THIS IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND ELSEVIER ("ELSEVIER"). THIS AGREEMENT APPLIES TO LICENSES ISSUED VIA THE WEB AND IS APPLICABLE TO ONLINE, DIGITAL AND PHYSICAL DELIVERY OF LICENSED CONTENT (THE "CONTENT").
1. Definitions. In this Agreement the following definitions apply:
1.1 "Invoice" means the computer-generated invoice provided by Elsevier that may include, without limitation, the permitted scope of use of the Licensed Content selected, any limitations on the license in addition to those specified herein and the corresponding price for the license of such Licensed Content. The Invoice shall be incorporated into this Agreement and all references to the Agreement shall include the Invoice.
1.2 "Licensed Content" means any illustration or digital file protected by copyright, trademark, patent or other intellectual property right, which is licensed to Licensee by Elsevier under the terms of this Agreement. Any reference in this Agreement to the Licensed Content shall be to each individual item within the Licensed Content and also to the Licensed Content taken as a whole.
1.3 "Reproduction" and "Reproduce" mean any form of copying or publication of the whole or a part of any Licensed Content, via any medium and by whatever means, and the distortion or manipulation of the whole or any part of the Licensed Content and the creation of any derivative work from the Licensed Content.
1.4 "Project and Product" mean the work or works in which the Licensed Content appears.
2. Grant of Rights & Restrictions.
2.1 Unless stated otherwise in the Invoice, Elsevier grants to Licensee a non-exclusive, non-sublicensable and non-assignable right to Reproduce the Licensed Content identified in the Invoice, solely to the extent explicitly stated in this Agreement. This right may be exercised by subcontractors of Licensee, provided that such subcontractors agree to abide by the terms of this Agreement.
2.2 Use of the Licensed Content is strictly limited to the use, medium, period of time, print run and any other restrictions specified in the Invoice. Licensee may utilize the Licensed Content in any production process that may be necessary for the intended use specified in the Invoice.
2.3 Use of the Licensed Content is one time. No more than twenty-five (25) Illustrations shall be reproduced in any one project or product at any one time. For subsequent uses of the Licensed Content, Licensee must purchase subsequent licenses.
2.4 While efforts have been made to correctly caption the subject matter of the Licensed Content, Elsevier does not warrant that such information is accurate.
2.5 Pornographic, defamatory or otherwise unlawful use of Licensed Content is strictly prohibited whether directly or in context or juxtaposition with specific subject matter.
2.6 Licensed Content shall not be incorporated into a logo, trademark or service mark.
2.7 Licensed Content shall not be used contrary to any restriction on use that is notified to Licensee prior to or at the time the Licensed Content is delivered to Licensee. Such restrictions may be included in the information provided with the Licensed Content on Elsevier website or in any other communication by Elsevier. Any such restriction provided to the Licensee shall be incorporated in this Agreement.
2.8 The granting or sale of subsidiary rights to the Licensed Content is not permitted under this agreement. Subsidiary Rights shall mean all rights to the Licensed Content not otherwise granted in this Agreement.
2.9 Upon reasonable notice, Elsevier may inspect any records, accounts and books relating to the Reproduction of any of the Licensed Content to ensure that the Licensed Content is being used in accordance with this Agreement.
3. Copyright. No ownership or copyright in any Licensed Content shall pass to Licensee by the issuance of the license contained in this Agreement. Except as expressly stated in this Agreement, Elsevier grants Licensee no right or license, express or implied, to the Licensed Content.
4. Warranty and Limitation of Liability.
4.1 Elsevier warrants that: (i) it has all necessary rights and authority to enter into and perform this Agreement; and (ii) Licensee's use of the Licensed Content in its original form, and when used in accordance with this Agreement and the Invoice, will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity.
4.2 ELSEVIER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED CONTENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ELSEVIER SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF LICENSEE'S USE OF THE LICENSED CONTENT OR OTHERWISE, EVEN IF ELSEVIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. ELSEVIER'S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE OF OR INABILITY TO USE THE LICENSED CONTENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL, TO THE EXTENT PERMITTED BY LAW, BE LIMITED TO THE VALUE PAID BY THE LICENSEE FOR THE LICENSED CONTENT.
4.3 THE REPRESENTATIONS AND WARRANTIES MADE BY ELSEVIER IN THIS AGREEMENT APPLY ONLY TO THE LICENSED CONTENT AS DELIVERED BY ELSEVIER AND WILL BE INVALID IF THE LICENSED CONTENT IS USED BY LICENSEE IN ANY MANNER NOT SPECIFICALLY AUTHORIZED IN THIS AGREEMENT OR IF LICENSEE IS OTHERWISE IN BREACH OF THIS AGREEMENT.
5.1 Provided Licensed Content is only used in accordance with this Agreement and Licensee is not otherwise in breach of this Agreement, Elsevier shall defend, indemnify and hold Licensee harmless from all damages (except punitive damages), liabilities and expenses (including reasonable attorneys' fees and permitted and authorized costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that Elsevier is in breach of its warranties given in section 4 above.
THE FOREGOING STATES ELSEVIER ENTIRE INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 4 ABOVE.
5.2 If Licensee's use of the Licensed Content is not authorized by this Agreement, Licensee shall defend, indemnify and hold Elsevier and its parent, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees harmless from all damages, liabilities and expenses (including reasonable attorneys' fees and costs), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding relating to the use of such Licensed Content by Licensee, to the extent that such claim relates to the absence of a release or the Licensee's unauthorized use of the Licensed Content.
6. Notice of Defense. The party seeking indemnification pursuant to section 5 shall promptly notify the other party of such claim. At indemnifying party's option, indemnifying party may assume the handling, settlement or defense of any claim or litigation, in which event indemnified party shall cooperate in the defense thereof. Indemnified party shall have the right to participate in such litigation, at its expense, through counsel selected by indemnified party. The indemnifying party will not be liable for legal fees and other costs incurred prior to the other party giving notice of the claim for which indemnity is sought.
7. Parties' Obligation. Upon notice from Elsevier, or upon Licensee's knowledge that any Licensed Content is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which Elsevier may be liable herein, or if Elsevier withdraws any Licensed Content for any good reason, Licensee will physically remove the Licensed Content from its premises, computer systems and storage (electronic or physical) and, if possible, cease any future use at its own expense. Elsevier shall provide Licensee with comparable Licensed Content (which comparability will be determined by Elsevier in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this Agreement.
8. Electronic Storage. For all Licensed Content that Licensee takes delivery of in electronic form, Licensee must retain the copyright symbol, the name of Elsevier and the image number or other identification number associated with the Licensed Material as may be included as part of the electronic file. Licensee may not make additional high-resolution copies of the Licensed Content and Licensee will maintain a robust firewall to safeguard against unauthorized third-party access to the Licensed Content. Notwithstanding the foregoing, Licensee may make one (1) high-resolution backup copy of the Licensed Content for security reasons only. Upon the expiration of this Agreement, Licensee shall promptly delete the Licensed Content from its computer or other electronic storage systems and shall ensure that its sub-contractors do likewise.
9. Condition of Licensed Content. Licensee should examine all Licensed Content for possible defects (whether digital or otherwise) before sending any Licensed Content for Reproduction. Without prejudice to section 4.1. (ii) above, Elsevier shall not be liable for any loss or damage suffered by Licensee or any third party, whether directly or indirectly, arising from any alleged or actual defect in any Licensed Content or its caption or in any way from its Reproduction.
10. Credit Lines for Editorial Use. Any Licensed Content that is Reproduced will be accompanied by the following credit line, "[republication date]. Used with permission of Elsevier. All rights reserved." The credit line must appear adjacent to the Licensed Content. If any Licensed Content Reproduced by Licensee omits the requisite credit line, an additional fee equal to two times the original amount invoiced shall be payable by Licensee at Elsevier's discretion. The foregoing fee shall be in addition to any other rights or remedies that Elsevier may have at law or in equity.
11. Miscellaneous Terms.
11.1 Unauthorized Use. Any use of Licensed Content in a manner not expressly authorized by this Agreement or in breach of a term of this Agreement constitutes copyright infringement, entitling Elsevier to exercise all rights and remedies available to it under copyright laws around the world. Licensee shall be responsible for any damages resulting from any such copyright infringement, including any claims by a third party. In addition and without prejudice to Elsevier other remedies under this Agreement, Elsevier reserves the right to charge and Licensee agrees to pay a fee equal to five times Elsevier normal license fee for use of the Licensed Content.
11.2 Governing Law. This Agreement will be governed in all respects by the laws of the State of New York, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from this Agreement or its enforceability shall be settled by binding arbitration to be held in New York, New York. If Elsevier and Licensee are unable to agree on the location of the arbitration, Elsevier decision shall be final. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. Notwithstanding the foregoing, Elsevier shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against Licensee in the event that, in the opinion of Elsevier, such action is necessary or desirable.
11.3 Severability. If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
11.4 Waiver. No action of Elsevier, other than express written waiver, may be construed as a waiver of any provision of this Agreement. A delay on the part of Elsevier in the exercise of its rights or remedies will not operate as a waiver of such rights or remedies, and a single or partial exercise by Elsevier of any such rights or remedies will not preclude other or further exercise of that right or remedy. A waiver of a right or remedy on any one occasion will not be construed as a bar to or waiver of those rights or remedies on any other occasion.
11.5 Entire Agreement. This Agreement, including the Invoice, contains all the terms of the license agreement and no terms or conditions may be added or deleted unless made in writing and signed by an authorized representative of both parties. In the event of any inconsistency between the terms contained herein and the terms contained on any purchase order or other communication sent by Licensee, the terms of this Agreement shall govern.