These Standard Terms and Conditions, together with the Order Form, (collectively, the “Partnership Agreement”), is a binding agreement between RefME Ltd. of registered office Unit 9 New North House, 202-208 New North Road, London, N1 7BJ (“RefME”) and the person or entity identified on the Order Form as the customer (“Customer”).
WHEREAS RefME offers a cloud based citation service;
AND WHEREAS Customer desires to use RefME’s cloud based citation service and RefME desires to grant to Customer the right to use such service in consideration of the obligations of Customer under this Partnership Agreement.
IT IS AGREED AS FOLLOWS:
1. Key Definitions
The following terms shall have the following meanings:
1.1. “Authorized Users” means (a) the current members of the staff of Customer (whether on a permanent, temporary, contract or visiting basis) and (b) individuals who are currently studying at Customer’s institution, in each case who have registered with RefME to access the Services.
1.2. “Documentation” means any instructions, user guide or similar documents or materials that RefME provides or makes available to Customer in any form and which relate to the Services, including those located at https://www.refme.com/educator-resources/ and https://www.refme.com/for-developers/.
1.3. “Intellectual Property” means (a) patents, (b) copyrights, moral rights, works of authorship (including copyrights in computer software), and rights in data and databases, (c) trademarks, service marks, Internet domain names, trade dress, and trade names, together with all goodwill associated therewith, (d) registrations, applications, renewals and extensions for any of the foregoing in (a)-(c), (d) trade secrets, and (e) rights of privacy and publicity.
1.4. “Order Form” means the order form negotiated between and executed by Customer and RefME for access to the RefME Materials granted under this Partnership Agreement.
2. License Grant and Ownership of Data
2.1 Subject to the terms of this Partnership Agreement, RefME hereby grants to Customer, during the Term, a worldwide, non-exclusive and non-transferable right to access and use and provide Authorized Users with access and use of (a) the RefME cloud based solution providing automated citations via online portal and mobile telephone application (the “Services”) and (b) the Documentation.
2.2. RefME reserves all rights in and to the Services and Documentation (the “RefME Materials”) not expressly granted to Customer pursuant to this Partnership Agreement. Customer acknowledges that as between the parties, RefME is and will be the exclusive owner of all right, title and interest in the RefME Materials , including all Intellectual Property rights therein and thereto. Customer hereby grants RefME, for its internal business purposes, a worldwide, non-exclusive and irrevocable license to all of the information, data, results and other content that is uploaded or otherwise provided by Customer and any resulting analytics derived by or through the Services.
3. Permitted Uses
3.1 The Customer may, subject to Sections 2 and 4:
(i) Allow Authorized Users to access the RefME Materials.
(ii) Distribute single copies of parts of the Documentation in print or electronic form to an Authorized User of another library for the purposes of research or private study.
(iii) Display, download or print Documentation for the purpose of internal marketing or testing, or for training Authorized Users.
3.2 Authorized Users may, subject to Sections 2 and 4:
(i) Search, view, retrieve and display the Documentation.
(ii) Electronically save parts of the Documentation solely for personal backup use.
(iii) Print off single copies of parts of the Documentation.
(iv) Distribute single copies of parts of the Documentation in print or electronic form to other Authorized Users and to colleagues elsewhere in the course of research, for their personal use.
4. Prohibited Uses
4.1 Customer and Authorized Users shall not nor attempt to, nor permit, procure, enable or request any other person to:
(i) Use the RefME Materials in violation of any law, regulation or rule.
(ii) Remove or alter the authors’ names or copyright notices or other means of identification or disclaimers as they appear in the Documentation.
(iii) Systematically make print or electronic copies of multiple extracts of the Documentation for any purpose other than backup copies as permitted in Section 3.2(ii).
(iv) Permit or authorize a user at another library or elsewhere, to retain an electronic copy of any part of the Documentation, other than as permitted in Section 3.2(iv).
(v) Post or distribute any part of the Documentation on any electronic network, including the Internet and the World Wide Web.
(vi) Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services or any part thereof.
(vii) Use the RefME Materials for purposes of competitive analysis of the Services, the development of a competing software product or service or any other purpose that is to RefME’s commercial disadvantage.
4.2 Customer and Authorized Users shall not nor attempt to, nor permit, procure, enable or request any other person to, without RefME’s explicit written consent, which RefME may withhold in its sole discretion:
(i) Use the whole or any part of the RefME Materials for any commercial use.
(ii) Systematically distribute the whole or part of the RefME Materials to anyone other than Authorized Users.
(iii) Use, publish, distribute or make available the RefME Materials, works based on the RefME Materials or works which combine it with or incorporate it into any other material, other than as permitted in this Partnership Agreement.
(iv) Alter, abridge, adapt, modify or otherwise create derivative works or improvements, whether or not copyrightable or patentable, of the RefME Materials, except to the extent necessary to make it perceptible on a computer screen to Authorized Users.
5. Limited Warranties and Disclaimer.
5.1 RefME represents and warrants to Customer that, to RefME’s knowledge, RefME has all rights, permissions and licenses necessary to provide the RefME Materials to Customer.
5.2 RefME reserves the right at any time to amend or withdraw from the RefME Materials any item or part of an item in its sole discretion, including any item or part of an item that RefME no longer retains the right to publish or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. RefME shall give written notice to Customer of such withdrawal to the extent it relates to RefME Materials prepared solely for Customer.
5.3 Except as set forth in this article 5, the RefME materials are provided on an “as is” basis without warranty of any kind either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. Without limitation to the foregoing, RefME provides no warranty or undertaking, and makes no representation of any kind that the RefME materials will meet the CUSTOMER’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
6. LIMITATION OF LIABILITY.
To the fullest extent permitted under applicable law:
6.1 RefME and its affiliates, and all of its and their respective licensors, members, directors, officers, agents, and service providers, shall not be liable to customer or any third party for any use of, interruption, delay or inability to use the RefME materials, lost revenues or profits, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, system incompatibility update or provide correct information, system incompatibility or provision of incorrect compatibility information or breaches in system security, or for any special, incidental, indirect or consequential damages of ay kind or any damages whatsoever resulting from loss of use, data or profits arising out of our in connection with the use by authorized users or any other persons of the RefME materials, whether arising out of or in connection with this agreement, breach of contract, tort (Including negligence), strict liability or otherwise, regardless of whether such damages were foreseeable and whether or not RefME was advised of the possibility of such damages.
6.2 In no event will RefME’s or its affiliates, or any of its and their respective licensors, members, directors, officers, agents, and service providers, collective aggregate liability under or in connection with this partnership agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise exceed $100,000.
7.1. RefME shall indemnify and defend Customer from and against any direct loss, damage, cost, liability or expense (including reasonable attorneys’ fees) (“Losses”) arising out of or relating to any third party claim against Customer claiming that the RefME Materials as provided by RefME to Customer infringe the Intellectual Property rights of that third party, except to the extent the claim arises out or relates to (a) any breach of this Partnership Agreement by Customer or Authorized Users, (b) Customer’s or Authorized User’s improvement, modification or enhancement of, or creation of any derivative work based on, any RefME Materials, or (c) any customizations created or services performed in accordance with specifications or requirements mandated by Customer or Authorized Users (the claims in (a)-(c), “Customer IP Claims”). Customer acknowledges that this Section 7.1 states RefME’s entire responsibility and liability and Customer’s sole and exclusive remedy for any actual or alleged infringement of third-party Intellectual Property rights in connection with this Partnership Agreement.
7.2. The Customer shall indemnify and defend RefME and its affiliates, and all of its and their respective licensors, members, directors, officers, agents and service providers, from and against any Losses arising out of or relating to any third party claim against RefME to the extent the claim arises out of or relates to (a) Customer’s or Authorized User’s access to or use of the RefME Materials, (b) Customer’s breach of this Partnership Agreement, or (c) Customer IP Claims. Notwithstanding the foregoing, nothing in this Partnership Agreement shall make Customer liable for breach of the terms of the Partnership Agreement by any Authorized User provided that Customer did not cause, knowingly assist or condone the continuation of such breach after becoming aware of an actual breach having occurred.
8.1. This Partnership Agreement shall remain in effect from the date of submission of the Order Form until terminated in accordance with this Section 7 (the “Term”).
8.2. Either party may terminate this Partnership Agreement by providing written notice to the other in the following circumstances:
(i) Either party commits a material or persistent breach of any term of this Partnership Agreement and such breach is (a) incapable of remedy or (b) remains unremedied thirty days after notification thereof in writing by the other party.
(ii) Either party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
8.3. On termination all rights and obligations of the parties automatically terminate except for those specified in Sections 2.3, 5, 6, 7, 8.5 and 9.
8.4. On termination of this Partnership Agreement due to breach of any term thereof by Customer, Customer shall immediately cease to distribute or make available all of the Documentation to Authorized Users.
8.5. The termination of this Partnership Agreement will not affect any Authorized User’s ability to continue to access the Services to the extent such Authorized User would be able to access the Services if they signed up independent of Customer.
9.1. This Partnership Agreement may not be assigned by either party to any other person or organization, nor may either party subcontract any of its obligations, without the prior written consent of the other party, which consent shall not unreasonably be withheld, except that RefME may assign this Partnership Agreement to (a) an affiliate or (b) an acquirer of all or a majority of RefME’s equity interests, assets, or business to which this Partnership Agreement relates (including by a merger, consolidation, or operation of law). Any assignment in breach of this provision is void. This Partnership Agreement binds and inures to the benefit of the Parties and their respective permitted assignees or successors.
9.2. All notices, requests, claims and other communications between the parties described in or otherwise regarding this Partnership Agreement must be in writing and be given or made (and will be effective on receipt) by delivery in person, by nationally recognized overnight courier service (with signature required and all fees prepaid), or by registered or certified mail (postage prepaid, return receipt requested) to a party at its address on the Order Form or at any other address of which that party has notified the other party in accordance with this Section.
9.3. Neither party shall be liable in any way for failure or delay in performing its obligations under this Partnership Agreement if the failure or delay is due to causes outside the reasonable control of the party in default.
9.4. The failure of any party to enforce any provision on any one occasion does not affect its right to enforce another provision or the same provision on another occasion. Except to the extent stated otherwise in this Partnership Agreement, each party’s rights and remedies under this Partnership Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity.
9.5. In the event that any provision of this Partnership Agreement is held to be invalid, illegal or unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not) and the remainder of the provisions continue in full force and effect.
9.6. This Partnership Agreement (including this Section), any dispute, claim or controversy between the Parties arising out of or relating to this Partnership Agreement, whether in contract, tort or otherwise (each, a “Disputed Matter”), and the parties’ rights, remedies and obligations under this Partnership Agreement, are to be construed in accordance with and governed by the laws of the State of Delaware applicable to agreements made and to be wholly performed in that state by persons residing or having their principal places of business therein, without giving effect to the State of Delaware’s conflict of laws rules to the extent those rules would require applying another jurisdiction’s laws. The parties exclude the application to this Partnership Agreement of the United Nations Convention on Contracts for the International Sale of Goods. Any Disputed Matter shall in the first instance be referred to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the law of the State of Delaware. The costs of the arbitrator shall be borne by the parties in such proportions as the arbitrator may determine to be fair and reasonable or, if no such determination is made, in equal proportions.
9.7. The descriptive headings in this Partnership Agreement are used solely for convenience and are not intended to affect its meaning or interpretation. The words “including,” “include,” and “includes” are not limiting and are to be read as if they were followed by the phrase “without limitation.” “Sole discretion” means, with respect to any determination to be made under this Partnership Agreement by a party, the sole and absolute discretion of that party, without regard to any standard of reasonableness or other standard by which the determination of that party might be challenged. Unless stated otherwise, all references to a date or time of day in this Partnership Agreement are references to that date or time of day in New York, New York.
9.8. Except to the extent stated otherwise in this Partnership Agreement, nothing in this Partnership Agreement confers any legal or equitable right, benefit or remedy upon any person other than the parties.
9.9. The parties acknowledge that the provisions of this Partnership Agreement are the language the parties chose to express their mutual intent and hereby waive any remedy and the applicability of any law that would require interpretation of any claimed ambiguity, omission or conflict in this Partnership Agreement against the party that drafted it.
9.10. This Partnership Agreement, together with the Order Form, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Customer and RefME with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of a conflict between an Order Form and the Standard Terms and Conditions, the Order Form prevails.
9.11. The parties may execute this Partnership Agreement (including the Order Form) (a) in multiple counterparts, each of which when executed by a party’s authorized representative is an original counterpart and all of which together constitute one agreement, and (b) by (i) delivering in accordance with Section 9.2 an original counterpart of this Partnership Agreement bearing the handwritten signature of an authorized representative of the party intending to be bound, or (ii) attaching a scanned image of that signed counterpart, to an email or other electronic communication sent to the other party’s authorized representative.
9.12. This Partnership Agreement may be amended or modified only by a written instrument that refers specifically to this Partnership Agreement and is executed in accordance with Section 9.11, but “written instrument” does not include the text of e-mails or similar electronic communications.