NOTICE: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE LEXISNEXIS PUBLICATION SERVICES IF YOU ARE AN AUTHORIZED USER IN AN ORGANIZATION THAT HAS ACCEPTED THESE TERMS IN WRITING. OTHERWISE, YOUR USE OF THE PUBLICATION SERVICES IS SUBJECT TO THE TERMS AND CONDITIONS EXECUTED BETWEEN YOUR ORGANIZATION AND LEXISNEXIS.
PUBLICATION SERVICES AGREEMENT – LEXISNEXIS CANADA
July 14, 2020
The terms and conditions listed below govern access to, and use of: Publications and the Digital Library, if ordered (the “Publication Services”) and the materials and content available therein (“Materials”), as provided by LexisNexis Canada Inc. and its affiliated companies (collectively “LN”). The terms “you” and “your” in uppercase or lowercase mean the entity (e.g., company, corporation, partnership, sole proprietor, etc.) or government agency entering into these terms and conditions with LN. These terms and conditions, together with the Order Form, and any digital rights management (“DRM”) included in the Electronic Publications, and terms posted within the Digital Library, constitute the entire agreement between you and LN in relation to the provision of the Publication Services and the Materials (collectively the “Agreement”).
(a) “Application Services” describes the digital content lending platform developed, managed and hosted by LN’s licensor, OverDrive, Inc.
(b) “Authorized Users” means an Eligible Person (defined in Subsection 2.1(a) below) whom you have identified to LN for purposes of providing access to the Digital Library and Electronic Publications (both defined below).
(c) “Digital Library” is the Application Services together with the Digital Library Publications.
(d) “Digital Library Publications” are the Electronic Publications that are provided by LN through the Application Services.
(e) “Electronic Publications” include CD-ROM, DVD-ROM, flash drive, PDF, eBook, video, audio, or other publications distributed electronically, and other services distributing Publications electronically other than through the Application Services.
(f) “Fee Earner(s)” means any full or part time lawyer or paralegal, who generates fee-based income for Subscriber. Law clerks, articling students, and executives who are not practicing lawyers are not considered Fee Earners.
(g) “Non-Digital Library Publications” include print publications and Electronic Publications not distributed on the Application Services.
(h) “Publications” include Digital Library Publications and Electronic Publications.
(i) “Resellers” include bookstores, campus bookstores, law school bookstores, distributors, international resellers, online bookstores and any entity that intends to resell Publications or other formats. Sections 1 and 2 below only apply to the Digital Library and Electronic Publications.
(j) “Updates” are any supplementation, release, replacement volume, new edition or updates to the Publication.1. GRANT OF LICENSE; RESTRICTIONS ON USE
1.1 You are granted, during the term of this Agreement, a nonexclusive, non-transferable, limited license to access and use the Digital Library, Electronic Publications and Materials from time to time made available by LN to you only for your internal purposes of: (a) research or study; and (b) providing professional services to your clients. This license is a license for your Authorized Users to use the Digital Library, Electronic Publications and the Materials only in the manner set out in this Agreement.
1.2 Using the commands of the Digital Library and Electronic Publications, you and your Authorized Users may:
(a) search, view and electronically display Materials retrieved from the Digital Library and Electronic Publications for each such Authorized User’s individual use, which individual use excludes the display of Materials through any form of network communication;
(b) email, download or make printouts of Materials (collectively, “Authorized Printouts”); and
1.3 In addition to the rights to Materials listed in Subsection 1.2 above, and to the extent permitted by applicable copyright law, you and your Authorized Users may:
(a) make a single printout of Materials using the printing commands of your web browser;
(b) make and distribute copies of Authorized Printouts;
(c) copy, revise, customize and use the forms, templates, checklists and precedents that form part of the Materials (“Forms”);
(d) excerpt or quote insubstantial portions of Material in documents prepared in the ordinary course of your business; and
(e) as it relates to Electronic Publications, (i) unless otherwise restricted by the embedded digital rights management (“DRM”), occasionally transfer the Electronic Publication from one electronic display device to another; and (ii) not remove, disable, or defeat any functionality in the Electronic Publication designed to limit or control access to or use of the Electronic Publication.
1.4 You and your Authorized Users may not:
(a) create your own independently searchable database of Materials;
(b) store, distribute or transmit any content through the Digital Library and Electronic Publications that: (i) is defamatory, libelous, pornographic or obscene (unless such content is reasonably related to professional responsibilities); or (ii) otherwise breaches any law, statute, regulation, standard, or code of practice of any relevant authority;
(c) attempt to disassemble, reverse engineer, reverse compile or otherwise reduce to human-perceivable form any of the Digital Library or Electronic Publications;
(d) use the Digital Library, Electronic Publications or Materials in any fashion that infringes the copyright or proprietary interests therein, including, but not limited to, exploiting the goodwill of LN, its trademarks, service marks, or logos; use the Digital Library, Electronic Publications or Materials in any fashion that infringes the copyright or proprietary interests therein, including, but not limited to, exploiting the goodwill of LN, its trademarks, service marks, or logos;
(e) remove or obscure the copyright notices or other notices contained in Materials;
(f) access or use the Digital Library or Electronic Publications via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Digital Library and Electronic Publications. Use of the Digital Library and Electronic Publications is permitted only via manually conducted, discrete, individual search and retrieval activities; or
(g) offer any part of the Publication Services or Materials for commercial resale or commercial redistribution in any medium or use the Digital Library, Electronic Publications or Materials to compete with the business of LN.
1.5 All right, title, and interest (including all copyrights and other intellectual property rights) in the Digital Library, Electronic Publications and Materials, regardless of the form of medium, belong to LN or its third-party suppliers. You acquire no ownership of copyright or other intellectual property rights or proprietary interest in the Digital Library, Electronic Publications, or copies thereof, except the limited rights granted herein.
1.6 The following terms also apply to the Digital Library:
(a) Through the functionality of the Digital Library, you will have the right to provide access to eBook(s) on the Digital Library solely to Authorized Users. In no case may Authorized Users’ access extend beyond the Term; and
(b) You will have the right to distribute the number of eBook(s) on the Digital Library to the number of Authorized Users indicated in or with the Agreement.
1.7 You will respect and deploy the DRM settings on the Digital Library and Electronic Publications as designated by LN that may restrict burning, copying, sharing or printing of the Digital Library and Electronic Publications. In the event LN learns of attempts to circumvent such DRM protections either by you or your Authorized Users, LN shall in its sole discretion, be permitted to temporarily suspend and/or permanently terminate Authorized User's and/or your access to the Digital Library and Electronic Publications.
2. ACCESS TO SERVICES
2.1 With respect to access to the Digital Library and Electronic Publications, you agree that:
(a) only your employees, temporary employees, partners, contractors dedicated to performing work exclusively for you, walk-in library patrons, and (in case of academic institutions) faculty and currently enrolled students, (to the extent those categories of persons are appropriate to your situation) that are also Canada-based may access and use the Digital Library and Electronic Publications and Materials (“Eligible Persons”). Without limitation, external professional service providers, such as lawyers, accountants, outsourcers and public relations firms, are specifically excluded from being Eligible Persons;
(b) Login credentials may only be used by the Authorized Users to whom access has been granted to use the Digital Library and Electronic Publications and such login credentials may not be shared with or used by any other person; you are responsible for managing your roster of Authorized Users and will promptly notify LN to deactivate an Authorized User’s access if any individual no longer meets the definition of Authorized User or you otherwise wish to terminate the Authorized User’s access to the Digital Library and Electronic Publications; and
(c) you are responsible for managing your roster of Authorized Users and will promptly notify LN to deactivate an Authorized User’s access if any individual no longer meets the definition of Authorized User or you otherwise wish to terminate the Authorized User’s access to the Digital Library and Electronic Publications; and
(d) You are responsible for all use of the Digital Library and Electronic Publications accessed by your Authorized Users (the foregoing will not apply to walk-in library patrons if you are a library), including associated charges, whether by Authorized Users or others. You will use reasonable commercial efforts to prevent unauthorized use of the Digital Library and will promptly notify LN, in writing, if you suspect any unauthorized use or misuse.
2.2 You may be restricted from accessing certain Materials otherwise available in the Digital Library and Electronic Publications based upon: (a) Materials you subscribe to; (b) Materials your Authorized Users are qualified to access; and (c) the specific program you subscribe to within the Digital Library.
2.3 Materials and features of the Digital Library and Electronic Publications may be added to, withdrawn from, or otherwise changed by LN without notice. In the event any such change results in the removal of a significant portion of the Digital Library eBook titles from the Digital Library, LN and you will negotiate, in good faith, to make an appropriate adjustment to the amounts payable under the Digital Library order. If the parties are unable to agree upon an appropriate adjustment, then you may terminate this Agreement upon written notice to LN. Not all eBooks or other Electronic Publications are available in all eBook or other electronic formats.
2.4 For access to the Digital Library, you will select from your organization a Digital Library Administrator to provide first level support to Authorized Users. LN Customer Support will provide second level support to your Digital Library Administrator(s) or IT Department and is available at: 1-800-387-0899, or DigitalLibraryService@lexisnexis.ca. Responses to your requests will be made within a commercially reasonable time period.
2.5 For the Digital Library, any supported internet browser may be used. However, full functionality may not be available if the most current version of a mainstream internet browser is not used.
2.6 You agree that access to Digital Library Publications and other Electronic Publications (including those Electronic Publications purchased from OverDrive, Inc.) through the Application Services will be terminated upon expiration or termination of this Agreement.
2.7 You are neither identified on, nor shall you provide access to the Digital Library Publications, Subscriber Documents, and other Electronic Publications to any individuals or entities identified on, (1) OFAC’s list of Specially Designated Nationals (“SDN List”), (2) the UK’s HM Treasury’s Consolidated List of Sanctions Targets, (3) the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions, (4) any other applicable sanctions lists, or (5) any person 50 percent or more owned, directly or indirectly, individually or in the aggregate by a person(s) identified in (1) through (4) above.
3. LIMITED WARRANTY
3.1 LN represents and warrants that LN has the right and authority to make the Publication Services and Materials available pursuant to the terms and conditions of this Agreement.
3.2 EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 3.1, THE PUBLICATION SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND LN AND EACH THIRD-PARTY SUPPLIER OF MATERIALS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHNATABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
4.1 A Covered Party (as defined below) shall not 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 Publication Services or any Materials available or not included therein; (b) the unavailability or interruption to the supply of the Publication Services or any features thereof or any Materials; (c) you or your Authorized User’s use or misuse of the Publication Services or Materials (regardless of whether you received any assistance from a Covered Party in using or misusing the Publication Services); (d) the loss or corruption of any data or equipment in connection with the Publication Services; (e) the content, accuracy, or completeness of Materials; (f) any delay or failure in performance beyond the reasonable control of a Covered Party; or (g) any content retrieved from the Internet even if retrieved or linked to from within the Publication Services, all regardless of whether you received assistance in the use of the Publication Services from a Covered Party.
4.2 “Covered Party” means: (a) LN, and any officer, director, employee, subcontractor, agent, successor, or assign of LN; and (b) each third-party supplier of Materials, third party alliance entities, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or any of their affiliates.
4.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE PUBLICATION SERVICES OR MATERIALS OR THIS PUBLICATION SERVICES AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE PUBLICATION SERVICES IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION. WITH RESPECT TO A PUBLICATION, LN WARRANTS IT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR 30 DAYS. YOUR EXCLUSIVE REMEDY AND THE SOLE OBLIGATION OF LN FOR A DEFECTIVE PUBLICATION SHALL BE THAT LN SHALL PROVIDE A REPLACEMENT COPY OF A DEFECTIVE PUBLICATION OR REPAIR OR REPLACE THE SAME.
4.4 TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER YOU NOR THE COVERED PARTIES SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, OR DATA, OR OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, LEGAL FEES, IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE PUBLICATION SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A COVERED PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS’) INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO LN OR ITS THIRD-PARTY SUPPLIERS.
4.5 Notwithstanding anything to the contrary herein, if there is a breach of warranty in Subsection 3.1, then LN, at its option and expense, will either defend you or indemnify and hold you harmless against proceedings or damages based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to the use of the Publication Services or Materials, provided: (a) the third party claim was not caused by your improper use of the Publication Services or Materials; (b) you give LN prompt notice of such third party claim; (c) you give LN the sole right to control and direct the investigation, defense and settlement of such claim; and (d) you, at the expense of LN, reasonably cooperate with LN in connection with the foregoing.
4.6 If the Publication Services or the operation thereof become, or in the opinion of LN are likely to become, the subject of a claim of infringement, LN may, at its option and expense: (a) procure for you the right to continue using the Publication Services; (b) replace or modify the Publication Services so that they become non-infringing; or (c) terminate this Agreement on notice to you and grant you a pro-rata refund or credit (if either is applicable) for any fees or fixed charges you may have pre-paid.
4.7 The provisions of Subsections 4.5 and 4.6 shall constitute your sole and exclusive remedy for the respective matters specified therein.
5. TERMS APPLICABLE TO SALE OF GOODS
The LexisNexis Canada Standard Terms for the Sale of Goods are applicable to non-Digital Library Publication Services and subscriptions and are found here: https://www.lexisnexis.ca/en-ca/terms/sale-of-goods-terms.page
6.1 Change to Number of Authorized Users. In the event of a change in your organizational structure (i.e., mergers, acquisitions and divestitures), or there is organic growth within the organization, resulting in a significant change in the number of Authorized Users of the Publication Services and Materials, LN, in good faith, reserves the right to adjust the amounts payable under this Amendment to reflect the change in your use of the selected services.
6.2 License Terms. Effective upon notice to you, LN may add, modify or otherwise change any rights to, or restrictions on, the use of the Publication Service and Materials as the same are currently set forth in this Agreement (the “License Terms”). If LN exercises these rights, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Authorized Users but will apply to all similarly situated LN customers using the Publication Services. If any changes made to the License Terms are unacceptable to you, you may terminate the Agreement upon 30 days’ prior written notice to LN of the change that is unacceptable to you. For your termination to be effective under this Subsection 6.2, LN must receive your notice of termination within 90 days of the date of the change. Continued use of the Publication Services following the effective date of any change constitutes acceptance of the change but does not affect your other termination rights.
6.3 Confidential Information. This Agreement and including any attachments such as an Order Form contain confidential information, including pricing information, of LN (the “Confidential Information”). You understand that disclosure of the Confidential Information may cause competitive harm to LN. You will receive and maintain the Confidential Information in trust and confidence and to take reasonable precautions against its disclosure to any third person.
6.4 Notices. Except as otherwise provided herein, all notices and other communications will be in writing or displayed electronically in the Publication Services by the provider thereof. Notices to you will be deemed as properly given on the date mailed, if mailed; on the date first made available, if displayed in the Publication Services; or on the date received, if delivered in any other manner. Notices to LN should be sent to your account representative with a copy sent to LexisNexis, Attention: Chief Legal Officer, RE: Publication Services, 9443 Springboro Pike, Miamisburg, OH 45342.
6.5 Third Party Beneficiaries. Each third-party supplier of Materials has the right to assert and enforce these provisions directly on its own behalf as a third-party beneficiary. OverDrive is a third-party beneficiary to this Agreement for the Application Services only. The failure of LN or any such third-party beneficiary to enforce any provision hereof will not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. Subject to Subsection 6.6, this Agreement does not confer any rights on any person or party other than the parties to this Agreement.
6.6 Assignments. You may not assign or sublicense this Agreement or your rights or obligations hereunder, directly or indirectly, without the prior written consent of LN, which consent shall not be unreasonably conditioned, delayed or withheld. LN may assign this Agreement to any successor to all or substantially all of the business or assets of LN that relate to the subject matter of this Agreement whether by asset or stock acquisitions, merger, consolidation or otherwise.
6.7 Successors and Permitted Assigns. Subject to Subsection 6.6, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
6.8 Force Majeure. Non-performance of either party will be excused to the extent that performance is rendered impossible where failure to perform is a result of actions omissions or circumstances beyond the reasonable control of the non-performing party, such as fire, weather, civil disturbance, act of military or court or governmental authority, strike (provided such strike is not caused by that party’s employees), change in law or other governmental regulations or act of God.
6.9 Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that you may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure by LN to object to such terms, provisions or conditions.
6.10 Governing Law. This Agreement and the Additional Terms shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, regardless of the law that might otherwise apply under applicable principles of conflicts of law.
6.11 Limitation of Action. You may not bring a claim of action, regardless of form, arising out of or related to amounts billed or payments made under an Order Form more than 12 months after LN first invoiced those amounts to you.
6.12 Order of Precedence. If there is a conflict between the terms and conditions of this Agreement, an Order Form, Additional Terms and any other document incorporated herein, the conflicting terms will be interpreted as narrowly as possible in the area of conflict and the conflict will be resolved by giving precedence in the following order: (a) the terms of the Order Form; (b) the terms and conditions of this Publication Services Agreement; and (c) the terms and conditions of any other document incorporated by reference herein.
6.14 Headings. The headings in the Agreement are for convenience only, and in no way affect the terms and conditions herein.
6.15 Amendments. Except in accordance with Subsection 6.2, this Agreement may not be amended, except in writing signed by duly authorized representatives of both parties.
6.16 Waiver. The waiver by either party of breach or default under this Agreement does not constitute the waiver of any subsequent breach or default. If anything in this Agreement is unenforceable, illegal or void then it is severed, and the rest of this Agreement remains in force and will be enforced to the maximum extent permissible by applicable law to affect the intent of the parties.
6.17 Trademarks. You grant to LN the limited right to use and display any trademarks, logos or service marks (collectively, “Subscriber Trademarks”) provided by you to LN for the express purpose of co-branding your customized adaptation of the Digital Library. LN shall not use the Subscriber Trademarks for any other purpose. You represent and warrant you own the Subscriber Trademarks or haves all necessary rights to grant this license to LN.
6.18 Collection Costs. In the event you fail to pay any amount when due, LN reserves the right to terminate the Publication Service(s) and retain all sums paid by you. In addition, you are responsible for all collection costs incurred by LN including, but not limited to, collection agency fees, reasonable legal fees and court costs.
6.19 Entire Agreement. This Publication Services Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations on that subject matter.