee subscribes to.
1.8 "Licensor" means the BMJ Publishing Group Limited.
1.9 "Location" means Licensee’s location(s) under a single administration and may be academic or non-academic.
1.10 "Secure Network" means a network (whether a standalone network or a virtual network within the Internet) which is only accessible to Authorised Users approved by the Licensee whose identity is authenticated at the time of login and periodically thereafter consistent with current BMJ Best Practice, and whose conduct is subject to regulation by Licensee.
1.11 "Site" means the electronic site on which the Licensed Materials will be displayed.
1.12 "Start Date" means the date upon which the Licensed Materials are first made available to the Licensee.
1.13 "Term" means one year from the Start Date, unless terminated earlier under Clause 6.
1.14 "Website" means http://bmj.com/ and relevant sub domains for the Licensed Materials.
2.1 In consideration of receipt of the Fee, Licensor grants the Licensee a non-exclusive, non-transferable Licence for the Term to access the Licensed Materials at the Location or remotely. Remote access to the Licensed Materials however may only be either via Licensee’s Secure Network (and only if fully in accordance with clauses 4.1.1 and 4.1.2), or to Authorised Users who have been issued by Licensee a password or other necessary authentication to access the Licensed Materials.
2.2 Subject to clause 6.3, except with respect to BMJ Best Practice, BMJ Case Reports, BMJ Learning, BMJ Clinical Evidence, and DTB, Licensor also hereby grants to Licensee, a non exclusive, royalty free, perpetual licence to use any of the Licensed Materials that were subscribed to via this Licence and published during the Term of this Agreement, and with the exception of any portion of the Licensed Materials that has been expunged from the archive, damaged or sold. For the avoidance of doubt should any back issues of any Licensed Materials be available to the Licensee and Authorised User during the Term, these shall not be part of the Licensee’s perpetual access rights granted herein. Such use by Licensee of any Licensed Materials for which perpetual access is granted, shall be in accordance with the provisions of this Agreement, which shall survive expiry of this Agreement. The means by which Licensee shall have access to such Licensed Materials shall be in a manner as determined by Licensor, but shall be in electronic form. Where any Licensed Materials is sold, Licensor shall use all reasonable endeavours to ensure that the purchaser can provide ongoing access to Licensee for the relevant portion of the Licensed Materials.
2.3 Licensor holds the copyright (or all necessary licences or rights of use), for all works published in the Licensed Materials, as a compilation and as to the individual articles, collectively and individually, unless otherwise expressly noted.
2.4 Neither Licensee nor any Authorised User shall claim ownership of the Licensed Material, or any intellectual property rights in the Licensed Material, by reason of their use of or access to the Licensed Material, nor make any Commercial Use of the Licensed Materials.
2.5 In addition to all other rights in this clause 2, the Licensor confirms to the Licensee that usage statistics covering the online usage of the journals and databases included in this licence will be provided with the exception of BMJ Learning (where included). The Licensor further confirms that such usage statistics will adhere to the specifications of the COUNTER Code of Practice, including data elements collected and their definitions; data processing guidelines; usage report content, format, frequency and delivery method.
2.6 The Licensor (and via its licensors), 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.
2.7 The Licensee should consult the Matrix in Schedule 5 for ease of reference regarding certain rights in this Clause 2.
3.1 All use of the Licensed Material is subject to all applicable copyright laws and fair use conventions, and reproduction of any portion of the Licensed Material (other than certain journal articles which have noted on them “Open Access Article” which have more liberal uses as set out in Clause 3.2 herein) is permitted as follows:-
3.1.1 Downloading: Downloading to screen, printing, or saving of small proportions of the Licensed Material for personal use is permissible. No Commercial Use of any part of the Licensed Material is permitted without the prior, express written permission of Licensor. Systematic downloading is prohibited as is the creation of derivative works from the Licensed Materials.
3.1.2 Braille Transcription: Licensee may transcribe any portion of the Licensed Material into Braille script or enlarged type for Authorised Users who are visually impaired.
3.1.3 Course Packs: Where Licensee is an institution, Licensee and Authorised Users may use a reasonable portion of Licensed Materials in the preparation of course packs or other educational materials for Authorised Users. Each article must carry acknowledgement of the source, title, author and publisher. Copies of such items shall be deleted by the Licensee when they are no longer required for such purpose.
3.1.4 Inter-library Loan: Notwithstanding any other provision of this Agreement, where Licensee is an institution, the Licensee may fulfill occasional request from non commercial libraries for the Inter-library Loans (“ILL”). However because of the easily reproducible nature of electronic publications, an ILL of any portion of the Licensed Materials in any electronic or digital form is expressly prohibited, unless the Licensee fulfils an electronic ILL by use of Ariel or equivalent secure transmission software which allows the article to be deleted as soon as printing. For the avoidance of doubt, no PDF document may be emailed for an ILL. Licensee may print articles from the Licensed Materials for an ILL and forward them as hard copies, provided all printing is done at the Location and at Licensee’s expense and that only a limited number of copies of such articles will be distributed in this way. Upon an adequate consideration from Licensor, the Licensee agrees to maintain records in respect of Licensees use of the Licensed Materials in such Inter-library Loans and to provide such records to Licensor upon request.
3.1.5 Neither Licensee nor Authorised Users may remove or alter the author’s names or affiliations or Licensor’s or their licensors’ copyright notices or logos or other means of identification or disclaimers as they appear in the Licensed Materials.
3.1.6 Neither Licensee nor Authorised Users may systematically make print or electronic copies of multiple extracts of the Licensed Material for any purpose other than as explicitly permitted under Clause 3.1.
3.1.7 Other than as expressly stated herein, neither Licensee nor Authorised Users may provide or make available by electronic means to any third party who is not an Authorised User paper or electronic copies of any part of the Licensed Materials.
3.1.8 Neither Licensee nor Authorised Users may mount or distribute any part of the Licensed Materials on any electronic network other than that specified in the Licence.
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:
3.2.1 such use being non Commercial Use;
3.2.2 attributing such use of the article as follows: “This article has been published in the [insert journal name] [give full reference] and can also be viewed on the journal’s website at [insert link]”
3.2.3 Such use otherwise being fully governed and in accordance with the Creative Commons Attribution Non Commercial 2.0 licence which can be accessed via http://creativecommons.org/licenses/by-nc/2.0/legalcode;
3.2.4 subject to ensuring all third party rights within all images, diagrams, photographs or other illustrative material, not owned by the authors or Licensor are cleared independently and appropriately and all the Licensor or third party trademarks are removed from any derivative works; and
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 it:
4.1.1 will undertake all necessary authentication and verification processes to ensure that only Authorised Users can access the Licensed Materials;
4.1.2 is responsible for creating and maintaining reasonable security measures, and posting policies consistent with the rights and restrictions described in this Licence to ensure that only Authorised Users can access the Licensed Materials;
4.1.3 is prohibited from making agreements for access to the Licensed Material with individuals, organizations, vendors, affiliates, or partners, which are not departments of the Licensee. Licensee affirms that all IP addresses in the range listed for authorization are specifically controlled by Licensee for workstations under its administrative control and for the use of Authorised Users. Licensee is responsible for maintaining the list of IP addresses of all Authorised Users;
4.1.4 will not knowingly permit anyone other than Authorised Users to use the Licensed Materials;
4.1.5 will, if it becomes aware of unauthorised access to the Licenced Materials, notify Licensor immediately and co-operate in locating and attempting to stop the specific individuals who are abusing the service. If the specific abuser(s) cannot be identified or stopped, Licensor has the right to withhold, suspend, or terminate access to all or any portion of the Licensed Materials, without liability;
4.1.7 will not in anyway frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Licensor or its licensors without the Licensor's express written consent. Licensee may not use any meta tags or any other "hidden text" utilising Licensor's or its licensors’ names or trade marks, without the express written consent of Licensor;and
4.1.8 will not make any Commercial Use of the Licensed Materials, without the prior express written consent of the Licensor.
6.1Either party may terminate this Agreement:
6.1.1 where the other party commits a material or persistent breach of any term of this Agreement and fails to remedy such breach (if capable of remedy) within 30 days of notification in writing from the other party; or
6.1.2 immediately upon the other party becoming insolvent, subject to receivership, liquidation or similar external administration.
6.2 Licensor may terminate this Licence if Licensee defaults in making payment of the Fee or any part of the Fee.
6.3 On termination of this Licence for just cause, access to the Licensed Materials by Licensee and Authorised Users shall be terminated.
Warranty and liability
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 OR 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.
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.
8.1 Licensor shall indemnify and hold License harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney’s fees, which arise from any claim by any third party of an alleged infringement of copyright arising out of the authorised use of the relevant Licensed Materials (subject to that component being owned by Licensor) by Licensee or any Authorised User. No limitation of liability set forth elsewhere in this Agreement is applicable to this indemnification.
8.2 Should Licensee wish to invoke the indemnity in clause 8.1 this is conditional on the following. The Licensee must promptly notify Licensor of any such claims and must not make any admission of liability and shall limit its own costs as is reasonably possible. Licensee shall provide Licensor with all necessary assistance in investigating and defending such claims as Licensor may reasonably request and have the right to participate in the defence at its own expense, subject to following all reasonable instructions of Licensor.
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 in writing 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 personal delivery to the other party, 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 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, and the Parties submit to the exclusive jurisdiction of such courts. The Parties shall not be bound by this paragraph if compliance would violate any existing law, regulations, by-laws, articles of incorporation or another governing instrument of the Licensee, subject to the Licensee informing the Licensor of this fact in writing prior to acceptance of this Agreement or within 3 days of viewing this Agreement if incorporated after a legally binding contract has come into effect, whichever is the soonest.
Creative Commons Legal Code
Attribution-NonCommercial 2.0 CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.
License THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE ("CCPL" OR "LICENSE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORISED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.
a. "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.
b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License.
c. "Licensor" means the individual or entity that offers the Work under the terms of this License.
d. "Original Author" means the individual or entity who created the Work.
e. "Work" means the copyrightable work of authorship offered under the terms of this License.
f. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.
2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.
3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:
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The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by Licensor are hereby reserved, including but not limited to the rights set forth in Sections 4(d) and 4(e).
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a. You may distribute, publicly display, publicly perform, or publicly digitally perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients' exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.
b. You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.
c. If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.
d. For the avoidance of doubt, where the Work is a musical composition:
1. Performance Royalties Under Blanket Licenses. Licensor reserves the exclusive right to collect, whether individually or via a performance rights society (e.g. ASCAP, BMI, SESAC), royalties for the public performance or public digital performance (e.g. webcast) of the Work if that performance is primarily intended for or directed toward commercial advantage or private monetary compensation.
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a. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.
b. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.
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c. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.
d. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.
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