1 DEFINITIONS
1.1 In these Terms and Conditions the following capitalised terms shall have the following meanings:
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“Agreement“ |
means the agreement between Customer and IFIS formed by acceptance by IFIS of an order for FSTA Direct made by Customer and incorporating these Terms and Conditions; |
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“Authorised User“ |
means an individual employed by Customer or a student at any Customer institution; |
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“FSTA“ |
means IFIS’s bibliographic database (1969 to present) containing abstracts of and indexes to literature on scientific, technological and nutritional aspects of processing and manufacturing foods and beverages destined for human consumption (identified as “Food Science and Technology Abstracts” or “FSTA®”) and the FSTA Thesaurus; |
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“FSTA Direct“
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means the service currently known a FSTA Direct comprising FSTA, weekly FSTA updates[ and the integrated FSTA dictionary], and which is accessible to subscribers via the Website; |
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“IP Rights“ |
means without limitation all patents, rights in designs, trade marks, service marks, unregistered design rights and database rights (as defined under the Copyright and Rights in Databases Regulations 1997) (in each case whether or not registered, and including applications for registration and the right to make applications) and copyright, moral rights, technology, know how, confidential information, trade secrets, trade names and goodwill, domain names and any other industrial and proprietary rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world for their full term and any extension or renewal thereof, and any licences under or in respect of any such rights; and |
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“Website“ |
means the IFIS password protected website at http://www.fstadirect.com |
2 LICENCE OF RIGHTS
2.1 Subject to IFIS’s acceptance of an order placed by Customer and to the terms of the Agreement, IFIS hereby grants to Customer a non-exclusive, non-assignable, non-transferable, revocable licence (excluding the right to sublicense) to download and use information contained in FSTA Direct for the sole purpose of conducting searches of FSTA.
2.2 Customer and Authorised Users are authorised to download and use FSTA Direct for their own internal research purposes only, and may not for any purpose:
2.2.1 copy FSTA or any part of it or alter, adapt, merge or modify FSTA or any part of it or remove, change or obscure any product identification or notices or proprietary rights and restrictions on or in FSTA;
2.2.2 publish, reproduce (save that Customer may, with IFIS’s assistance prepare printed or electronic documentation on FSTA for internal purposes only), transmit, or otherwise make available or sell, rent or loan any of its contents, whether in hard copy, electronically transmitted or any other form except that, for the purpose of publishing scientific research, the bibliographics (not including abstract) may be incorporated into a bibliography where such bibliographics are incidental to the published work or article to which they relate; or
2.2.3 use data downloaded from FSTA Direct in connection with other information so as to create a consolidated file to be offered online or in any other media to third parties.
2.3 Customer shall take all reasonable steps to ensure that each Authorised User is made aware of the restrictions imposed in this Agreement on their use of FSTA and FSTA Direct.
2.4 All IP Rights in FSTA and FSTA Direct (including all the data and other contents thereof) and in all documentation furnished by IFIS to Customer and Authorised Users pursuant to this Agreement shall be owned and/or controlled by IFIS.
2.5 IFIS and Customer will attempt to solve problems concerning FSTA Direct via email, fax or telephone contact. IFIS does not warrant that Customer’s access to FSTA Direct will be uninterrupted.
3 ORDERING
3.1 Prices or other information displayed on any IFIS website or in any promotional material shall not constitute an offer by IFIS. By placing an order Customer makes an offer to IFIS to purchase FSTA Direct on these Terms and Conditions.
3.2 Upon receipt of payment of the Fees (defined below), IFIS shall provide Customer with a personalised user name and password to allow access to FSTA Direct. Customer will keep its password confidential (and procure that all Authorised Users do so) and shall notify IFIS within 24 hours of any unauthorised disclosure or use of their password or any other breach of security affecting FSTA or FSTA Direct. If Customer fails to so notify IFIS, Customer shall be fully responsible for all charges incurred through use of its password.
4 FEES
4.1 The Customer shall pay IFIS the initial fee of EURO €470 for the number of units the Customer has selected to purchase. (Abstracts will be charged at EURO €1.08 for the full record or €0.80 for the Bibliographic view. If the Bibliographic version is viewed first and then the full record, the cost will be €1.08 in total.
5 TERM, TERMINATION AND CREDIT ROLLOVER
5.1 The Agreement shall commence on the date on which IFIS first activates Customer’s personalised password (see Clause 3.3 above) and shall continue for the period of prepaid units covered by the Fees or, if earlier, until terminated under this Clause 5 (the “Term“). Subject to clause 5.2 below, all prepaid units must be used within the first year of the Term.
5.2 Any prepaid units which are not used within the first year of the Term may be credited for use in the second year of the Term provided that Customer also purchases 250 additional units for use in the second year (“Credit Rollover Procedure“). The Credit Rollover Procedure may be used in each year of the Term.
5.3 The Agreement will terminate automatically if Customer becomes bankrupt, goes into liquidation, suffers or makes any winding up petition, makes an arrangement with their creditors, has an administrator, administrative receiver or receiver appointed or suffers or files any similar action in consequence of debt or anything analogous to the foregoing occurs in any jurisdiction.
5.4 This Agreement may be terminated:
5.4.1 by IFIS upon 7 days’ written notice to Customer if Customer fails to access FSTA Direct for a period one year or more or fails to comply with any of the terms and conditions of this Agreement;
5.4.2 by Customer if IFIS makes changes to FSTA Direct (which it may do so in its sole discretion) which materially affect the scope or frequency of the service; or
5.4.3 by either Party upon 31 days written notice to the other Party (provided that if IFIS terminates under this Clause 5.4.3 IFIS shall refund to Customer any unused prepaid Fees).
5.5 Upon termination of this Agreement for whatever reason, Customer shall erase or destroy all machine readable files derived from FSTA Direct, save for up to 5,000 records which may be stored permanently in electronic form by each Authorised User for research purposes only (provided that Customer uses reasonable endeavours to inform Authorised Users of this restriction).
5.6 Termination of this Agreement shall not affect either Party’s accrued rights and obligations as at the date of termination and all provisions of this Agreement, the survival of which are necessary for the interpretation or enforcement of a Party’s right or obligations, shall survive termination and continue in full force and effect.
6 WARRANTIES AND INDEMNITY
6.1 IFIS warrants to Customer that it has the authority to grant the rights as set out in this Agreement.
6.2 Customer warrants that all credit card and other payment information supplied to IFIS shall be complete and correct and that all credit card charges shall be honoured by the credit card company.
6.3 Customer shall, without prejudice to any other right of action which IFIS may have, at all times keep IFIS fully and effectively indemnified against all and any liability (which liability shall include, without limitation, all losses, costs, claims, expenses, demands, actions, damages, legal and other professional fees and expenses on a full indemnity basis) which IFIS may suffer or incur as a result of, or by reason of, any breach or non-fulfilment of any of Customer’s obligations in respect of this Agreement.
7 LIABILITY
7.1 Subject to Clause 7.4 below, IFIS’ liability under or in connection with this Agreement shall not exceed an amount equal to the Fees paid by Customer to IFIS during the 12 months immediately prior to when the claim occurs or, if greater, £10,000.
7.2 Notwithstanding Clause 7.1 above, IFIS shall have no liability under or in connection with this Agreement for any of the following (howsoever caused and regardless of whether or not the same were within the contemplation of the Parties on the date hereof): (i) economic losses (including without limitation, loss of revenues, profits, contracts, business or anticipated savings); (ii) loss of goodwill or reputation; or (iii) special or indirect or consequential losses.
7.3 IFIS gives no warranty that the information contained in FSTA Direct is accurate or complete or fit for Customer’s purpose. Customer shall at all times exercise its own judgment in the use of FSTA Direct and any information obtain therefrom and shall be solely responsible for any opinions, recommendations, forecasts or other comments made or actions taken by it or by any other party based (in whole or in part) on FSTA Direct.
7.4 Nothing in this Agreement shall exclude IFIS’ liability for fraud (including fraudulent misrepresentation), or for death or personal injury arising from its negligence or that of its servants, agents, or employees.
8 MISCELLANEOUS
8.1 Each Party shall keep the terms of this Agreement confidential both during and after the Term.
8.2 The exercise of, or failure to exercise, any right under this Agreement shall not prejudice or constitute a waiver of any subsequent exercise of that right or any other rights under this Agreement or otherwise. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or agency between Customer and IFIS.
8.3 Any person or entity who is not a party to this Agreement is not entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 except where this Agreement expressly provides that such a person or entity is entitled to enforce any of its terms.
8.4 If any term or provision of this Agreement shall be held to be illegal or unenforceable in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form a part of this Agreement, but the validity and enforceability of the remainder of this Agreement shall not be affected.
8.5 This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof. In entering into this Agreement Customer has not relied on any representation, promise, warranty, covenant or undertaking not expressly set forth herein and IFIS shall be under no liability whatsoever nor shall Customer be entitled to any remedy for either any negligent or any innocent misrepresentation except to the extent (if any) that a court or any arbitrator may allow reliance on the same as being fair and reasonable.
8.6 This Agreement shall be governed by and construed in accordance with English law and each Party agrees to submit to the exclusive jurisdiction of the English Courts.
