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BMJ Publishing Group Limited: Individual Online Licence Agreement

 

This individual online agreement ("the Agreement") is made between the BMJ Publishing Group Limited ("Licensor") and the individual purchasing the online subscription ("Licensee").

 

  1. Key Definitions
    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 "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.
    • "Fee" means the subscription fee payable by the Licensee for the Licensed Material as set out on the Website.
    • "Licence" means the Licence set out in Clause 2 below.
    • "Licensed" means the electronic version of the Licensor’s publication(s) which the Licensee subscribes to.
    • "Site" means the electronic site on which the Licensed Materials will be displayed.
    • "Start Date" means the date upon which the contract between the Licensor and Licensee comes into effect.
    • "Location" means one year from the Start Date, unless terminated earlier under Clause 6.
    • "Website" means http://journals.bmj.com and relevant subdomains.
  2. The Licence
    • 2.1 In consideration of receipt of the Fee, Licensor grants the Licensee a non-exclusive, non-transferable Licence to access the Licensed Materials with a password or other necessary authentication to access the Licensed Materials.
    • 2.2 Subject to clause 6.3, except with respect to, Best Health, Best Practice, BMJ Case Reports, BMJ Learning, Clinical Evidence and DTB. Licensor also hereby grants to Licensee, a non exclusive, royalty free, perpetual licence to use 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 Licensees 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 The Licensee shall not claim ownership of the Licensed Material, or any intellectual property rights in the Licensed Material, by reason of its use of or access to the Licensed Material.
    • 2.5 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 rights to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable.
  3. Permitted Uses
    • 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 for personal, non Commercial Use as follows:
      • 3.1.1 Access the Site in order to search the Licensed Materials, and to view and retrieve small proportions thereof;
      • 3.1.2 Electronically save small portions of the Licensed Materials; and
      • 3.1.3 Print out single copies of portions of the Licensed Materials.
    • 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 Commerical 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 as set out in Schedule 1;
      • 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 Group has been established), have prominently displayed on them the statement:
        "This is an unofficial translation of an article that appeared in a BMJ Group publication. Neither BMJ Group or its licensors have endorsed this translation".
    • Licensee's Obligations
      • 4.1 Licensee agrees that the Licence is personal to the Licensee and:
        • 4.1.1 it will not knowingly permit anyone else to use designated passwords so to access the Licensed Materials;
        • 4.1.2 it 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; and
        • 4.1.3 will not remove, cover, overlay, obscure, block, or change any copyright notices, legends, or terms of use which Licensor or its licensors may post on the Site in order to inform users about system features, terms of use, or copyright notices;
        • 4.1.4 it will not systematically make printed or electronic copies of multiple portions of the Licensed Materials for any purpose or created any derivative works from the Licensed Materials;
        • 4.1.5 create any derivative works from the Licensed Materials;
        • 4.1.6 display or distribute any part of the Licensed Materials on any electronic network, including without limitation, an intranet, the internet and the Worldwide Web; or
        • 4.1.7 make any Commercial Use of the Licensed Materials.
    • Technical Access
      • 5.1 Licensor intends for the Site to be available 24 hours per day, 7 days per week. However, neither to the fullest extent permitted by law, Licensor nor any of its licensors will be liable for damages or refunds should the Site become unavailable or access to the Site becomes slow or incomplete due to system back-up procedures, internet traffic volume, upgrades, overload of requests to the servers, general network failures or delays, or any other cause which may from time to time make the Site inaccessible to Licensee.
    • Termination
      • 6.1 Either 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 On termination of this Licence for just cause, access to the Licensed Materials by Licensee and Authorised Users shall be terminated.
    • Warranty and Liability
      • 7.1 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 OF 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 AND THIS DOES NOT EFFECT THE LICENSEE’S STATUTORY RIGHTS.
      • 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.
    • Indemnities
      • 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 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, the Licensee must promptly notify Licensor of any such claims at its own expense and not make any admission of liability and shall limit its own costs as is reasonably possible. The 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.
    • General
      • 9.1 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 hand written 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 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 To the fullest extent permitted by law, 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 save where it is necessary for Licensor for enforcement to bring proceedings to bring an action in an alternative jurisdiction.

 

Date of document: November 2008

SCHEDULE 1

 

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.

 

  1. Definitions
    1. "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.
    2. "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.
    3. "Licensor" means the individual or entity that offers the Work under the terms of this License.
    4. "Original Author" means the individual or entity who created the Work.
    5. "Work" means the copyrightable work of authorship offered under the terms of this License.
    6. "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:
    1. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;
    2. to create and reproduce Derivative Works;
    3. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;
    4. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works;
    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).
  4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions:
    1. 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.
    2. 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.
    3. 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.
    4. 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.
      2. Mechanical Rights and Statutory Royalties. Licensor reserves the exclusive right to collect, whether individually or via a music rights agency or designated agent (e.g. Harry Fox Agency), royalties for any phonorecord You create from the Work ("cover version") and distribute, subject to the compulsory license created by 17 USC Section 115 of the US Copyright Act (or the equivalent in other jurisdictions), if Your distribution of such cover version is primarily intended for or directed toward commercial advantage or private monetary compensation.
    5. Webcasting Rights and Statutory Royalties. For the avoidance of doubt, where the Work is a sound recording, Licensor reserves the exclusive right to collect, whether individually or via a performance-rights society (e.g. SoundExchange), royalties for the public digital performance (e.g. webcast) of the Work, subject to the compulsory license created by 17 USC Section 114 of the US Copyright Act (or the equivalent in other jurisdictions), if Your public digital performance is primarily intended for or directed toward commercial advantage or private monetary compensation.
  5. Representations, Warranties and Disclaimer
    UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.
  6. Limitation on Liability.
    EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  7. Termination
    1. 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.
    2. 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.
  8. Miscellaneous
    1. Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.
    2. Each time You distribute or publicly digitally perform a Derivative Work, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.
    3. 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.
    4. 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.
    5. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection to this license. Notwithstanding the foregoing two (2) sentences, if Creative Commons has expressly identified itself as the Licensor hereunder, it shall have all rights and obligations of Licensor.

Except for the limited purpose of indicating to the public that the Work is licensed under the CCPL, neither party will use the trademark "Creative Commons" or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons. Any permitted use will be in compliance with Creative Commons' then-current trademark usage guidelines, as may be published on its website or otherwise made available upon request from time to time.

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