Updated April 28, 2015
THIS DOCUMENT CONTAINS IMPORTANT INFORMATION ABOUT EBSCO INFORMATION SERVICES’ CUSTOMER’S (“You” OR “Your”) RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
EBSCO Information Services (“EBSCO”), a division of EBSCO Industries Inc., provides e-journal, e-package, and print subscriptions; a suite of e-resource management tools; full-text and secondary databases; and related services for all types of libraries and research organizations. EBSCO maintains a title database of more than 360,000 serials and upholds relationships with more than 95,000 publishers around the world. More than 77 percent of the subscriptions handled by EBSCO have an electronic component.
EBSCO’s network of regional offices serves customers in more than 200 countries and is staffed by information professionals, including more than 140 librarians who speak the local languages and understand the particular challenges faced by librarians in these areas, offering a uniquely personal level of service. Specialized EBSCO divisions serve academic, medical, government, public, school, and special libraries, as well as corporations.
1.0. The following Terms and Conditions are between You and EBSCO, and they consist of the most recent version of EBSCO’s Terms and Conditions. These Terms and Conditions constitute a legal document that details Your rights as a customer accessing information about and utilizing the services provided by EBSCO. These Terms and Conditions shall apply to all customers to whom information and services are provided by EBSCO. By accepting the information and services provided by EBSCO, You agree to be bound by and accept these Terms and Conditions. These Terms and Conditions shall override any of Your terms, and Your terms will not form part of this agreement, unless expressly accepted in writing by EBSCO.
1.1. EBSCO reserves the right, in its sole discretion, to change, modify, add, or remove all or any part of these Terms and Conditions, including but not limited to any term, applicable fee, policy, or guideline at any time without notice or acceptance by You. Regardless of whether EBSCO has provided You notice, Your continued use of information or services provided by EBSCO shall constitute Your acceptance of this notice and any subsequent changes. It is Your responsibility to check regularly for changes to these Terms and Conditions on our website at http://journals.ebsco.com, and the version on the website shall prevail without further notice to You over all versions and shall apply to agreements entered into after the date of such posting.
1.2. With regard to sections 1.0 and 1.1, You agree to abide by these Terms and Conditions, unless You have signed another agreement with a duly authorized EBSCO representative. In that case, the terms of the prior agreement You signed with EBSCO are binding and shall prevail over these Terms and Conditions for the duration of the prior agreement. Upon termination or expiration of the prior agreement, these Terms and Conditions shall apply.
2.0 EBSCO provides Web-based account management, dedicated customer service representatives, and all the tools and resources You need to order products and content. EBSCO also places orders and sends payments to publishers; assists with e-journal registration and activation; offers effective e-resource access portals; resolves service issues and claims with publishers; and sends consolidated invoices. In addition, EBSCO offers robust reporting options; provides a consolidated renewal list; provides simplified online e-package renewal with automatic order auditing at time of order; places renewal orders; and ensures high-quality service.
2.1. When handling Your account, EBSCO aims to make ordering, claiming, and processing renewals as quick and easy as possible. We require only minimal input from You to begin each process.
2.2. As Your information agent, EBSCO enters Your orders in a timely fashion, promptly pays the publisher for those orders, and follows-up on any problems You report. We cannot accept responsibility for government mails, Internet connectivity, publisher performance (including publisher bankruptcy), or other non-agent responsibilities. However, our commitment to customer service assures that prompt action will be taken when delivery problems occur and that every effort will be made to secure complete delivery of content.
2.3. EBSCO’s liability shall be limited to those of an agency representing You to publishers. EBSCO does not assume any performance or financial responsibility for publishers. Within the limits of its authority as an agent representing You, EBSCO will exercise commercially reasonable efforts to ensure that the publishers deliver the information ordered by You.
2.4. Upon signing an agreement for EBSCO to serve as Your information agent, You have the exclusive right to select content for ordering each year. The signed agreement is valid for the dates indicated. Unless written notification of intent to cancel is given to either party by a date established in the agreement, the agreement will be considered renewed by mutual consent of both parties for each subscription year thereafter.
2.5. For each year of Your agreement, EBSCO will order content as directed by You. You will designate a person who is or people who are empowered with signature authority to act on Your behalf for order placement and renewal, and other such routine activities associated with information management.
2.6. EBSCO is not responsible for and has no control over publisher pricing.
2.7. EBSCO shall have the right to terminate Your agreement if You fail to pay Your invoices according to EBSCO’s payment terms or materially change Your ordering of content to the point where, in EBSCO’s sole judgment, the financial incentive to perform is no longer present.
3.0. EBSCO offers a number of options for ordering content. You can order content in the manner that is convenient to You, including through EBSCONET®, our information and e-resource management system, or with the support of Your customer service representative.
3.1. EBSCO takes responsibility for placing Your orders correctly and on time and making sure the publisher receives payment according to payment terms mutually agreed upon between the publisher and EBSCO.
3.2. The publisher is responsible for delivering the electronic or print content to You.
3.3. You shall be responsible for compliance with the terms and conditions established by each publication’s publisher. Additionally, no portion of a publication shall be reproduced in any form without written permission of the applicable publisher or as permitted by law or under the terms of a license issued by such publisher or a copyright licensing agency.
3.4. Average time frames for online content and print delivery depend on a number of publisher-related factors, including geographic location of the publisher in relation to Your geographic location, order processing efficiency and backlog of the publisher, and publisher delivery method.
3.5. If an order is cancelled prior to expiration, EBSCO will notify the publisher and process the cancellation for You, unless a publisher has identified the title as non-cancelable. If an eligible order is canceled, EBSCO will credit Your account in an amount equal to what EBSCO is refunded by the publisher, less a processing fee of 15 U.S. dollars or its approximate equivalent in Your billing currency.
3.6. Cancellation at time of expiration shall not incur a processing fee.
4.0. EBSCO offers a wide range of flexible invoicing options. Your customer service representative will work with You to select an option that best fits Your needs. When You sign an agreement for EBSCO to serve as Your information agent, Your preferences for invoicing will be noted.
4.1. EBSCO can supply invoices in print or in a variety of common electronic formats.
4.2. Subscriptions are invoiced at current publisher prices. Prices are subject to change without notice, based solely on the publisher’s discretion, and such price changes may occur prior to the publisher’s acceptance of the order EBSCO places on Your behalf.
4.3. EBSCO’s invoices contain useful information, including format, term, start date, quantity, fund code, integrated library system (ILS), and additional information, such as irregularities in publishing schedules.
4.4. When a publication ceases during the term of an order, EBSCO attempts to obtain a refund from the publisher for You. Upon receipt of refund from the publisher, EBSCO will credit Your account in an amount equal to the amount received from the publisher.
5.0. Prices offered are the most recent prices available. For online journal, collection, or database access, many publishers require a price quotation. EBSCO will contact publishers on Your behalf to request price quotes customized to Your organization. Pricing is also available online for EBSCO customers via EBSCONET.
5.1. Service charges may be assessed on Your subscription account. Such charges can vary by title and/or by the mix of titles on Your subscription list and are subject to change from time to time without notice.
5.2. EBSCO does not assess any postal charges beyond what the publisher charges, and all postal and delivery charges from the publisher will be included in Your invoices from EBSCO. EBSCO does offer a Journal Expediting Service (JETS) for consolidated journal deliveries for an additional charge.
5.3. EBSCO adheres to publisher pricing rules. Rates are offered specifically for each category of customer as defined by publishers, such as academic, medical, school, public, or other institutions. Titles published by the Government Printing Office (GPO) and National Training Information Service (NTIS), titles designated by the publisher as “Open Access” or “Free on Request,” and most newspapers and titles for which a publisher does not offer a sufficient discount to EBSCO incur a surcharge of up to 15 USD, GBP, EUR, AUD, NZD, or CAD depending on Your invoicing currency. In cases where Your invoicing currency is not one of these six currencies, the surcharge is the approximate equivalent in Your invoicing currency. You are responsible for paying all taxes related to Your order, including, without limitation, all applicable sales, use, consumption, and value-added taxes.
5.4 For orders requiring an exchange of currencies, EBSCO employs a full-time financial team dedicated to working with our partner banks to obtain reasonable currency trading rates. Unless otherwise noted in a separate agreement, EBSCO will use the currency trading rates obtained by its internal financial team and its internal currency pricing systems to process and price Your orders for titles not available in Your billing currency. EBSCO is not responsible for changes in pricing that result from fluctuations in currency.
6.0. Unless otherwise noted in a separate agreement, net payment is due upon receipt of invoice. Late payment incurs a charge of 1 percent per 30 days on unpaid balances, beginning on the 61st day.
6.1. Overpayments will be credited to Your account and reflected on Your next monthly statement.
6.2. Credits will remain on Your account until You advise EBSCO to apply the credit to outstanding invoices. You may request reimbursement in cases where Your account has a credit balance and there are no outstanding invoices. EBSCO provides monthly statements for Your account management.
7.0. EBSCO’s renewal lists are provided to You for Your review, approval, and submission to EBSCO to ensure timely renewal of Your content. EBSCO works within a timetable for renewals that assures You have time to make buying decisions and enables us to send the orders and payments to publishers in a timely manner.
8.0. The options available to You to make claims or notify EBSCO of other service issues include EBSCONET®, contacting Your customer service representative, or via Electronic Data Interchange (EDI) through Your integrated library system. Claims for print content should be submitted in a timely manner, as many publishers have a time limit during which they will replace the missing or damaged issue with no additional fee. Some publishers refuse to replace issues for late claims. EBSCO shall not be responsible for missing or damaged issues.
8.1. For print content, please allow four to six weeks for weekly publications and six to eight weeks for monthly publications for the publisher to adjust or fulfill a claim. If the problem has not been corrected in that length of time, You should initiate a follow-up request with Your customer service representative or via EBSCONET®.
8.2. If You must follow up on a claim on print content, please note that issues are mailed directly from the publisher to You. In most cases, EBSCO does not know if a missing issue has been sent or if a subscription that initially failed to start has started, but Your EBSCO customer service representative is available to assist with claim follow-ups as necessary.
9.0. To assist in the transition to EBSCO as Your information agent from ordering publisher direct or from ordering through another vendor, a customer service representative will be assigned to Your account. EBSCO’s support services will work with You on a smooth and orderly transition. In addition to consolidating the orders, EBSCO will work to establish a common expiration date, if desired. EBSCO also provides training and consultation services at Your request.
10.0. EBSCO is committed to ensuring that You receive extraordinary service. EBSCO takes all complaints seriously and will respond swiftly in order to implement a satisfactory solution. You are encouraged to make Your EBSCO customer service representative aware of problems as soon as they occur so that swift action can be taken.
11.0. EBSCO can streamline the steps involved in consortium multisite purchasing arrangements by reducing the tasks involved in connecting Your membership to the most appropriate publisher offerings available.
11.1. EBSCO can build an evaluation process to help identify Your consortium needs and preferred terms; current membership subscription holdings; and applicable publisher offerings, based on membership subscription holdings.
11.2. EBSCO can follow the negotiation process to compare publishers’ offerings, evaluate their agreement components, and support pricing discussions and other contract terms between Your consortium and a publisher.
11.3. For consortium customers, EBSCO can facilitate the entire management process in a number of ways, including providing issue-customized invoicing to Your specifications; making consolidated, single payments to publishers; paying publishers’ invoices sent to the consortium, and then invoicing individual members; enabling and integrating e-journal access through EBSCOhost® and EBSCO SmartLinks™; offering troubleshooting and customer service; and helping with renewals.
12.0. Except for the rights expressly granted herein, these Terms and Conditions do not transfer any rights to You related to any EBSCO developed, licensed, or owned technology, and all rights, title, and interest in and to such technology will remain solely with EBSCO. The parties agree that they will not directly or indirectly reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or trade secrets from the other party. All intellectual property rights in the content ordered from publishers via EBSCO are reserved to the owner of such intellectual property, and You irrevocably acknowledge and agree that the supply of such content to You shall not transfer such rights.
12.1. Without EBSCO’s prior written consent, You will not use EBSCO’s name or any language, pictures, or symbols that could, in EBSCO’s sole judgment, imply EBSCO’s identity in any (a) written or oral advertising or presentation, or (b) brochure, newsletter, book, or other written material of whatever nature. You agree that any and all press releases and other public announcements related to these Terms and Conditions, and subsequent transactions between EBSCO and You, including the method and timing of such announcements, must be approved in advance by EBSCO in writing. EBSCO reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Your obligation regarding public announcements shall be a material breach of these Terms and Conditions.
12.2. EBSCO, other EBSCO product and service names, and all related logos and trade names are each trademarks of EBSCO Information Services or EBSCO Industries Inc. Without EBSCO’s prior written permission, You agree not to display or use in any manner EBSCO’s trademarks.
13.0. The parties hereby agree that the disclosure and use of certain technology, know-how, data and/or other information relating to each party's current and/or proposed products, including but not limited to each party’s research, products, services, compilations, techniques, development efforts, inventions, processes, designs, drawings, marketing or finances, and all other information that would be reasonably deemed confidential shall constitute confidential information (“Confidential Information”). Each party will (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees, and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees, and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under these Terms and Conditions, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees, and agents in violation of this section.
13.1. Confidential Information does not include information that (a) the recipient of the Confidential Information can demonstrate that it already knew through sources not bound to confidentiality; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was given to the recipient by another party who was not bound to confidentiality.
13.2. Each party may disclose the other party’s Confidential Information when required by law, but only after it, if legally permissible, (a) uses commercially reasonable efforts to notify the other party and (b) gives the other party the opportunity to challenge the disclosure.
14.0. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when acknowledged as received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email. A copy of any notice sent to EBSCO shall also be sent to the attention of the President of EBSCO Information Services, 5724 Highway 280 East, Birmingham, Alabama USA 35242.
14.1. Neither party may assign or transfer any part of these Terms and Conditions without the written consent of the other party, except to an affiliate, but only if (a) the assignee agrees in writing to be bound by these Terms and Conditions; and (b) the assigning party remains liable for obligations incurred under these Terms and Conditions prior to the assignment. Any other attempt to transfer or assign these Terms and Conditions is void.
14.2. Neither party will be liable for inadequate performance to the extent caused by force majeure, a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that is beyond the party’s reasonable control.
14.3. Failure to enforce any provision of these Terms and Conditions will not constitute a waiver. The waiver of any right or election of any remedy in one instance, by either party, shall not affect any rights or remedies in another instance. A waiver shall be effective only if made in writing and signed by an authorized representative of both parties.
14.4. Should any provision of these Terms and Conditions be deemed illegal or otherwise unenforceable, that provision shall be severed and the remainder of these Terms and Conditions shall remain in full force and effect.
14.5. These Terms and Conditions are governed by the laws of the State of Alabama, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. For any dispute arising out of or relating to these Terms and Conditions, the parties consent to personal jurisdiction in, and the exclusive venue of, the state and federal courts in the State of Alabama, USA.
15.0. YOU EXPRESSLY UNDERSTAND AND AGREE THAT EBSCO INFORMATION SERVICES AND ITS AFFILIATES, CO-BRANDERS, OR OTHER PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EBSCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (A) THE USE OR THE INABILITY TO USE THE INFORMATION OR SERVICES; (B) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF SERVICES; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH, OR FROM THE SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (F) ANY GOOD OR SERVICE OFFERED OR SOLD THROUGH THE SERVICE; OR (G) ANY OTHER MATTER RELATING TO THE INFORMATION OR SERVICES. FURTHERMORE, EBSCO SHALL NOT BE LIABLE TO YOU BY REASON OF ANY IMPLIED WARRANTY, CONDITION, OR OTHER TERM, OR ANY DUTY AT COMMON LAW OR BREACH OF STATUTORY DUTY, OR UNDER THE EXPRESS TERMS OF ANY AGREEMENT OR BY REASON OF ANY REPRESENTATION, WHICH YOU ACKNOWLEDGE YOU HAVE NOT RELIED ON, WHETHER CAUSED BY THE NEGLIGENCE OF EBSCO, ITS EMPLOYEES, OR AGENTS, OR OTHERWISE, WHICH ARISE OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY EBSCO TO YOU.
15.1. EBSCO’S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE SERVICE CHARGE PAYMENTS ACTUALLY MADE BY YOU TO EBSCO DURING THE PREVIOUS TWELVE (12) MONTHS. YOU ACKNOWLEDGE THAT EBSCO HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.