Last updated: January 2023
For purposes of the following (the “Agreement”), “Stacks” is Stacks; the “Licensor” is EBSCO Information Services; the “Licensee” is the entity or institution that makes available services offered by Stacks; the “Sites” are the Internet websites offered or operated by Licensee from which Authorized Users can obtain access to the Services; and “Authorized User(s)” are employees, students, registered patrons, walk-in patrons, or other persons affiliated with Licensee or otherwise permitted to use Licensee’s facilities and authorized by Licensee to access Services. “Services” shall also mean Stacks and related products to which Licensee has purchased a subscription. Stacks disclaims any liability for the accuracy, completeness or functionality of any material contained herein, referred to, or linked to. Stacks assumes no responsibility for errors or omissions nor any liability for damages from use of the information contained herein. Persons engaging in the procedures included herein do so entirely at their own risk.
The following terms used herein shall have the meanings set forth below throughout this Agreement, except as expressly indicated to the contrary herein.
1.2 “Authorized User” means Customer's employees, students, registered patrons, walk-in patrons, or other persons affiliated with Customer or otherwise permitted to use Customer's facilities (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
1.3 “Confidential Information” means any business, financial, operational or technical information provided by one party hereunder to the other party that is marked or otherwise identified as confidential or proprietary or that the receiving party knows or should know is confidential or proprietary. In addition, the parties acknowledge and agree that: (a) the proprietary information of Customer as to which EBSCO may have access in connection with performing its obligations hereunder constitute Confidential Information of Customer; and (b) the Services, Documentation and other deliverables furnished by EBSCO under this Agreement (including, but not limited to the material provided in training classes) and the terms of and pricing under this Agreement constitute Confidential Information of EBSCO.
1.4 “Documentation” means EBSCO’ online help, including user guides, implementation support and other materials made available by EBSCO as part of the Services, whether in electronic and/or printed media.
1.5 “Effective Date” means the date that this Agreement is effective as set forth in the opening paragraph. As to any addendum, it is the date listed on such addendum.
1.6 “Intellectual Property Rights” means an effective copyright, trademark or patent, in each case existing under the laws of the United States of America.
1.7 “Order”: means any of EBSCO’s generated service order forms executed or approved by Customer with respect to its subscription to a Service.
1.8 “Customer Data” means the data provided by Customer or its Authorized Users to EBSCO in connection with the Services.
1.9 “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to EBSCO or licensed by EBSCO for inclusion in the Services.
1.10 “Term” means the period during which Customer has agreed to subscribe to a Service as set out in the Order.
1.11 “Services” means the software-as-a-service offering described in the Order.
ARTICLE II. SERVICES
2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, EBSCO hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 8.2) right to access and use the Services and Documentation during the Term, solely for use by Customer and its Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
2.2 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Documentation, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, Documentation, and the Third-Party Materials are and will remain with EBSCO and the respective rights holders in the Third-Party Materials.
2.3 Use of Services. Customer shall not, and shall not permit any other person or entity to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. As between Customer and EBSCO, Customer is responsible for compliance with the provisions of this Agreement by its Authorized Users and for any and all activities that occur under its account.
2.4 Suspension or Termination of Services. EBSCO reserves the right, in its reasonable discretion, to temporarily suspend Customer’s access to and use of a Service if (a) EBSCO suspects or detects Customer or any Authorized User (i) has failed to comply with any term of this Agreement; or (ii) is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (b) this Agreement expires or is terminated.
2.5 Delivery. The Service shall be made available for Customer to access via the Internet. A high-speed Internet connection is required for proper transmission of the Services. Customer is responsible for procuring and maintaining the network connections that connect Customer’s network to the Services, including, but not limited to, “browser” software that supports protocols used by EBSCO. EBSCO assume no responsibility for the reliability or performance of any connections as described in this section.
2.7 [Personal Data. To the extent Customer Data constitutes personal data, the Data Processing Addendum attached as Addendum will apply.]
2.8 [Service Levels. EBSCO’s provision of the Services will be in compliance with the Services Levels described in Addendum.]
2.9 [Professional Services. EBSCO shall render the professional services specified in Addendum]
2.10 [Health Related Information. EBSCO’s provision of the Services will be subject to the specifications described in Addendum.]
ARTICLE III. PAYMENT
3.1 Payment and Invoices. Customer will pay EBSCO the fees in accordance with the relevant Order.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
4.1 Mutual Representations & Warranties. Each party represents and warrants that it has the right and authority to enter into this Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its
property is or may become subject or bound.
4.2 WARRANTY DISCLAIMER. ALL SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS." EBSCO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, EBSCO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR EBSCO MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
4.3 Third Party Materials. All Third-Party Materials are provided “as is” and any representation or warranty of or concerning any Third-Party Materials is strictly between customer and the third-party owner or distributor of the Third-Party Materials. Customer further agrees that it is responsible for acquiring and maintaining all licenses for Third-Party Materials it elects to integrate into the Services, and its use will be subject to the pertinent purchase or license agreement between Customer and the relevant third- party. Any amounts payable to third-parties under such agreements are the sole responsibility of Customer and shall be paid directly by Customer to such third-party.
ARTICLE V. CONFIDENTIALITY
5.1 Confidential Information. Each party receiving or having access to Confidential Information of the other party agrees to maintain the confidentiality of such Confidential Information. Each party will protect the Confidential Information of the other party with the same degree of care it exercises relative to its own Confidential Information, but not less than reasonable care. Each party receiving Confidential Information of the other party agrees that it shall not sublicense, assign, transfer or otherwise display or disclose such Confidential Information to any third party and shall not reproduce, perform, display, prepare derivative
works of, or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall make commercially reasonable efforts to prevent the theft of any Confidential Information of the other party and/or the disclosure, copying, reproduction, performance, display, distribution and preparation of derivative works of the Confidential Information except as expressly authorized herein. Both parties agree to restrict access to the Confidential Information of the other only to employees and consultants who require access in the course of their assigned duties and responsibilities in connection with this Agreement.
5.2 Exceptions. The obligations of the parties in respect of the Confidential Information of the other party shall not apply to any material or information that:
(a) is or becomes a part of the public domain through no act or omission by the receiving party, (b) is independently developed by employees or consultants of the receiving party without use or reference to the Confidential Information of the other party as documented by competent written evidence; (c) is disclosed to the receiving party by a third party that, to the receiving party’s knowledge, was not bound by a confidentiality obligation to the other party, or (d) is demanded by a lawful order from any court or any body empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, provide the other with a copy of such order and to provide reasonable assistance to the disclosing party (at the disclosing party’s expense in the case of reasonable out-of-pocket expenses) to object to such disclosure.
5.3 Enforcement. Each party agrees that in the event of a breach or threatened breach by it (including its employees, subcontractors, consultants or agents) of the provisions of this Article VI, the other party shall have no adequate remedy in money or damages and, accordingly, will be entitled to injunctive and
other equitable relief for such breach in addition to and not in limitation of any other legal or equitable remedies to which it would otherwise be entitled.
ARTICLE VI. INDEMNITY
6.1 EBSCO Indemnity. EBSCO will defend or settle any suit brought by a third party against Customer alleging that the Services infringe any Intellectual Property Right of any third party and EBSCO shall indemnify Customer for damages awarded as a result of such infringement claim, provided that EBSCO is given prompt notice of any such claim and sole control of the defense of such claim, including negotiations, appeals, and settlements. Customer agrees to provide reasonable information and assistance to EBSCO in defending any claim. Notwithstanding the foregoing, EBSCO will not have liability for any claim to the extent that such claim results from: (a) any modification of the Services made by any party other than EBSCO; (b) a modification or enhancement to the Services pursuant to designs provided by Customer; (c) the combination, operation or use by Customer of any software, equipment or devices not supplied by EBSCO to the extent the claim would have been avoided if the Services were not used in such combination; or (d) Third-Party Materials.
6.2 Customer Indemnity. Customer will indemnify and defend EBSCO and its affiliates from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys' fees, that are incurred by EBSCO and its affiliates arising out of any third party claim related to the Customer Data and any other materials or information provided by or on behalf of Customer or any Authorized User.
6.3 Mitigation. If the Service is held to infringe, or in EBSCO’ opinion the Service is likely to be held to infringe any Intellectual Property Rights of a third party, EBSCO may at its discretion and expense, either: (a) secure the right for Customer to continue use of the infringing Service; (b) replace or modify the infringing Service to make it noninfringing, provided such Service contains substantially similar functionality; or (c) terminate the access to the infringing Service granted hereunder. If EBSCO elects to terminate Service access under the foregoing provision, it shall credit to Customer pro- rata, unamortized portion of any prepaid subscription fees for the infringing Service following the date of termination.
6.4 Sole Remedy. SECTION 6.1 SETS FORTH CUSTOMER'S SOLE REMEDIES AND EBSCO'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND EBSCO MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY
6.5 LIMITATION OF LIABILITY. EBSCO SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY UNDER THIS AGREEMENT FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING
OUT OF OR RESULTING IN ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOSS OF PROFIT, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS. THE PARTIES AGREE THAT EBSCO’ MAXIMUM AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL BE AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM.
ARTICLE VII. TERM; TERMINATION
7.1 Term. The term of this Agreement (the “Term”) shall commence upon the Effective Date and, subject to EBSCO’ timely receipt of all licensing fees owed herein, shall continue until the expiration of the last applicable Service subscription period granted under the Order, unless terminated pursuant to the terms
of this Agreement. The term of any particular subscription to Services hereunder shall be extended on successive annual basis unless either EBSCO or Customer gives notice to the other at least sixty (60) days prior to the expiration date of the then current Term. [The Fee for the Services shall increase 10% upon the renewal of the Term.]
7.2 Termination. If either party breaches a provision of this Agreement, the other party shall give the breaching party written notice of such breach. If the breaching party fails to cure the breach (other than failure to pay) within thirty (30) days, the non- breaching shall have the right to terminate this Agreement; provided that if the breach is a failure of Customer to pay any amount when due, EBSCO shall have the right to terminate this Agreement upon written notice to Customer. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.3 Effect of Termination; Survival. Upon termination or expiration of this Agreement, all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate. Obligations relating to Confidential Information and to pay amounts owing as of the termination or expiration date shall survive termination. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 4.2, Section 5.1, Article VI, Section 7.3, and Article VIII.
ARTICLE VIII. GENERAL PROVISIONS
8.1 Export. Customer acknowledges that the Services and all Documentation and other technical information delivered by EBSCO pursuant to this Agreement are subject to export controls under United States laws including but not limited to the Export Administration Act and the regulations promulgated hereunder. Customer agrees to: (a) comply strictly with all legal requirements established under these controls; (b) cooperate fully with EBSCO in any official or unofficial audit or inspection that relates to these controls; and (c) not export, re-export, divert, transfer, or disclose directly or indirectly, any Services or Documentation to any country, or to the nationals of any such country, which the United States government determines is a country to which such export, re-export, diversion, transfer, or disclosure is restricted, without obtaining the prior written authorization of EBSCO and the applicable United States government agency. Any breach of this provision shall be considered a material breach of this Agreement.
8.2 Assignment. Customer shall not assign this Agreement or any subscription or license granted hereunder for any reason (except for an assignment by operation of law in connection with a merger or similar transaction), without the prior express written consent of EBSCO. EBSCO may assign this Agreement to another entity provided that such entity assumes EBSCO’ obligations under this Agreement. Any other attempt to sublicense, assign or transfer the Agreement or the subscriptions and licenses hereunder shall be void.
8.3 Force Majeure. Neither party will be responsible for any failure or delay in its performance (other than failure to pay) under this Agreement due to causes beyond its reasonable control which makes performance commercially impractical, including but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, Internet access, raw materials or supplies, war, riot, or act of God.
8.4 Notices. In the case of any required notice to EBSCO under this Agreement, such notice shall be in writing and will be deemed to have been duly given when: (a) delivered by hand (with written confirmation); or (b) when sent by a party if sent by nationally recognized overnight delivery service or First Class U.S. Mail (receipt requested). Notices to EBSCO shall be sent to: 10 Estes Street, Ipswich, MA 01938, Attention: Chief Legal Officer; and any notice to Customer hereunder shall be sent to the address set forth on the Order form (or to such other address and contact as a party may indicate in a notice to the other).
Entire Agreement. This Agreement and any addenda to this Agreement executed by both parties or incorporated herein by reference constitute the entire understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, whether oral or written. There are no representations, promises, warranties or understandings relied upon by Customer which are not contained herein. Any modifications to this Agreement must be in writing and signed by both parties. The failure by either party to insist upon strict enforcement of any terms and conditions of this Agreement shall not constitute a waiver of such right.
8.5 Partial Invalidity. If any provision of this Agreement is held to be unenforceable, such decision shall not affect the validity or enforceability of all the remaining provisions.
8.6 Choice of Law. This Agreement shall be governed by the internal laws of Massachusetts (without giving effect to its choice of law provisions). Any actions relating to this Agreement shall be brought only in the state of Massachusetts, and Customer consents to venue and jurisdiction therein and hereby waives any right to object to jurisdiction or venue or to request a transfer therefrom.
8.7 Legal Fees. In any collection action or litigation relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s and para-professional fees from the non-prevailing party.
8.8 Counterparts. This Agreement may be signed in one or more original, electronic or facsimile counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement.
9. ADDITIONAL TERMS
9.1 Product Use indicates Acceptance of Agreement Terms herein. This Agreement constitutes the entire agreement between you and Stacks regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. This Agreement creates no third party beneficiary rights.