Open Science Platform Products and Services Agreement
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OPEN SCIENCE PLATFORM PRODUCTS AND SERVICES AGREEMENT This open science platform products and services agreement ("Agreement") is entered into as of 15th of May 2020 by and between SURFmarket B.V., with its principal offices located at Moreelsepark 48, 3511 EP, Utrecht, The Netherlands, (“SURFmarket”), a limited liability organization, authorized to enter into this Agreement on behalf of the institutions identified in Schedule 2 (the "Institutions") (all, collectively, the “Customer”), and Elsevier B.V., Radarweg 29, 1043 NX, Amsterdam, The Netherlands ("Elsevier"). WHEREAS, SURFmarket provides certain intermediary services on behalf of the Institutions and wishes to enter into this Agreement on behalf of the Institutions. WHEREAS, both parties are committed to reach 100% Open Access during the term of this Agreement. Elsevier commits to deliver the Publishing Services in accordance with the terms and conditions as set forth in Schedule 4. Elsevier and the Institutions aspire to closely collaborate on services to support the research community to meet the Dutch ambition towards Open Science. WHEREAS, both parties have identified three types of services to focus their collaboration on as described in the MoU of December 2019: i. Reading Services ii. Publishing Services iii. Professional Services for Research Intelligence and Workflow WHEREAS, SURFmarket on behalf of the Institutions wishes to obtain rights to publish in Elsevier’s Gold Open Access journals in accordance with the Publishing Service terms and conditions set forth in Schedule 4 hereto. WHEREAS, both parties agree upon the Collaboration Principles as provided for in Schedule 5 (“Professional Services”). WHEREAS, parties have agreed to explore the opportunities to develop services in accordance with the terms and conditions set forth in Schedule 5 hereto (“Professional Services”). The parties hereto agree as follows: SECTION 1. PRODUCTS. SURFmarket shall act as an intermediary on behalf of the Institutions in respect of the conclusion of the individual agreements entered into between each Institution and Elsevier under the terms and conditions of the institutional agreement as set forth in Schedule 3 (“Institutional Agreement”). The intermediary services include arrangements of SURFmarket with Elsevier regarding rights of use, provision of open access, licence administration and remittance of payments or debiting of payments for Institutions. In all its actions vis-à-vis Institutions (including potential Institutions), SURFmarket shall at all times make clear that it is acting as an independent party representing the Institutions. SURFmarket shall not do or say anything that may create the impression that SURFmarket’s authority to act as intermediary extends any further than specified in this Agreement. To ensure that Elsevier grants rights of use and the Institution honours the rights of use that are granted, SURFmarket shall provide the Institution, digitally, with an Institutional Agreement to be signed by the Institution. SURFmarket shall endeavour that the signature of the Institution is set by a representative of the Institution who is authorized to sign. SURFmarket shall provide Elsevier evidence of such digital signature confirmation by the Institution. 1.1 Products. Elsevier hereby grants to the Institutions the non-exclusive, non-transferable right to access and use the products and services identified in Schedule 1 (“Products”) and provides the Products to its Authorized Users (as defined herein), subject to the terms and conditions of this Agreement. In the event of any conflict, ambiguity or contradiction between the product specific clauses in the Institutional Agreement and this Agreement, the terms and conditions of the Institutional Agreement shall take precedence. SURFmarket shall have complimentary access to the Products for the purpose of providing information about the Agreement and the schedules to the Institutions. 1.2 Authorized Users/Sites. Authorized Users are the full-time and part-time students, faculty, staff, researchers, retired employees, and independent contractors of the Institutions affiliated with the Institutions' locations listed on Schedule 2 (the "Sites") and individuals using computer terminals within the library facilities at the Sites permitted by the Institutions to access the Products for purposes of personal research, education or other non- corporate use (“Walk-in Users”). 1.3 Authorized Uses and Restrictions of Use The Institutions and their Authorized Users may only use the Products in accordance with the usage rights and restrictions as included in the Institutional Agreement. SURFmarket may not: . extend the number of Institutions without the prior written consent of Elsevier, which consent shall not be unreasonably withheld. Any addition of Institutions shall be subject to an appropriate Fee adjustment to be agreed between the parties by means of an amendment to this Agreement. SURFmarket shall, upon becoming aware thereof, immediately notify Elsevier of any deficiencies in the functioning of the Institutions and/or of any complaints made by Institutions. Authorized Users who are individuals who are independent contractors or are employed by independent contractors may use the Products only for the purposes of the contracted research work for the Institutions. 1.4 Intellectual Property Ownership. SURFmarket acknowledges that all right, title and interest in and to the Products remain with Elsevier and its suppliers, except as expressly set forth in this Agreement, and that the unauthorized redistribution or dissemination online of the Products could materially and irreparably harm Elsevier and its suppliers. SECTION 2. ELSEVIER PERFORMANCE OBLIGATIONS. 2.1 Access to Products. Elsevier will make the Products accessible to the Institutions and their Authorized Users from the internet address set forth on Schedule 1 or as may be otherwise set forth herein. 2.2 Quality of Service. Elsevier will use reasonable efforts to provide the Products with a quality of service consistent with industry standards, specifically, to provide continuous service with an average of 98% up-time per year, with the 2% down-time including scheduled maintenance and repairs performed at a time to minimize inconvenience to the Institutions and their Authorized Users, and to restore service as soon as possible in the event of an interruption or suspension of service. If, due to causes within its reasonable control, Elsevier is unable to provide the Institutions with access to the service for reasons attributable to Elsevier for a period exceeding three (3) consecutive days, then Elsevier shall refund to the Institutions the amount of the Fees calculated by dividing the number of days of downtime by 365 and multiplied by the amount of the Fees for the then current year. The remedy provided herein is in addition to and not exclusive of any other rights and remedies that the Institutions may have under this Agreement and at law or in equity. 2.3 Withdrawal of Content. Elsevier reserves the right to withdraw from the Products content that it no longer retains the right to provide or that it has reasonable grounds to believe is unlawful, harmful, false or infringing. Elsevier shall notify the Customer as much as possible in advance of any such withdrawal. 2.4 Usage Data Reports. Elsevier will make usage data reports on the usage activity of each Institution accessible online on a monthly basis to the librarians/administrators employed by such Institution and SURFmarket for internal use only. Such reports may be accessed by vendors or other third parties retained by the Institution only with the express written permission of Elsevier and for the purpose of usage analysis of the Institution. Elsevier shall make commercially reasonable efforts to provide such statistics in accordance with the standards of Project Counter (http://www.projectcounter.org). The administrators employed by SURFmarket may also extract aggregated and anonymous data concerning the usage activity of each Institution relating to the Products from the SUSHI API on SURFmarket website in compliance with the then currently valid SUSHI Protocol (“SUSHI Data”), store such SUSHI Data on its server and make portions of such information accessible to Institutions through the SURFmarket’s usage data service (the “SUSHI Service”), provided that delegated authentication software is used. SURFmarket may create aggregated reports or studies from the SUSHI Data at SURFmarket and Institutional level and make such reports freely available via the Service to the Institutions for general information and benchmarking purposes. The Institutions and Authorized Users may not reproduce or distribute any usage statistics, usage reports and studies based on such information to third parties, including vendors or aggregators retained by the Institutions, without the express written permission of Elsevier. SURFmarket will maintain complete and accurate records pertaining to the SUSHI Service during the Term of this Agreement and for a period of three (3) years and will on an annual basis provide Elsevier with an electronic or physical copy of all reports or studies it produced from the SUSHI Data enabling Elsevier to reproduce these results. 2.5 Journal Transfer. Elsevier will make commercially reasonable efforts to comply with the TRANSFER Code of Practice, Version 4.0, published by the UK Serials Group (UKSG). 2.6 Accessibility. Elsevier will make commercially reasonable efforts to comply with the