TERMS OF SERVICE
Last updated: May 29, 2017
For purposes of the following (the “Agreement”), “Stacks” is Stacks Inc.; the “Licensor” is EBSCO Information Services; the “Licensee” is the entity or institution that makes available services offered by Stacks; the “Sites” are the Internet websites offered or operated by Licensee from which Authorized Users can obtain access to the Services; and “Authorized User(s)” are employees, students, registered patrons, walk-in patrons, or other persons affiliated with Licensee or otherwise permitted to use Licensee’s facilities and authorized by Licensee to access Services. “Services” shall also mean Stacks and related products to which Licensee has purchased a subscription. Stacks disclaims any liability for the accuracy, completeness or functionality of any material contained herein, referred to, or linked to. Stacks assumes no responsibility for errors or omissions nor any liability for damages from use of the information contained herein. Persons engaging in the procedures included herein do so entirely at their own risk.
1.1. Licensee Rights. Stacks hereby grants to the Licensee a nontransferable and nonexclusive right to use the Services made available by Stacks according to the terms and conditions of this Agreement. The Services made available to Authorized Users are the subject of copyright protection, and the original copyright owner (Stacks or its “Licensors”) retains the ownership of the Services and all portions thereof. You may use the Services to create and publish sites (“Your Sites”). Stacks does not transfer any ownership, and the Licensee and Your Site(s) may not reproduce, distribute, display, modify, transfer or transmit, in any form, or by any means, any Service or any portion thereof without the prior written consent of Stacks, except as specifically authorized in this Agreement.
1.2. Authorized Users. The Licensee is authorized to provide login access through the Site(s) included mechanisms to its services, to any Authorized User. The Licensee may not post passwords to the Services on any publicly indexed websites. For the avoidance of doubt, if Licensee provides login access to individuals that do not require access for the intended library use of the platform at the inception of this Agreement, then Stacks may hold the Licensee in breach and suspend access to Services.
1.3. Follow the Law. Licensee and Authorized Users agree to abide by applicable copyright law as well as by any contractual restrictions, copyright restrictions, or other restrictions and specified in the Services. Licensee and Authorized Users may create printouts of materials retrieved through the Services via online printing, offline printing, facsimile or electronic mail. All reproduction and distribution of such printouts, and all downloading and electronic storage of materials retrieved through the Services shall be for internal or personal use. Notwithstanding the above restrictions, this paragraph shall not restrict the use of the materials under the doctrine of “fair use” as defined under copyright law. Publishers may impose their own conditions of use applicable only to their content. Such conditions of use shall be displayed on the computer screen displays associated with such content. The Licensee shall take all reasonable precautions to limit the usage of the Services to those specifically authorized by this Agreement.
1.4. Licensee agrees to comply with applicable copyright law, and agrees to indemnify Stacks against any actions by Licensee that are not consistent with copyright law.
1.5. Authorized Sites may be added or deleted from this Agreement as mutually agreed upon by Stacks and Licensee.
1.6. The computer software utilized via Stacks’ Service(s) is protected by copyright law and international treaties. Unauthorized reproduction or distribution of this software, or any portion of it, is not allowed. User shall not reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the software, or create derivative works from the software.
1.7. Licensee agrees not to include any third party advertising in the Services.
2. LIMITED WARRANTY AND LIMITATION OF LIABILITY
2.1. Stacks and its Licensors disclaim all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement, or fitness for a particular purpose. Neither Stacks nor its Licensors assume or authorize any other person to assume for Stacks or its Licensors any other liability in connection with the licensing of the Services under this Agreement and/or its use thereof by the Licensee and Sites or Authorized Users.
2.2. Limited Liability. The maximum liability of Stacks and its Licensors, if any, under this agreement, or arising out of any claim related to the products, for direct damages, whether in contract, tort or otherwise shall be limited to the total amount of fees received by Stacks from Licensee hereunder up to the time the cause of action giving rise to such liability occurred. In no event shall Stacks or its Licensors be liable to Licensee or any authorized user for any indirect, incidental, consequential, punitive or special damages related to the use of the services or to these Terms, even if advised of the possibility of such damages.
To the fullest extent permitted by law, in no event will Stacks be liable with respect to any claims arising out of or related to the Services or this Agreement for: (a) any indirect, special, incidental, exemplary, punitive or consequential damages; (b) any loss of profits, revenue, data, goodwill or other intangible losses; (c) any damages related to your access to, use of or inability to access or use the Services or any portion thereof, including without limitation interruption of use or cessation or modification of any aspect of the Services; (d) any damages related to loss or corruption of any content or data, including without limitation User Content including without limitation text, photos, images, audio, video, code and any other materials (“User Content").; (e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or (f) any third party services or third party sites accessed via the Services. These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not Stacks has been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed its essential purpose. Some places don't allow the types of limitations in this paragraph, so they may not apply to you.
2.3. Licensee is responsible for maintaining a valid license to the third party resources they have chosen to use within the platform (if applicable). Stacks disclaims any responsibility or liability for a Licensee accessing the third party resources without proper authorization.
2.4. Stacks is not responsible if the third party resources accessible via the Services fail to operate properly or if the third party resources accessible via the Services cause issues for the Licensee. While Stacks and EBSCO customer service & support will make best efforts to help troubleshoot problems, Licensee acknowledges that certain aspects of functionality may be dependent on third party resource providers who may need to be contacted directly for resolution.
To the fullest extent permitted by law, you agree to indemnify and hold harmless Stacks from and against all damages, losses and expenses of any kind (including without limitation reasonable legal fees and costs) arising out of or related to: (a) your breach of this Agreement; (b) your User Content and Your Sites; (c) any claims from your End Users; and (d) your violation of any law or regulation or the rights of any third party.
4. DISPUTE RESOLUTION
Before filing a claim against Stacks, you agree to try to work it out informally with us first. All formal disputes must be resolved through arbitration unless you opt out of arbitration. Claims can only be brought individually, and not as part of a class action.
5.1. In the event of a breach of any of its obligations under this Agreement, Licensee shall have the right to remedy the breach within thirty (30) days upon receipt of written notice from Stacks. Within the period of such notice, Licensee shall make every reasonable effort and document said effort to remedy such a breach and shall institute any reasonable procedures to prevent future occurrences of such breaches. If Licensee fails to remedy such a breach within the period of thirty (30) days, Stacks may (at its option) terminate this Agreement upon written notice to the Licensee.
5.2. If Stacks becomes aware of a material breach of Licensee’s obligations under this Agreement or a breach by Licensee or Authorized Users of the rights of Stacks or its Licensors or an infringement on the rights of Stacks or its Licensors, then Stacks will notify the Licensee immediately in writing and shall have the right to temporarily suspend the Licensee’s access to the Services. Licensee shall be given the opportunity to remedy the breach or infringement within thirty (30) days following receipt of written notice from Stacks. Once the breach or infringement has been remedied or the offending activity halted, Stacks shall reinstate access to the Services. If the Licensee does not satisfactorily remedy the offending activity within thirty (30) days, Stacks may terminate this Agreement upon written notice to the Licensee.
5.3. The provisions set forth in this Agreement shall survive the term of this Agreement and shall continue in force into perpetuity.
6. NOTICES OF CLAIMED COPYRIGHT INFRINGEMENT
6.1. Stacks complies with copyright law, and respond to complaints about copyright infringement in accordance with our Copyright Policy. Stacks respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported via the process described in our Copyright Policy, which is incorporated by reference into this Agreement. We reserve the right to delete or disable content alleged to be infringing, and to terminate Accounts of repeat infringers without any refunds.
6.2. Stacks has appointed an agent to receive notifications of claims of copyright infringement regarding materials available or accessible on, through, or in connection with our services. Any person authorized to act for a copyright owner may notify us of such claims by contacting the following agent. In contacting this agent, the contacting person must provide all relevant information.
Dennis Bridges, Stacks Inc.
7.1. User Content. Licensees of the Services may provide User Content, including without limitation text, photos, images, audio, video, code and any other materials. Your User Content stays yours. These Terms don't give us any rights to User Content, except for the limited rights that enable us to provide, improve, promote and protect the Services as described herein.
7.2. Your Responsibilities. Licensee is responsible for the content published on a Stacks site. Keep in mind that some of what you upload can be viewed publicly. Remember that we can’t give you legal advice.
7.3. Follow the Law. You represent that your use of the Services is not contrary to law, including without limitation applicable export controls, regulations and sanctions.
8. THIRD PARTY SERVICES
If you use another service on Stacks, or follow a link to another site, we are not responsible for it.
8.1. Third Party Services. The Services are integrated with various third party services, applications and sites including Java Script (collectively, “Third Party Services”) that may make available to you their content and products. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don't control Third Party Services, and we’re not liable for Third Party Services or for any transaction you may enter into with them. Your security when using Third Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We’re not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof (except where prohibited by law).
8.2. Third Party Sites. The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don’t control and aren’t liable for those sites.
9. OUR INTELLECTUAL PROPERTY
Stacks is protected by various intellectual property laws. This section summarizes what we own and how we share.
9.1. Ownership. The Services are protected by copyright, trademark and other foreign laws. These Terms don't grant you any right, title or interest in the Services, our trademarks, logos or other brand features or intellectual property, or others’ content in the Services. You agree not to change, translate or otherwise create derivative works of the Services.
9.2. Feedback. We welcome your feedback, ideas or suggestions (“Feedback”), but you agree that we may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated.
9.3. Demo Content Is for Private Use Only. We may provide a demo or trial site(s) featuring demo or trial content including without limitation text, photos, images, graphics, audio, video and other materials (“Demo Content”), to provide you with a better understanding of the Services. However, Demo Content is for private use only (unless we tell you otherwise). You agree that you will not distribute, publicly display, publicly perform or otherwise publish any Demo Content (or any portion thereof).
9.4. Open Source Software. Some of the software used in the Services may be offered under an open source license and there may be provisions in the open source license that override some of these Terms.
10. OUR RIGHTS
We maintain control over what happens on our Services to operate effectively and protect the security and integrity of Stacks.
10.1. We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by law): (a) we may change the Services and their functionality; (b) we may restrict access to or use of parts or all of the Services; (c) we may suspend or discontinue parts or all of the Services; (d) we may terminate, suspend or restrict your access to or use of parts or all of the Services; (e) we may terminate, suspend or restrict access to your Sites; and (f) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
10.2. Ownership Disputes. Sometimes, ownership of a site is disputed between one or more parties, such as a business and its employee, or a web designer and their client. We try not to get involved in these disputes. However, we reserve the right, at any time and in our sole discretion, and without notice to you, to determine rightful site ownership and to transfer a site to the rightful owner. If we can’t reasonably determine the rightful owner, we reserve the right to suspend a site until the disputing parties reach a resolution. We also may request documentation, such as a government-issued photo ID, a credit card invoice or a business license, to help determine the rightful owner.
10.3. HTTPS Encryption. We may offer HTTPS encryption for Your Sites. By registering a custom domain via the Services, or pointing a custom domain to the Services, you authorize us to create and maintain a certificate for the limited purpose of providing HTTPS for Your Sites.
12.1. Neither Stacks nor its licensors will be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstance beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authority, rain, fire, flood, accidents, earthquake(s), strikes or labor shortages, transportation facilities shortages or failures of equipment, or failures of the Internet.
12.2. This Agreement and the license granted herein may not be assigned by the Licensee to any third party without written consent of Stacks.
12.3. If any Terms of this Agreement are found by a court of competent jurisdiction or administrative agency to be invalid or unenforceable, the remaining Terms thereof shall remain in full force and effect so long as a valid Agreement is in effect.
12.4. If the Licensee and/or Sites use purchase orders in conjunction with this Agreement, then the Licensee and/or Sites agree that the following statement is hereby automatically made part of such purchase orders: "The terms and conditions set forth in the Stacks License Agreement are made part of this purchase order and are in lieu of all terms and conditions, express or implied, in this purchase order, including any renewals hereof."
12.5. This Agreement represents the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, written and/or oral. There are no representations, warranties, promises, covenants or undertakings, except as described herein.
13. ADDITIONAL TERMS
13.1. Entire Agreement. This Agreement constitutes the entire agreement between you and Stacks regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. This Agreement creates no third party beneficiary rights.
13.2. Controlling Law. This Agreement and the Services shall be governed in all respects by the laws of Alberta, Canada, without regard to its conflict of law provisions.
13.3. Waiver, Severability and Assignment. Our failure to enforce any provision of this Agreement is not a waiver of our right to do so later. If any provision of this Agreement is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under this Agreement, and any such attempt will be void. We may assign our rights under this Agreement to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
13.5. Modifications. We may modify this Agreement, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will never apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement. If you disagree with our changes, then you should stop using the Services.
13.6. Translation. This Agreement was originally written in English (US). We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control.