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PaperStats and Librarian Portal Data Confidentiality and Licensing Terms
These are the Pubget, Inc. PaperStats and Librarian Portal Terms and Conditions for the Supply of the Pubget PaperStats and Librarian Portal Service ("the Service"). These terms apply to you as a user of the Service ("client"). It is intended to ensure that you know your rights and obligations when using the Service. These terms do not apply if there is a separately negotiated contract in place that is signed by both parties.
Please read these terms and conditions carefully. It is a condition of your use of the Service that you comply with these terms and conditions.
Please look out for any amendments to these Terms and Conditions that Pubget ("we") might make in the future. From time to time we will make amendments to them by giving you notice of the change and you will then be obliged to comply with these terms and conditions as amended or cease using the Service.
This Agreement commences on the date when you first use Pubget's PaperStats and/OR Library Holdings Tool and continues until either party terminates by 30 days notice in writing to the other party. On termination or expiry of this Agreement for any reason, we may delete all of the data from any storage media.
You are given the opportunity to backup and take local copies of the data at any time.
1. DEFINITIONS. Certain capitalized terms shall have the meanings set forth below in this Section 1.
1.1 “Authorized Users” means employees, agents, consultants and subcontractors with a direct relationship with Customer. Customer shall be responsible for ensuring the compliance with the terms and conditions of this Agreement by all Authorized Users, and, notwithstanding anything herein to the contrary, Customer shall defend and indemnify Pubget for any damages which it suffers as the result of a breach of this Agreement by any such Authorized User.
1.2 “Customer” means the user issued a login to access the Service.
1.3 “Products” mean PaperStats, the hosted COUNTER-statistics aggregation and price analytics tool or the Librarian Portal, the hosted Holdings aggregation tool.
1.4 “Confidential Information” means (a) the internal business, serials usage data, pricing data, or other financial and marketing information of either party, (b) any software code and its technical documentation made accessible to Customer hereunder; (c) the contractual terms (including, without limitation, the pricing and payment terms) set forth in this Agreement, (d) any other material or information received from the other party and which is designated as “Confidential” or “Proprietary.”
1.4 “Term” means one year from date of first use.
2. PRODUCTS
2.1 PaperStats or Librarian Portal. Subject to the terms and conditions of this Agreement, Customer is granted a limited, worldwide, non-exclusive, non-transferable license to allow Authorized Users to use PaperStats or Librarian Portal solely for its internal business purposes but not for any timesharing, rental, or service bureau basis. The Term of the license shall be one year. Customer may not disassemble, reverse engineer, decrypt, decipher, decompile, create derivative works from, or translate PaperStats, or any portion thereof, or recreate or attempt to recreate PaperStats or Librarian Portal, in whole or in part.
3 WARRANTIES
3.1 Representations and Warranties. Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.
3.2 No Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT, ALL HARDWARE, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY PUBGET ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND PUBGET DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY.
4. CONFIDENTIAL INFORMATION.
4.1 Confidential Information. Each party acknowledges and accepts the responsibility to maintain all Confidential Information of the other party in confidence and to prevent its unauthorized use or disclosure taking those measures the receiving party uses to protect its own similar confidential information and in any event, using no less than a reasonable degree of care. Without limiting the foregoing, each party agrees that it shall not publish, disclose or otherwise provide to any person (except employees and contractors of such party with a legitimate need to know and who have entered into a written agreement with the receiving party containing confidentiality provisions covering the Confidential Information that are at least as restrictive as those set forth in this Agreement), or use for any purpose other than those purposes contemplated by this Agreement, any Confidential Information it receives hereunder; provided, however that neither party shall have an obligation to protect Confidential Information received from the other when such information: (1) was in the receiving party's possession at the time it was received from the disclosing party; (2) is or becomes a matter of public knowledge through no wrongdoing of the receiving party; (3) is rightfully provided to the receiving party by a third party without restrictions of confidentiality; (4) is independently developed by the receiving party without breach of this Agreement; or (5) is required to be disclosed by the first party by operation of law in which event the receiving party shall provide the disclosing party with prompt written notice of such requirement and shall cooperate with the disclosing party in taking such steps as may be reasonably indicated to maintain the confidentiality of the information subject to disclosure. Each party acknowledges that violations of the terms hereof may cause the other immediate and irreparable damage for which monetary damages may be inadequate for which the other party is entitled to seek injunctive relief, without the requirement of posting a bond.
4.2 Anonymous data Customer acknowledges that its usage data may be combined anonymously with data from other customers in order to produce industry-wide statistic reports.
5. LIMITATION OF LIABILITY
5.1 LIMITATIONS. WITH THE EXCEPTION OF EITHER PARTY’S BREACH OF SECTION 4 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EACH PARTY FURTHER AGREES THAT THE OTHER PARTY'S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR RELATING TO ANY SERVICE OR PRODUCT PROVIDED HEREUNDER SHALL, WITH THE EXCEPTION OF EITHER PARTY’S BREACH OF SECTION 4 (CONFIDENTIAL INFORMATION), BE LIMITED SOLELY TO THE FIRST PARTY'S DIRECT DAMAGES AND IN NO EVENT SHALL EXCEED $10,000.
6. TERM AND TERMINATION
6.1 Agreement. This Agreement shall become effective upon the date it is used by the customer and shall have a term of one (1) year from the Effective Date. The agreement will automatically renew unless either party announces its intention to cancel renewal prior to thirty (30) days before the end of Term.
6.2 Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement.
6.3 Termination Upon Bankruptcy, Insolvency, Etc. Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws.
6.4 Assignment. Neither party may assign this Agreement or any right or obligation hereunder, directly, indirectly, by operation of law or otherwise, without the prior written consent of the other party (which shall not be unreasonably withheld), except to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets.
6.5 Indemnification. Pubget shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the Customer and any parent, subsidiary or sibling entity of Customer and their directors, officers, employees, agents, successors and assigns (“Indemnified Parties”) from and against any and all suits, actions, legal or administrative proceedings, claims, liens, demands, damages, liabilities, losses, costs, fees, penalties, fines and expenses (including without limitation attorneys’ fees and expenses, and costs of investigation, litigation, settlement, and judgment) (“Claims”) based upon an alleged or actual violation or infringement of any patent, copyright, trademark, service mark, trade secret or other legally protected proprietary right relating to the use, including without limitation sale, transfer or other disposition, of PaperStats (“Infringement Claim”).
7. OWNERSHIP
7.1 Intellectual Property. Customer acknowledges that Pubget and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to solutions developed under this Agreement (including all components thereof), and Pubget expressly reserves all rights not expressly granted to Customer in this Agreement. Customer shall not engage in any act or omission that would impair Pubget’s and/or its licensors’ Intellectual Property Rights.
8. MISCELLANEOUS
8.1 Applicable Law. This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the Commonwealth of Massachusetts. Customer agrees that any and all causes of action between the Parties arising from or in relation to this agreement shall be brought exclusively in the State and Federal courts located within the Commonwealth of Massachusetts.
8.2 Force Majeure. Either party shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of either party. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
8.3 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed, if to Customer, as disclosed in the admin contact in the login email's domain or other address as specified to Pubget, or if to Pubget, as follows:
Pubget, Inc.
300 Summer St
Boston, MA 02210
Attention: Ryan Jones
With a copy to:
Outside GC LLC
176 Federal Street, 5th Floor,
Boston, MA 02110
Attention: Lloyd Levenson
8.4 Severability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.