This License sets forth the terms and conditions under which Wiley Subscription Services, Inc. (“Wiley”), a Delaware corporation will provide the Community College League of California (the “Licensee”), with access to the electronic edition of the Products and Services subscribed to by the Licensee via Wiley InterScience, an online service.
A. DEFINITIONS
The following terms shall be deemed to have the meaning as set forth below:
1. Wiley InterScience - The online Service available from Wiley or its affiliates on the Worldwide Web including all products, services and features offered through the Service.
2. Licensee – The Consortium named above, which has been authorized to sign this License by agreement with and on behalf of its Member Institutions (“Member Institutions”) listed in Appendix A, who have agreed to participate in this License as part of the Consortium. Each such participating Member Institution shall provide access, via its Secure Network, to Wiley InterScience for its Authorized Users as defined in this License Agreement, and is responsible for the payments specified in the attached Appendices and for the implementation of the License. “Secure Network” as used herein includes the designated terminals of the Member Institutions, which provide access to the Internet via the Member Institution’s IP ranges and includes Authorized Users dialing into such Secure Network from outside such designated terminals.
The term “Licensee” shall be deemed to include each such participating Member Institution in the singular and all such Members, as the case may be, as well as the Consortium signing on their collective behalf. When constituent Member Institutions of the Consortium agree in writing to the terms of their participation in this License by executing the Sign-Up Letter in the form attached hereto as Appendix J, they are deemed to be included in the definition of the Licensee as parties to the Agreement. Appendix A will include information on I.P. addresses covered by this License and contacts for each such Member Institution, and each Appendix for a Licensed Electronic Product will specify financial terms for each Member Institution.
3. Authorized Users - Those persons who are authorized by the Licensee to have access to Wiley InterScience. Authorized Users must be bona fide faculty members, students, researchers, staff members, librarians, executives or employees of the Licensee, or contractors engaged by the Licensee, provided such contractors have been informed of, and agree to abide by, the Terms and Conditions of Use set forth herein and they access Wiley InterScience via the Licensee’s secure network. Walk-in Users from the general public or business invitees may also be permitted by the Licensee to access Wiley InterScience from designated terminals with a Licensee-controlled IP address. These designated terminals shall be physically located in libraries or similar physical premises directly controlled by the Licensee.
4. Electronic Products - All products, services and content available in Wiley InterScience shall be deemed included within the definition of Electronic Products. Details specific to the type of electronic products or services licensed hereunder such as pricing and the Licensee’s access rights are provided in the appropriate appendix. These products and services are defined as follows:
(a) Licensed Electronic Products - The electronic (online) editions of Wiley journals and other publications and the content therein, including but not limited to major reference works, Current Protocols laboratory manuals and databases which the Licensee has licensed hereunder as specified herein and in the appropriate appendices.
(b) Licensed Electronic Services – The electronic features and services in Wiley InterScience available to the Licensee and its Authorized Users, as follows.
1. EarlyView – publishes peer reviewed, fully citable articles online as soon as they are ready, before the release of the compiled journal print issue.
2. MobileEditions – enables Authorized Users to download complete tables of contents and abstracts of select journals directly into their handheld Personal Digital Assistant (PDAs).
3. ContentAlert – allows Authorized Users to request and receive via e-mail the tables of contents from any of the journals available online in Wiley InterScience and to receive notification of articles newly published which match specified search criteria.
4. Roaming Access – enables Authorized Users access to licensed content from outside the IP address range of the Licensee. Authorized Users must sign up for this service and renew every 90 days.
B. ACCESS PRIVILEGES
1. Wiley grants to the Licensee and its Authorized Users, during the Term as defined below, a non-exclusive, non-transferable right and license to access, via Wiley InterScience, the full text and other material such as datasets published online in Wiley InterScience for the Licensed Electronic Products as listed in the appendices attached hereto as may be amended from time to time, but only on the terms and conditions described herein.
2. In addition, Authorized Users will have unlimited access to all available Tables of Contents, article abstracts, chapter summaries and websites for all Electronic Products on Wiley InterScience.
3. The number of the Licensee’s Authorized Users who may log onto Wiley InterScience is unlimited.
4. The Licensee acknowledges that the Electronic Products and Wiley InterScience are protected by copyright. All rights not specifically granted to the Licensee are expressly reserved.
C. TERMS AND CONDITIONS OF USE
1. The rights and restrictions governing access to Wiley InterScience and the Electronic Products by the Licensee and its Authorized Users are outlined in the Terms and Conditions of Use below.
a. Authorized Users may download, view, copy and save to hard disk or diskette and store or print out single copies of individual articles, chapters or entries in the Licensed Electronic Products for the Authorized User’s own personal use, scholarly, educational or scientific research or internal business use. Authorized Users may also transmit such material to a third-party colleague in hard copy or electronically, for personal use or scholarly, educational, or scientific research or professional use but in no case for re-sale. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from individual articles, chapters or other entries from the Licensed Electronic Products in the Authorized User’s own scientific, scholarly and educational works such as books and articles.
b. All Authorized Users have the option to create a My Profile Page which will allow them to create data files and links to articles, chapters and entries of interest in the Licensed Electronic Products, and search criteria which may be reused by them. In order to do so, the Authorized User will have to select and register a user name and password which the Authorized User must keep confidential and not disclose to or share with anyone else.
c. The Licensee and its Authorized Users may create links to Wiley InterScience from their Online Public Access Catalog (OPAC) records, library catalogs, locally hosted databases or library web pages, provided those links do not result in access to licensed content by anyone other than Authorized Users, or for use in any paid or commercial service.
d. Authorized Users who are members of the Licensee’s faculty or staff may download and print out multiple copies of material from Licensed Electronic Products for the purpose of making a multi-source collection of information for classroom use (course-pack) to be distributed to students at the Licensee's institution free of charge or at a cost-based fee. Material from Licensed Electronic Products may also be stored in electronic format in secure electronic data files for access by Authorized Users who are students at the Licensee’s institution, as part of their course work.
e. The Licensee’s library staff may print out and send single paper copies of articles, chapters or entries from the Licensed Electronic Products for interlibrary loan.
2. Except as provided in Paragraph C(1) above, Authorized Users may not copy, distribute, transmit or otherwise reproduce material from Electronic Products; store such material in any form or medium in a retrieval system; or transmit such material, directly or indirectly, for use in any paid service such as document delivery or list serve, or for use by any information brokerage or for systematic distribution, whether or not for commercial or non-profit use, or for a fee or free of charge.
3. In order to protect the integrity and attribution of Wiley InterScience and the Electronic Products, the Licensee and its Authorized Users may not remove, obscure or modify any copyright or proprietary notices, author attribution or any disclaimer contained therein or on any screen display. Authorized Users may not integrate material from the Electronic Products with other material or otherwise create derivative works in any medium, since the exclusive right to prepare derivative works based upon the copyrighted work is vested in the copyright owners. However, brief quotations for purposes of comment, criticism or similar scholarly purposes are not an infringement of copyright and are not prohibited herein.
4. Authorized Users may not do anything to restrict or inhibit any other Authorized User’s access to or use of Wiley InterScience and the Licensed Electronic Products.
5. If an Authorized User fails to abide by these Terms and Conditions of Use or other terms of this License, Wiley reserves the right in its sole discretion to suspend or terminate such Authorized User’s access to Wiley InterScience and the Licensed Electronic Products immediately without notice, in addition to any other available remedies. Notwithstanding the above, except in the case of a material breach which Wiley deems dangerous to the integrity and security of InterScience, Wiley shall give prior written notice to the Licensee of its intention to terminate such Authorized User’s access and shall allow the Licensee and/or the Authorized User 30 days after receipt of such notice to cure the breach or agree to abide by the terms and conditions of this License.
D. FEES AND CHARGES
1. License Fees and other charges for online access to the Licensed Electronic Products by the Licensee and its Authorized Users, and other services provided by Wiley InterScience, are specified in appendices attached hereto.
2. The Licensee is responsible for any charges associated with accessing Wiley InterScience and the Licensed Electronic Products, including, but not limited to, any computer equipment, telephone or Internet connections and access software.
3. The Licensee may cancel Licensed Electronic Products without penalty provided that such changes do not exceed 10% of the value of each applicable Licensed Electronic Product category (such as journals and major reference works) for any calendar year and titles at least equal in value to the canceled titles are added to the License (which will be reflected in amendments to the appendices). Cancellations will only be accepted at the title level, not for duplicate subscriptions. For the avoidance of doubt, this means if the EAL content fee for a title is based on multiple subscriptions in the Licensee’s holdings, the Licensee cannot cancel all but one of these subscriptions and retain access to the title at a lower price. Cancellations will only be accepted on a calendar year basis and Wiley must be notified of both such cancellations and of additions in writing no later than the preceding November 1st.
E. MUTUAL OBLIGATIONS
1. Wiley will:
a. make reasonable efforts to ensure uninterrupted online access to and continuous availability of the Licensed Electronic Products to Authorized Users in accordance with this License, and to restore access to such Electronic Products as promptly as possible in the event of an interruption or suspension of the Wiley InterScience service which is not attributable to any third-party service provider over which Wiley has no control (e.g., an Internet or telecommunications service provider);
b. provide aggregate usage statistics to the Licensee about the use of the Licensed Electronic Products by the Licensee’s Authorized Users, consistent with applicable privacy laws and confidentiality requirements.
2. The Licensee will:
a. take all reasonable measures to inform Authorized Users of the Terms and Conditions of Use governing access to Wiley InterScience and to emphasize to such Authorized Users the need to comply with whatever restrictions on access, use, reproduction and transmission are included therein;
b. make access available to Authorized Users only through the Licensee’s secure network and from valid IP addresses; undertake reasonable measures within its control to prevent access to and improper use of the Licensed Electronic Products and Wiley InterScience by unauthorized persons; and take responsibility for terminating any unauthorized access of which it has actual notice or knowledge;
c. provide Wiley with information about the Licensee’s IP addresses which can be used by Wiley to authenticate Authorized Users, and which shall be listed in Appendix A as updated from time to time;
d. promptly notify Wiley of any copyright infringement or unauthorized usage of the Electronic Products which comes to the Licensee's attention; and cooperate with Wiley in the investigation of such infringement or unauthorized use and in any action which Wiley takes to enforce its copyright, at Wiley’s expense. Notwithstanding the above, the Licensee shall not be responsible for such unauthorized use which is without the express or implied consent of the Licensee, provided that the Licensee has taken reasonable steps to prevent such misuse and, upon learning of it, notifies Wiley promptly of any such breach or infringement.
F. PRIVACY AND DATA PROTECTION POLICY
Wiley recognizes the importance of protecting the information it collects in the operation of Wiley InterScience and will take all reasonable steps to maintain the security, integrity and privacy of this information. Wiley will ensure that any information it collects will be adequate, relevant and not excessive for purposes of operating Wiley InterScience; it will be kept accurate and up-to-date based on information provided and will be deleted when no longer needed. Except where necessary in connection with services provided by appropriate intermediaries, who will be required to comply with the confidentiality provisions of this policy, Wiley will not disclose any personal information identifying Authorized Users or the Licensee to any third party, unless required by law or to enforce Wiley InterScience Terms and Conditions of Use.
If use of an Electronic Product or Service offered by Wiley requires an Authorized User to provide a name and password or other personally identifiable information, the User will have the option to opt in or out of providing such information and using the Product or Service. For example, Authorized Users are given the option of creating a My Profile Page where the Authorized User may store links to Licensed Electronic Products, favorite articles, chapters and entries and search criteria, but use of a My Profile Page is voluntary on the part of an Authorized User. Any private communications or information supplied to Wiley by an Authorized User may be used by Wiley for internal business and research purposes and to help enhance and develop Wiley InterScience but will not be shared with third parties.
Wiley will only disclose to third parties navigational and transactional information in the form of anonymous, aggregate usage statistics (including “hits” on Wiley InterScience and the Licensed Electronic Products) and demographic information in forms that do not reveal an Authorized User’s or the Licensee’s identity or confidential information, except as required by law.
Links may be provided from Wiley InterScience to other websites. In using such links, Authorized Users should be aware that each website will vary in terms of its privacy and data protection policies, and Wiley does not take responsibility for the privacy policies of and usage of personal information collected by others.
Please note that Wiley’s privacy and data protection policy is reviewed periodically. Any comments or questions concerning this policy should be addressed to: Wiley InterScience Privacy Policy at uscs-wis@wiley.com.
G. TERM AND TERMINATION
1. The Term of this License shall commence on January 1, 2006 and end on December 31, 2006. At the end of the initial License Term, the License shall be automatically renewed for additional renewal terms of one year each on the same terms and conditions as specified herein and in the Appendices unless either party gives notice to the other in writing, at least 60 days prior to the end of the initial Term or a renewal Term, that it will terminate the License at the end of such Term.
2. Pursuant to Paragraph C.5 above, Wiley shall have the right to request the Licensee to terminate access to Wiley InterScience by an Authorized User who breaches Wiley's Terms and Conditions of Use or infringes copyright in the Electronic Products or Wiley InterScience.
3. Either party may terminate this License if the other party materially breaches its obligations under this License and fails to cure such material breach, provided that the non-breaching party shall give written notice of its intention to terminate and shall allow the breaching party 60 days after receipt of such notice to remedy the breach.
4. Notwithstanding subparagraph G.3 above, either party’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, governmental restrictions, power failures, or damage to or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement.
H. WARRANTY AND DISCLAIMERS BY WILEY
1. Wiley represents and warrants that it has the right and authority to make Wiley InterScience available to the Licensee and its Authorized Users pursuant to the terms and conditions of this License and that, to the best of Wiley's knowledge, Wiley InterScience and the Electronic Products do not infringe upon any copyright, patent, trade secret or other proprietary right of any third party.
2. Wiley InterScience may provide Authorized Users with links to third-party websites. Where such links exist, Wiley disclaims all responsibility and liability for the content of such third-party websites. Authorized Users assume sole responsibility for the accessing of third-party websites and the use of any content on such websites.
3. Except for the warranties provided by Wiley in paragraph H.1 above,
a. WILEY INTERSCIENCE AND THE ELECTRONIC PRODUCTS AND ALL MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
b. THE USE OF THE ELECTRONIC PRODUCTS, WILEY INTERSCIENCE AND ALL MATERIALS IS AT THE AUTHORIZED USER’S OWN RISK;
c. ACCESS TO WILEY INTERSCIENCE AND THE ELECTRONIC PRODUCTS MAY BE INTERRUPTED AND MAY NOT BE ERROR FREE; AND
d. NEITHER WILEY INTERSCIENCE, THE ELECTRONIC PRODUCTS, WILEY, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE ELECTRONIC PRODUCTS OR THE MATERIALS CONTAINED IN WILEY INTERSCIENCE, SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE AUTHORIZED USER’S USE OF OR INABILITY TO USE WILEY INTERSCIENCE, THE ELECTRONIC PRODUCTS AND ALL MATERIALS CONTAINED THEREIN.
I. CONFIDENTIALITY PROVISIONS
1. While negotiating this License Agreement and during the License Term thereafter, Wiley may provide the Licensee with certain information which may be oral or written (including information in electronic format), which is deemed confidential. For the purposes of this Agreement, Confidential Information is defined to include, but is not limited to, the terms and conditions of this License Agreement that have been negotiated, such as financial terms, the substance of all negotiations relating thereto, all information pertaining to Wiley InterScience which is proprietary to Wiley, and any other material which has either been marked “confidential” by Wiley or which, by the nature of the circumstances surrounding the disclosure, would be understood to be confidential by a reasonable party.
2. Confidential Information shall be used by the Licensee solely for the purposes of negotiating and implementing this License Agreement. The Licensee agrees to take reasonable care to protect the Confidential Information from disclosure to third parties and to limit disclosure of the Confidential Information to those employees or contractors of the Licensee including affiliates of the Licensee who have a need to know in connection with this License Agreement, and who have been made aware of, and agree to abide by, these restrictions. When disclosure is legally mandated, the parties will use, whenever possible, a version of the License Agreement without Confidential Information.
J. GENERAL PROVISIONS
1. Wiley may assign this License to its successors, subsidiaries or assigns. This License may not be assigned by the Licensee except with the prior written consent of Wiley.
2. This License shall be construed and interpreted pursuant to the laws of the State of New York applicable to contracts wholly entered into and performed in the State of New York. Any legal action, suit or proceeding arising out of or relating to this License or the breach thereof shall be instituted in a court of competent jurisdiction in New York County in the State of New York and each party hereby consents and submits to the personal jurisdiction of such court, waives any objection to venue in such court and consents to the service of process by registered or certified mail, return receipt requested, at the last known address of such party.
3. In the event of a material breach of the terms and conditions of this License by either party, the non-breaching party shall be entitled, in addition to any other remedies available pursuant to this License or at law, to equitable, including injunctive, relief.
4. Any notice, request, statement or other communication to be given hereunder to any party shall be in writing addressed to the party as follows:
If to Wiley: Wiley Subscription Services, Inc.
c/o John Wiley & Sons, Inc.
111 River Street
Hoboken, NJ 07030
Attn: Christopher McKenzie
Vice President
With copies to: Wiley Europe
The Atrium
Southern Gate
Chichester, West Sussex
PO 19 8SQ
England
Attn: C.J. Dicks
Financial Director
5. This License constitutes the complete understanding of the parties and supersedes all prior understandings between the parties with respect to the subject matter of this License. No material modification, amendment, or waiver of any provisions shall be valid unless in writing. Any waiver in one or more instances by either of the parties of any breach by the other of any terms or provisions contained in this License shall not be considered a waiver of any succeeding or preceding breach.
6. All Appendices attached or to be attached to this License are incorporated herein and shall be governed by the terms and conditions of this License unless otherwise specified in such Appendix. In the event of any conflict between the terms of an Appendix and the terms of this Agreement, the terms of the Appendix shall govern.