ELECTRONIC PUBLICATIONS MASTER AGREEMENT
The following terms and conditions (this ”Agreement“) apply to use of any electronic version of a publication made available by LexisNexis, a division of Reed Elsevier Inc. or its U.S. affiliates (”LN“). This Agreement applies to CDs, DVDs, eBooks, PDFs, flash drives or other offline publications distributed electronically by LN (”Electronic Publications“), but does not apply to, and expressly excludes the LexisNexis Digital Library or e–lending library which shall be subject to different or additional terms. In addition to the terms of this Agreement, use of any Electronic Publication shall also be subject to the terms embedded in the Electronic Publication, if any, including digital rights management (”DRM“) or click–through terms. By accessing and using an Electronic Publication, you agree to these terms.
1. LIMITED RIGHT TO ACCESS AND USE ELECTRONIC PUBLICATIONS.
1.1 General Rights Granted; Restrictions. You are hereby granted a non–exclusive, non–transferable limited license to access and use the Electronic Publication for your own internal research purposes. This license includes the right to:
1.1.1 for an Electronic Publication for which a single user/single publication fee has been paid, the right to use the Electronic Publication on a single personal computer, e–reader, tablet, mobile device, or other display device (”Display Device“) for a single user or the number of Display Devices expressly permitted by the DRM, if any;
1.1.2 for an Electronic Publication for which a Multi–User or Multi–User Network fee has been paid, the right to use the Electronic Publication on a Multi–User Network under your exclusive control. For purposes herein, ”Multi–User Network“ means a computer system and network upon which multiple users may access the Electronic Publication or its contents concurrently;
1.1.2 unless otherwise restricted by the embedded DRM, occasionally transfer the Electronic Publication from one Display Device to another so long as the Electronic Publication is displayed on only one Display Device at a time.
1.1.3 create a printout or electronic copy of an insubstantial portion of materials retrieved from the Electronic Publication (”Materials“) solely for your research needs (e.g., legal research, trial preparation, document assembly, etc.), and the right to incorporate insubstantial portions of Materials into your work product for distribution to clients, the courts, opposing counsel, etc. in the normal course of your business.
1.2 Restrictions on Use. Except as expressly permitted herein, you may not, nor permit others to:
1.2.1 copy, reverse engineer, decompile, disassemble, derive source code, modify, or create compilations or derivative works of the of the Electronic Publication;
1.2.2 remove, disable, or defeat any functionality in the Electronic Publication designed to limit or control access to or use of the Electronic Publication;
1.2.3 except as otherwise provided herein, provide any person that is not an Authorized User access to the Electronic Publication, or any portion thereof, without the express written permission of LN;
1.2.4 use the Electronic Publication to develop a database, infobase, online or similar database service, or other information resource in any media (print, electronic or otherwise, now existing or developed in the future) for commercial sale or use by others or make the Electronic Publication available through any timesharing system, service bureau, the Internet, or any other similar technology now existing or developed in the future;
1.2.5 use the Electronic Publication in any fashion that may infringe any copyright, intellectual property right, or proprietary or property right or interest of LN or its data suppliers; or
1.3 Electronic Publications –– Library Patrons. If you are a public or private library described in 17 U.S.C. 108 (a) (2), you may allow your patrons to access and use the Electronic Publications and create limited printouts of Materials provided that you:
1.3.1 limit use to a single user personal computer under your exclusive control; and
1.3.2 do not permit the Electronic Publications to be borrowed or removed from your premises or to be accessed by telephone dial up, the Internet, or other remote access; and
1.3.3 do not permit patrons to make digital or electronic copies of the Electronic Publications or any portion thereof except as an intermediate step in creating the printouts allowed under Section 1.3.5 below; and
1.3.4 require library patrons who wish to use the Electronic Publications to agree to abide by the terms of Section 1.3.5 below, prior to their use of the same; and
1.3.5 post on or by each personal computer containing or providing access to the Electronic Publications the following notice:
”The Materials accessible from this terminal are licensed to the library for limited purposes and subject to the following restrictions. You, as a patron of the library, may use the Materials solely in the regular course of your legal research and related work and subject to all the limitations in the library's agreement with the provider of the Materials. You may not copy, store in a retrieval system, publish, reproduce, transfer, store or distribute the Materials, or any portion thereof, in any form except to transfer an insubstantial portion of the Materials to create printouts of the Materials solely for use in your legal research. You may not use the Materials, or any portion thereof, to develop a database, infobase, or other information service for resale or reuse.“
1.3.6 You shall notify us of any unauthorized use of the Electronic Publications by library patrons and shall cooperate fully with us in any resulting legal action.
2. OWNERSHIP RIGHTS AND PROTECTION OF INTELLECTUAL PROPERTY.
2.1 Ownership. The Electronic Publications and any copyrights, trademarks, patents, trade secrets, intellectual property rights and other proprietary rights in and to the Electronic Publications are owned by LN or its data suppliers and you do not obtain any right, title or interest therein. You hereby assign to LN all copyrights, intellectual property rights, and any other proprietary or property rights or interests in and to any work created in violation of this Agreement.
2.2 Trade Secrets. The technology used in the Electronic Publications is a trade secret, and you shall maintain any information learned about that technology as a trade secret and shall not disclose such information or permit such information to be disclosed to any person or entity; however, this sentence shall not restrict you in training your employees in the ordinary use of the Electronic Publications.
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.
4. LIMITED WARRANTY; DISCLAIMER.
4.1 LN represents and warrants that it has the right and authority to make the Electronic Publications available to you on these terms. LN further represents and warrants that the Electronic Publications shall be of a quality suitable to provide access to and use of the Materials used on compatible equipment and a compatible operating system for a period of twelve months after the date the Electronic Publications is shipped, downloaded, or otherwise made available to you (“Warranty Period”).
4.2 EXCEPT AS EXPRESSLY STATED IN SECTION 4.1, LN MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CAPABILITY OF THE ELECTRONIC PUBLICATIONS OR THE ACCURACY OR THE COMPLETENESS OF THE MATERIALS. THE ELECTRONIC PUBLICATIONS AND MATERIALS ARE FURNISHED ON AN “AS IS”, AS–AVAILABLE BASIS. ALL WARRANTIES OF ANY TYPE NOT EXPRESSLY STATED IN THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
5. LIMITATION OF LIABILITY; LIABILITY DISCLAIMERS
5.1 Neither LN nor any Supplier (collectively, the ”LN Parties“) shall 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 Electronic Publications or any Materials available or not included therein, (b) the unavailability or interruption of the Electronic Publications, (c) your use of the Electronic Publications, (d) your use of any equipment in connection with the Electronic Publications, or (e) the content of any Materials. Furthermore, LNís sole obligation, and your exclusive remedy for any defective Electronic Publication is for LN to replace or refund the cost of any defective Electronic Publications, provided that you have given LN written notice of the deficiency and have returned the Electronic Publications to LN within the Warranty Period, if required.
5.2 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE LN PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE ELECTRONIC PUBLICATIONS EXCEED THE AMOUNT PAID BY YOU FOR THE DEFECTIVE PUBLICATION. THE LN PARTIES SHALL HAVE NO RESPONSIBILITY TO YOU UNDER THIS SECTION 5 WITH RESPECT TO ANY USE OF AN ELECTRONIC PUBLICATION IN A MANNER NOT AUTHORIZED BY THIS AGREEMENT OR FOR YOUR ABUSE OR MODIFICATION OF THE ELECTRONIC PUBLICATIONS. UNDER NO CIRCUMSTANCES WILL LN OR ANY RELATED PARTY OR SUPPLIER BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR FOR LOSS OF PROFITS, REVENUE, OR DATA; WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
5.3 Notwithstanding anything to the contrary in this Section 5, LN shall, as its sole obligation and your exclusive remedy, defend or, at LNís option, settle any action or proceeding of any kind or description based upon a third party's claim of patent, trademark, service mark, copyright or trade secret infringement, related to use of the Electronic Publications (excluding any decisions or advice made or given as a result of the use of or reliance upon the Materials) provided by us asserted against you by such third party provided: (i) all use of the Electronic Publications was in accordance with these terms and conditions; (ii) the claim, cause of action, or infringement was not caused by you; (iii) LN is given prompt notice of any such claim; and (iv) LN has the right to solely control and direct the investigation, defense and settlement of each such claim. You, at LNís expense, shall reasonably cooperate with LN in connection with the foregoing. If notified promptly in writing of any claim, demand, or judicial action brought against you based on an allegation that your use of the Electronic Publications constitutes infringement, LN will pay the costs, including reasonable attorney fees, associated with resolving such claim and will pay the judgment or settlement amount (if any).
Should the Electronic Publications or the operation thereof become, or in LNís opinion be likely to become, the subject of a claim of infringement, you shall permit LN, at its option and expense, either (i) to procure for you the right to continue using the Electronic Publications, (ii) to replace or modify the same so that it becomes non–infringing; or (iii) terminate your use of the Electronic Publications upon notice to you and grant you a pro–rata refund or credit (whichever is applicable) for any pre–paid fees or fixed charges.
6. CHANGES TO THE AGREEMENT. From time to time and immediately upon notice to you, we may amend the then existing terms and conditions of the Agreement. Changes to charges and payment terms may be made only upon 30 days' prior written notice to you. The Agreement may be immediately terminated by you upon notice to us if any such change is unacceptable to you. Your continued use of the Electronic Publications following notice to you of a change shall constitute your acceptance of the respective change.
7. COPYRIGHT. Notwithstanding any copyright notices to the contrary, no copyright is claimed by LN in the text of statutes, regulations, or court opinions quoted or reproduced in the Materials.
8. PROFESSIONAL RESPONSIBILITY. The Electronic Publications are not intended to be a substitute for the exercise of your professional judgment.
9.1 Term; Termination. LN may suspend or discontinue providing the Electronic Publications or Updates thereto to you without notice and pursue any other remedy legally available to LN if you fail to comply with any material obligation under this Agreement. If LN terminates this Agreement for your breach, you shall not be entitled to a refund of any fee paid or any credit on amounts invoiced.
9.2 Obligations Upon Termination. Upon the termination, cancellation or expiration of the Agreement for any reason and by either party, you agree to cease all use of the Electronic Publications, return or destroy all Distributed Media and delete electronic or magnetic copies of the Distributed Media and purge all downloaded (machine–readable/electronic) Materials
9.3 Limitation on Actions. You may not assert any claim or course of action against us arising out of or in connection with your use of the Electronic Publications more than one year after the date the claim or cause of action arose.
9.4 Notices. All notices and other communications under the Agreement shall be in writing. Notices shall be deemed given on the date deposited in the U.S. mail, if mailed; or on the date received, if delivered in any other manner. Notices to LN shall be sent to your LexisNexis Company sales representative with a copy to: LexisNexis, Attn: Chief Legal Officer, 9443 Springboro Pike, Miamisburg, OH 45342.
9.5 Assignment. You are prohibited from assigning your rights or delegating your duties without the prior written consent from LN.
9.6 Failure to Enforce. The failure of either party to enforce any provision of these terms and conditions shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
9.7 Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Ohio as they apply to contracts made and solely performed therein.
9.8 Force Majeure. LN shall not be liable or be deemed to be in default for any delay or failure in performance or interruption of Electronic Publications resulting directly or indirectly from any cause beyond LNís reasonable control.
9.9 Survival of Sections. Sections 1, 2, 3, 4, 5, 9.2, 9.3, 9.7 and 9.9 shall survive termination or expiration of the Agreement.
9.10 Headings. The headings of sections in the Agreement are for convenient reference only, and in no way affect the terms and conditions herein.
9.11 Cancellation. eBooks are non-cancellable once purchased.