1. APPLICABILITY AND DEFINITIONS
1.1 The Agreement means the agreement between on the one hand Kluwer Law International
bv ( “Licensor”) and on the other hand the customer (“Licensee”)
on the basis of the Order Form as defined herein, the Acceptance as defined herein
and the present Terms and Conditions. The Terms and Conditions shall apply on any
offer or agreement with the exclusion of any terms and conditions used by the Licensee.
1.2 The following terms shall have the following meanings:
- Licensed Material: any content provided by Licensor to Licensee;
- Software: the programs and ancillary files provided by Licensor for the
purpose of accessing and using the Licensed Material.
- Product: Manual of Industrial Property online, the Licensed
Material and the Software and any part thereof.
- Network: any system allowing access to the Product via any communications
link except by remote access as defined herein.
- Local Area Network: a Network within a single site.
- Wide Area Network: a Network over more than one site.
- Site: the physical location(s) or address(es) at which the Product will
be used as per the Order Form, or in default thereof the Licensee’s principal
place of business.
- Remote access:any system that allows access to the Product via any form
of remote telephone access via modem or similar device.
- Online Access:the access to the Product offered as the “Online”
Product by the Licensor on the Internet (www.KluwerManualIP.com);
- Order Form: Licensor’s standard order form, or if not used by Licensee,
any document detailing the order in combination with Licensor’s Acceptance.
- Acceptance: Licensor’s acceptance of the order by way of invoice
or separate note;
- Start Date: the date indicated on the invoice on which this Agreement takes
effect;
- Renewal Date: an anniversary of the Start Date
- License Fee: the fee for using the Product.
- Renewal Fee: the fee to be paid annually prior to the Renewal Date.
2. GRANT OF LICENSE
2.1 The Licensor hereby grants to Licensee a non-exclusive, non-transferable License
to use the Product at the Site, in accordance with the terms and conditions hereof.
2.2 Where the Product is supplied on a trial-basis for evaluation purposes, Licensee
may use the Product for evaluation during the period agreed, in accordance with
the terms and conditions hereof and shall at the Licensee’s cost cease use
of the Product and return any part of the Product at the end thereof.
3. PERIOD OF LICENSE
3.1 This Agreement shall remain in force for 12 months from the Start Date and shall
automatically renew for 12 months at any anniversary of the Start Date unless the
Licensee has given 1 month written notice of termination to the Licensor prior to
the anniversary of the Start Date.
3. 2 Upon termination of this Agreement for any reason whatsoever Licensee will
cease using the Product and return any part of the Product delivered to Licensee.
4. PRICES AND PAYMENT OBLIGATIONS
4.1 Licensee undertakes to pay Licensor the License Fee within 28 days of receipt
of the invoice and the Renewal Fee prior to each Renewal Date, increased with VAT
where applicable and dispatching and/or administration costs. Invoicing will take
place yearly.
4.2 Licensor reserves the right to change the License Fee and/or the Renewal Fee
with effect from the Start Date or Renewal Date subject to 30 days prior notice.
4.3 If payment of any Fee has not been received by Licensor within 28 days of the
invoice date, Licensee will be in default without any further notice being required.
4.4 Licensor reserves the right to withhold delivery of the Product and any updates
thereof until all outstanding fees and costs are paid.
5. TERMINATION ON BREACH
Licensor may terminate this License forthwith by written notice sent by courier,
first class post or fax or via e-mail to Licensee if:
(a) Licensee has committed an irredeemable breach of this Agreement; or
(b) after Licensee, in Licensor’s reasonable opinion, has failed to remedy
a remediable breach of these terms and conditions within 14 days of being given
notice to do so, or
(c) Licensee is made bankrupt or enters into liquidation or any arrangement
with creditors or has a receiver or administrative receiver appointed such termination
being prejudice to any other claim which Licensor may have.
6. OWNERSHIP AND PERMITTED COPYING
6.1 The Product is not sold to Licensee who shall not acquire any right, title or
interest in:
(a) the Product;
(b) the media upon which the Product is supplied;
(c) any documentation or material made available to Licensee which shall remain
the property of Licensor.
6.2 All rights in the Product whether these exist or may come into existence which
are not specifically granted to Licensee by this Agreement are expressly reserved
to Licensor or to such other rights holders as stated on the Product.
6.3 Any copyrighted material is reproduced with the permission of the copyright
holder.
6.4 Licensee shall not sublicense the Product to others and Licenseewarrants that
access will not be given to the Product to any person not being an employee, partner
or student of Licensee’s, firm, company, organisation, university or other
entity. Any access to the Product given by Licensee must comply with the terms and
conditions stated in this agreement.
6.5 Except as permitted by law, by installation instructions supplied by Licensor
to Licensee and by this Agreement, Licensee shall not itself nor allow any third
party to duplicate or otherwise reproduce the Product or any part thereof.
7. PERMITTED AND PROHIBITED USE
7.1 Licensee shall use the Product and shall take all reasonable steps to ensure
that its employees and partners shall use the Product only:
(a) for its own business purposes;
(b) by the user(s) specified on the Order Form;
(c) at the Site(s) specified on the Order Form;
(d) for the permitted purposes set out in the Agreement.
7.2 Licensee shall not use the Product, allow access to the Product, or divulgue
any extract of the Product or any such result thereof other than for the purpose
set out in Section 7.1 nor allow or authorise the Product to be used for the purpose
of operating a bureau or similar service or any online service whatsoever.
7.3 Licensee, its employees or partners on its behalf, during the normal course
of Licensee’s business, and, where Licensee’s business is the provision
of library services, bona fide on-site users of those services, may for the purposes
of research:
(a) view the Product on screen;
(b) print extracts from the Product;
(c) transmit by print, fax, e-mail, or other method, extracts from the Product between
employees, partners or agents of Licensee;
(d) transmit by print, fax, e-mail, or other method, extracts from the Product to
third parties only in connection with the provision of professional advice provided
that no additional fee is directly or indirectly charged for each transmission.
7.4 All extracts must clearly reproduce the copyright notice(s) and Licensee shall
not do or omit to do or authorise any other person to do or omit to do any act which:
(a) would or might invalidate or be inconsistent with any Intellectual Property
Right of Licensor in the Licensed Material and/or Software
(b) would be in breach of or otherwise inconsistent with the moral rights of the
authors of the items comprising the Product.
7.5 Licensee shall not erase, remove, deface or cover any trademark, trade names,
numbers, copyright or other proprietary notices, guarantee, designation of origin,
means of identification, disclaimer or other statement used on any media containing
the Product or used in relation to it, nor shall Licensee authorise another person
to do so.
7.6 Licensee shall promptly inform Licensor if Licensee becomes aware of:
(a) any unauthorised use of the Product
(b) any actual, threatened, or suspected infringement of any intellectual property
right of Licensor in the Product, and
(c) any claim by any third party that the Product infringes the intellectual property
or other rights of any other person.
7.7 Licensee shall at the request and expense of Licensor do all such things as
may be reasonably required to assist Licensor in taking or resisting proceedings
in relation to any infringement or claim referred to in this Clause and in maintaining
the validity and enforceability of the intellectual property of Licensor in the
Product.
7.8 Except insofar as permitted by law, Licensee shall not modify, reverse assemble,
decompile or reverse engineer the Product or any part thereof, or permit any third
party to do so.
7.9 Licensee shall not, except to the extent necessary to exercise the rights
granted under this Agreement :
(a) make any alterations, additions or amendments to the Product;
(b) combine the whole or any part of the Product with any other software, data or
material
(c) create derivative works from the whole or any part of the Product
7.10 In no circumstances may the Software be used separately from the Licensed Material.
8. SUPPLY
8.1 Licensor will supply to Licensee the Product.
8.2 Licensor may at any time make modifications or improvements to the Product.
8.3 Licensor may at any time withdraw from the Product any material included in
it:
(a) if Licensor ceases, for whatever reason, to publish the publication from which
such material is taken or otherwise no longer retains the right to publish such
material;
(b) if in Licensor’s reasonable opinion such material contains any matter
which infringes copyright or is defamatory, obscene, unlawful, or otherwise objectionable.
9. UPDATES
9.1 During the period of the Agreement, Licensor will use all reasonable endeavours,
if and to the necessary extent, to make and supply updates to the Product.
9.2 Licensor reserves the right to employ hardware or software methods including
timelocks to render superseded versions of the Product inoperable.
10. ONLINE ACCESS
10.1 The Licensee will be issued with a unique user name and a unique password (or
any other means of personal identification), which the Licensee shall only use or
allow to be used for the permitted use at the Site. The Licensee shall keep the
identification information confidential and not disclose, disseminate or pass it
on to employees, partners, group companies, branch offices, business relations or
others for use from other locations than the Site or by other than the permitted
users.
10.2 Licensor has the right to replace Licensee’s unique user name and unique
password (or any other means of personal identification) if and when illegal access
to the Product has been ascertained. In that case, Licensee will be timely informed
of the replacement.
10.3 Although reasonable care is given to ensure uninterrupted use of the Product,
Licensor shall not be liable for any temporary difficulties Licensee may encounter
in Online accessing the Product whether due to telephone connections, down time
of the internet server at the provider, maintenance, virus detection or elimination
or any other reason whatsoever.
10.4 Without prejudice to any other remedy Licensor may have by law in the event
of breach of the obligation in this clause, Licensee shall become due and owing
without any further notice being required to Licensor by way of penalty a sum equal
to the fee for worldwide unlimited access applicable at the time of such breach.
11. LICENSOR WARRANTIES
11.1 Licensor warrants that it has obtained all necessary rights to grant this License.
11.2 Licensor warrants that the physical medium on which the Product is carried
will be free from defects for a period of 90 days from delivery.
11.3 Whilst reasonable care is taken to ensure the accuracy and completeness of
the Product supplied, Licensor makes no representations or warranties whatsoever,
express or implied, that the Product is free from errors or omissions.
11.4 Whilst reasonable care has been taken to exclude computer viruses, no representation
or warranty is made that the Product is virus free. Licensee shall be responsible
to ensure that no virus is introduced to any computer or network.
11.5 Licensee has satisfied itself prior to entering the Agreement that the Product
meets Licensee's individual requirements and is compatible with Licensee’s
hardware/software configuration and no failure of any part or the whole of the Product
to be suitable for those requirements will give rise to any right or claim against
Licensor.
11.6 The warranties set out in this clause are exclusive of and in lieu of all other
warranties, conditions, terms, undertakings, and obligations whether implied or
expressed by law.
11.7 Licensor shall not be liable for any loss of whatsoever kind or for any indirect
or consequential loss whatsoever, howsoever suffered by Licensee or for any liability
of Licensee to any third party in connection with the Product (whether or not caused
by the negligence of Licensor).
11.8 The aggregate maximum liability of Licensor in respect of any direct or other
loss (to the extent that such loss is not excluded by this Agreement or otherwise)
whether such a claim arises in contract, tort or delict shall not exceed a sum equal
to that paid as the last annual License Fee for the Product.
11.9 Licensor shall not be liable for the use of the Product by Licensee, its agents
and employees and Licensee shall keep Licensor fully indemnified against any claims,
costs, damages, loss and liabilities arising out of any such use.
12. MISCELLANEOUS
12.1 Where two or more legal entities constitute Licensor and/or Licensee their
liability shall be joint and several.
12.2 These terms and conditions together with the Order Form constitute the entire
Agreement between the parties and may only be varied in writing signed by both parties.
12.3 Neither this Agreement nor any of the rights and obligations of Licensee hereunder
may be assigned, transferred, charged, delegated, sublicensed, or otherwise
disposed of in whole or in part on a temporary or permanent basis unless Licensee
has obtained the prior written consent of Licensor.
12.4 No delay or forbearance by Licensor in enforcing any provisions of this Agreement
shall be construed as a waiver of such provision or an agreement thereafter not
to enforce the said provision on that or any other occasion or another provision
on another occasion.
12.5 These Terms of Use are governed by and construed in accordance with the laws
of The Netherlands. The sole jurisdiction and venue for any action that may arise
under or in relation to the subject matter hereof shall be the courts of The Netherlands.
