The terms and conditions listed below govern access to, and use of: Publications and the Digital Library (if ordered) as supplied by us or our US affiliates (the “Publication Services”) and the materials and content available therein as supplied by us or our US affiliates (“Materials”), provided by LexisNexis, a division of RELX Inc. and its affiliated companies (collectively “LN”). The terms “you” and “your” in uppercase or lowercase shall mean the entity (e.g., company, corporation, partnership, sole proprietor, etc.) or government agency entering into these terms and conditions with LN. These terms and conditions, together with the Order Form and Additional Terms, and any digital rights management (“DRM”) included in the Electronic Publications, and terms posted within the Digital Library, constitute the entire agreement between you and us in relation to the provision of the Publication Services and the Materials (“this Agreement”).
The following are definitions for additional terms used below.
Clauses 1 and 2 only apply to the Digital Library and Electronic Publications.
1. GRANT OF LICENSE; RESTRICTIONS ON USE
1.1 You are granted, during the term of this Agreement, a nonexclusive, non-transferable, limited license to access and use the Digital Library and Electronic Publications and Materials from time to time made available by us to you only for the internal purposes of: (a) research or study; and (b) providing professional services to your clients. This license is a license for your Authorized Users (defined below) to use the Digital Library and Electronic Publications and the Materials only in the manner set out in this Agreement.
1.2 Using the commands of the Digital Library and Electronic Publications, you and your Authorized Users may:
1.3 In addition to the rights to Materials set forth in Clause 1.2, and to the extent permitted by applicable copyright law and not further limited or prohibited by the Supplemental Terms, you and your Authorized Users may:
1.4 You and your Authorized Users may not:
1.5 All right, title, and interest (including all copyrights and other intellectual property rights) in the Digital Library and Electronic Publications and Materials, regardless of the form of medium, belong to us or our third party suppliers. You acquire no ownership of copyright or other intellectual property rights or proprietary interest in the Digital Library and Electronic Publications, or copies thereof, except the limited rights granted herein.
1.6 The following terms also apply to the Digital Library:
1.7 You will respect and deploy the DRM settings on the Digital Library and Electronic Publications as designated by LN that may restrict burning, copying, sharing and/or printing of the Digital Library and Electronic Publications. In the event LN learns of attempts to circumvent such DRM protections either by you or your Authorized Users, LN shall in its sole discretion, be permitted to temporarily suspend and/or permanently terminate Authorized User's and/or your access to the Digital Library and Electronic Publications.
2. ACCESS TO SERVICES
2.1 With respect to access to the Digital Library and Electronic Publications, you agree that:
2.2 Except for use incidental to occasional, short-term travel, you may not use a LN ID to access the Digital Library and Electronic Publications and Materials from outside the country for which it was issued.
2.3 Your LN IDs may be restricted from accessing certain Materials otherwise available in the Digital Library and Electronic Publications based upon: (a) Materials you subscribe to; and (b) Materials your Authorized Users are qualified to access. Depending on several factors including the content ordered on each product or service, your subscriptions to any Publication Services Product may not mirror the Online Service subscription Materials.
2.4 Materials and features of the Digital Library and Electronic Publications may be added to, withdrawn from, or otherwise changed by LN without notice. In the event any such change results in the removal of a significant portion of the Digital Library eBook titles from the Digital Library, LN and you will negotiate in good faith to make an appropriate adjustment to the amounts payable under the Digital Library Order. If the parties are unable to agree upon an appropriate adjustment, then you may terminate this Agreement upon written notice to LN. Not all eBooks or other Electronic Publications are available in all eBook or other electronic formats.
2.5 Subject to Clause 2.4 above, the Digital Library and Electronic Publications may contain a feature that will allow your Authorized Users to upload documents to be used in the Digital Library and Electronic Publications (e.g., the Digital Library may allow you to upload your policies) (“Subscriber Documents”).
2.6 Materials and Digital Library and Electronic Publications are further limited by and subject to the Supplemental Terms for Specific Materials (“Supplemental Terms”), conditions published online, contained within a publication or product, online descriptions of files, online notices following file selection, and individual documents retrieved from the Digital Library and Electronic Publications (collectively, “Additional Terms”), all of which are incorporated by reference herein. Any conflict between the provisions of this Agreement and the Additional Terms will be resolved in accordance with Clause 6.13.
2.7 With respect to access to the Digital Library, contacts and support shall be as follows:
2.8 For the Digital Library, any supported internet browser may be used at your discretion. However, full functionality may not be available if the most current version of mainstream internet browser is not used.
3. LIMITED WARRANTY
3.1 We represent and warrant that we have the right and authority to make the Publication Services and Materials available pursuant to the terms and conditions of this Agreement.
3.2 Materials are provided for reference purposes only and are not intended, nor should they be used, as a substitute for professional advice or judgment or to provide legal or medical advice with respect to particular circumstances.
3.3 EXCEPT AS OTHERWISE PROVIDED IN CLAUSE 3.1, THE PUBLICATION SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND LN AND EACH THIRD PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHNATABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
4.1 A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from: (a) any errors in or omissions from the Publication Services or any Materials available or not included therein; (b) the unavailability or interruption to the supply of the Publication Services or any features thereof or any Materials; (c) you or your Authorized User’s use or misuse of the Publication Services or Materials (regardless of whether you received any assistance from a Covered Party in using or misusing the Publication Services); (d) the loss or corruption of any data or equipment in connection with the Publication Services; (e) the content, accuracy, or completeness of Materials; (f) any delay or failure in performance beyond the reasonable control of a Covered Party; or (g) any content retrieved from the Internet even if retrieved or linked to from within the Publication Services, all regardless of whether you received assistance in the use of the Publication Services from a Covered Party.
4.2 “Covered Party” means: (a) us, our affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of us or our affiliates; and (b) each third party supplier of Materials, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or any of their affiliates.
4.3 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE PUBLICATION SERVICES OR MATERIALS SHALL NOT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE PUBLICATION SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION.
WITH RESPECT TO A PUBLICATION, LN WARRANTS IT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR 30 DAYS. YOUR EXCLUSIVE REMEDY AND THE SOLE OBLIGATION OF LN FOR A DEFECTIVE PUBLICATION SHALL BE THAT LN SHALL PROVIDE A REPLACEMENT COPY OF A DEFECTIVE PUBLICATION OR REPAIR OR REPLACE THE SAME.
4.4 TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER YOU NOR THE COVERED PARTIES SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, OR DATA, OR OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, LEGAL FEES, IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE PUBLICATION SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A COVERED PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS’) INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO US OR OUR THIRD PARTY SUPPLIERS.
4.5 Notwithstanding anything to the contrary herein, if there is a breach of warranty in Clause 3.1, then we, at our option and expense, will either defend you or indemnify and hold you harmless against proceedings or damages based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to the use of the Publication Services or Materials, provided: (a) the third party claim was not caused by your improper use of the Publication Services or Materials; (b) you give us prompt notice of such third party claim; (c) you give us the sole right to control and direct the investigation, defense and settlement of such claim; and (d) you, at our expense, reasonably cooperate with us in connection with the foregoing.
4.6 If the Online Services or the operation thereof become, or in the opinion of LN are likely to become, the subject of a claim of infringement, LN may, at its option and expense: (a) procure for you the right to continue using the Publication Services; (b) replace or modify the Publication Services so that they become non-infringing; or (c) terminate this Agreement on notice to you and grant you a pro-rata refund or credit (if either is applicable) for any fees or fixed charges you may have pre-paid.
4.7 The provisions of Clauses 4.5 and 4.6 shall constitute your sole and exclusive remedy for the respective matters specified therein.
5. SUBSCRIPTIONS; PRICING; TERM; TERMINATION; RENEWAL; RETURNS
5.1 The term of this Agreement begins upon the date noted in your billing account and continues until terminated.
5.2 Publications may be offered as one-time sales/licenses, subscriptions (either with or without auto-renewal), or subscriptions with multi-year offered multi-year pricing (“Multi-Year”) (either with or without auto-renewal at the end of the multi-year commitment). The following describes the types of subscriptions:
Bookstores may return overstock of new, unmarked, and undamaged books in the original packaging within 12 months of the date of the original invoice or within 24 months of the date of the original invoice for Study Aids and receive 100% refund of the publication price. A copy of the original invoice must be included with the return. Shipping and handling fees are not a part of the publication price, are not refundable, and additional shipping and handling fees must be paid on returns.
5.3 We may, without notice to you, suspend or terminate this Agreement: (a) if you breach this Agreement or otherwise infringe on any intellectual property rights granted herein; or (b) if you breach or otherwise fail to comply with any other obligation in this Agreement (including payment obligations). Without prejudice to the foregoing, if you fail to pay any sum properly due hereunder, we reserve the right to seek enforcement of the full contract sum as well as to seek recovery of our legal costs and other expenses incurred by us in connection with your breach.
5.4 On termination of this Agreement, any license granted under this Agreement terminates, and you agree to cease all use of the Electronic Publications and Digital Library (as applicable), and, from all Display Devices (whether such Display Devices are the property of you or personal Display Devices of Authorized Users), return or destroy all Electronic Publications and Digital Library eBooks and delete electronic or magnetic copies of the Electronic Publications and Digital Library eBooks and purge all downloaded (machine-readable/electronic) Materials. If the Electronic Publication has an expiration date, you will cease use of, and destroy the outdated Electronic Publication. LN disclaims any and all liability associated with use of outdated Electronic Publications or Electronic Publications beyond their expiration date, if any. Additionally, for CDs, we and our licensors retain outright ownership of all CD-ROM discs. We do not require return of the CD-ROM discs delivered to you either at the end of the subscription period covering the CD-ROM discs or upon receipt by you of replacement CD-ROM discs. Consequently, you will not be able to access CD-ROM discs delivered to you after their expiration date. After the expiration date of a CD-ROM or upon receipt of an updated CD-ROM, you will cease use of and destroy the previous or outdated CD-ROM.
6.1 Change to Number of Authorized Users. In the event of a change in Your organizational structure (i.e., mergers, acquisitions and divestitures), or there is organic growth within the organization, resulting in a significant change in the number of Authorized Users of the Publication Services and Materials, LN in good faith reserves the right to adjust the amounts payable under this Amendment to reflect the change in your use of the Selected Services.
6.2 License Terms. Effective upon notice to you, we may add, modify or otherwise change any rights to, or restrictions on, the use of the Publication Service and Materials as the same are currently set forth in this Agreement (the “License Terms”). If we exercise these rights, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Authorized Users but will apply to all similarly situated LN customers using the Publication Services. If any changes made to the License Terms are unacceptable to you, you may terminate the Agreement upon 30 days’ written notice to us of the change that is unacceptable to you. For your termination to be effective under this Clause, we must receive your notice of termination within 90 days of the date of the change. Continued use of the Publication Services following the effective date of any change constitutes acceptance of the change but does not affect your other termination rights.
6.3 Confidential Information. This Agreement (including the parts, such as any Order Form related there to) contain confidential information, including pricing information, of LN (the “Confidential Information”). You understand that disclosure of the Confidential Information could cause competitive harm to LN. You agree to receive and maintain the Confidential Information in trust and confidence and to take reasonable precautions against its disclosure to any third person.
6.4 Notices. Except as otherwise provided herein, all notices and other communications to you hereunder shall be in writing or displayed electronically in the Publication Services by the provider thereof. Notices to you shall be deemed to have been properly given on the date mailed, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Notices to us should be sent to your account representative with a copy sent to LexisNexis, Attention: Chief Legal Officer, RE: Publication Services, 9443 Springboro Pike, Miamisburg, OH 45342.
6.5 Third Party Beneficiaries. Each third party supplier of Materials has the right to assert and enforce these provisions directly on its own behalf as a third party beneficiary. OverDrive is a third party beneficiary to this Agreement with regard to the Application Services only. The failure of us or any such third party beneficiary to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. Subject to the Clause 6.6, this Agreement does not confer any rights on any person or party other than the parties to this Agreement.
6.6 Assignments. You may not assign or sublicense this Agreement or your rights or obligations hereunder, directly or indirectly, without our prior written consent, which consent shall not be unreasonably withheld. We may assign this Agreement to any successor to all or substantially all of our business or assets that relate to the subject matter of this Agreement whether by asset or stock acquisitions, merger, consolidation or otherwise.
6.7 Successors and Permitted Assigns. Subject to Clause 6.6, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
6.8 Force Majeure. Non-performance of either party shall be excused to the extent that performance is rendered impossible where failure to perform is a result of actions omissions or circumstances beyond the reasonable control of the non-performing party, such as fire, weather, civil disturbance, act of military or court or governmental authority, strike (provided such strike is not caused by that party’s employees), change in law or other governmental regulations or act of God.
6.9 Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that you may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure by us to object to such terms, provisions or conditions.
6.10 Governing Law. This Agreement and the Additional Terms shall be governed by and construed in accordance with the laws of Ohio regardless of the law that might otherwise apply under applicable principles of conflicts of law.
6.11 Limitation of Action. You may not bring a claim of action, regardless of form, arising out of or related to amounts billed or payments made under an Order Form more than 12 months after we first invoiced those amounts to you.
6.12 Order of Precedence. If there is a conflict between the terms and conditions of this Agreement, an Order Form, Additional Terms and any other document incorporated herein, the conflicting terms will be interpreted as narrowly as possible in the area of conflict and the conflict will be resolved by giving precedence in the following order: (a) the Additional Terms; (b) the terms of the Order Form; (c) the terms and conditions of this Agreement; and (d) the terms and conditions of any other document incorporated by reference herein.
6.13 Data and Privacy Laws. Our ability to provide Materials is subject to a variety of privacy, data protection and other laws in a variety of jurisdictions (“Data Laws” or “Privacy Laws” or both whichever is appropriate) and by the licenses under which it obtains Materials (“Licenses”).
6.14 Headings. The headings in the Agreement are for convenience only, and in no way affect the terms and conditions herein.
6.15 Amendments. Except in accordance with Clause 6.2, this Agreement may not be amended, except in writing executed by both parties.
6.16 Waiver. The waiver by either party of breach or default under this Agreement does not constitute the waiver of any subsequent breach or default. If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force and will be enforced to the maximum extent permissible by applicable law so as to effect the intent of the parties.
6.17 Trademarks. You grants to LN the limited right to use and display any trademarks, logos or service marks (collectively, “Subscriber Trademarks”) provided by you to LN for the express purpose of co-branding your customized adaptation of the Digital Library. LN shall not use the Subscriber Trademarks for any other purpose. You represent and warrant to LN that it is the owner of the Subscriber Trademarks and/or has all necessary rights to grant this license to LN.
6.18 Payment Options. Orders accompanied by full payment may be entitled to a discount. Subscription Service orders may be paid in full within 25 days from the date of your monthly statement or in equal monthly installments based on the subscription term. If payments are made in equal monthly installments, then LN or the applicable affiliated company will maintain a purchase money security interest in the product or publication until such time the outstanding charges are paid in full. All other invoices must be paid in full within 25 days from the date of your monthly statement.
6.19 Late Charges. Overdue amounts will be assessed a late payment charge that will be compounded at a monthly rate of 1.167% or the maximum provided by law, whichever is less. There is a minimum late payment charge of ten dollars ($10.00).
6.20 Credit Investigation. You hereby authorize us to make whatever credit investigation we deem appropriate in order to provide you with a Publication.
6.21 Collection Costs. In the event you fail to pay any amount when due, we reserve the right to terminate the Publication Service(s) and retain all sums paid by you. In addition, you are responsible for all collection costs incurred by us including, but not limited to, collection agency fees, reasonable attorneys’ fees and court costs. At our option, the entire amount due shall become due and payable upon your breach of any term, provision or condition of this Agreement. We retain a purchase money security interest in all publications and supplements until paid in full by you.