THESE TERMS AND CONDITIONS SET OUT THE TERMS THAT WILL APPLY WHERE AN INSTITUTION SUBSCRIBES FOR A SUPPORTER SCHEME THROUGH THE OPEN BOOK COLLECTIVE’S ONLINE ORDERING PROCESS.
THE INSTITUTION’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIABILITY)
1. The Providers publish academic books and other learned publications on an open access basis and/or provide infrastructure to support the publication and dissemination of open access books. OBC has developed an online platform through which the Providers are able to seek financial support for their publishing and/or infrastructural activities.
2. Each Provider has created an individual Supporter Scheme to support the Provider’s activities within the open access monograph publishing ecosystem. The Supporter Scheme reflects the Providers’ aims and ethos. By subscribing to this scheme, institutions will be supporting those aims and ethos.
3. OBC includes a subscription service; the ‘OBC Supporter Service’, through which institutions can subscribe to Supporter Schemes in order to support the work of their chosen Providers. This can be done via the OBC platform or via direct correspondence.
4. Each Provider has appointed OBC to collect the Supporter Contribution on its behalf.
5. The terms of this Agreement and each Provider’s supporter offer were negotiated and agreed between each Provider and OBC.
1.1 In these terms and conditions, the following terms shall have the following meanings:
“Agreement” means the agreement between the Institution, OBC and each Provider under which the Institution subscribes to that Provider’s Supporter Scheme.
“OBC” means Open Access Book Collective (operating as Open Book Collective) (Company Number 14118614), a company limited by guarantee incorporated in England and Wales whose registered office is at One Bartholomew Close, London, United Kingdom, EC1A 7BL ("OBC").
“OBC Supporter Service” means the subscription service developed by OBC. Prices for OBC’s Supporter Service can be found at openbookcollective.org.
“OBC Supporter Service Fee” means a fee equal to five percent (5%) of any Provider Supporter Contribution payable by the Institution under the Agreement.
“Provider” means an open access publisher that has created a Supporter Scheme identified in the Quotation.
“Provider Supporter Contribution” means the supporter contribution for each named Provider as set out in Quotation. The fee will be in line with the Supporter Scheme.
“Support Period” means the duration of the Institution’s subscription to the Supporter Scheme as confirmed by the Institution in the Acceptance Form.
“Invoice (Institution)” means the invoice to the Institution, generated by the OBC after receiving the completed Acceptance Form, confirming the start date and duration of the Support Period, that the Institution accepts the pricing detailed in the Quotation, and that the Institution has agreed to the terms and conditions of this Agreement.
“Quotation” means the above Supporter Scheme pricing sent by the OBC identifying the Supporter Schemes to be subscribed to by the Institution.
“Acceptance Form” means the form used by OBC to confirm the Supporter Schemes subscribed to by the Institution.
“Supporter Scheme” means a scheme for supporting a Provider, to which an Institution may subscribe via the OBC, as described in the OBC Supporter Service.
1.2 Headings in these terms and conditions are for reference purposes only and shall not be deemed to be an indication of the meaning of the clause to which they relate.
1.3 Where the context so implies, words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and vice versa.
1.4 Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 The Agreement consists of these terms and conditions, the above Quotation, and the completed Acceptance Form. If more than one Supporter Scheme is identified in the Quotation then a separate Agreement shall take effect in relation to each of the Supporter Schemes, and references to the Provider in the context of the Agreement are to the Provider that offers the relevant Supporter Scheme.
2.2 By completing and sending to the OBC the Acceptance Form, confirming that the Institution agrees to proceed on the basis of the Quotation, the Institution offers to subscribe for the Supporter Scheme identified in the Quotation on these terms and conditions, which shall apply to the exclusion of any other terms that the Institution seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.3 The Agreement takes effect when OBC issues the Invoice (Institution) and shall continue until it expires or is terminated in accordance with Clause 5 (Term and Termination).
2.4 OBC enters into the Agreement as agent on behalf of the relevant Provider insofar as the Agreement purports to create any rights or obligations for the Provider. OBC enters into the Agreement as principal insofar as the Agreement purports to create any rights or obligations for OBC.
2.5 Access to and use of any materials published or digital services made available by the Provider or OBC shall be subject to any licence terms specified by the Provider or OBC at the point of access, which shall not form part of the Agreement. Nothing in the Agreement shall constitute the grant of a licence in respect of the intellectual property rights of either the Provider or OBC.
3.1 The Provider will publish an acknowledgment via the OBC platform of the Institutions’ support for the Supporter Scheme, except where the Institution has indicated in the Subscription Acceptance Form that the Institution would prefer that the Provider does not do this.
4.1 The Institution agrees to pay the Provider the Provider Supporter Contribution for the Support Period.
4.2 The Provider has appointed OBC as its agent to collect the Provider Supporter Contribution. OBC (as agent for the Provider) or the Provider (as principal) will invoice the Institution for the Provider Supporter Contribution and the Institution shall pay the invoice no later than 30 days after the date of issue.
4.3 The Institution agrees to pay OBC the OBC Supporter Service Fee in consideration for OBC arranging the Agreement. OBC will invoice the Institution for the OBC Supporter Service Fee and the Institution shall pay the invoice no later than 30 days after the date of issue.
4.4 The sums payable by the Institution under the Agreement are stated exclusive of VAT. Where VAT is payable in respect of any sum under the Agreement the Institution shall pay the VAT in addition to that sum at the applicable rate subject to receipt of a valid VAT invoice.
5.1 The Agreement will remain in full force and effect until the end of the Supporter Period as set out in by the Institution in the Subscription Acceptance Form, unless terminated earlier as provided for in this Clause 5.
5.2 Any party may terminate this Agreement at any time on the material breach or repeated other breaches by the other of any obligation on its part under this Agreement by serving a written notice on the other identifying the nature of the breach. The termination will become effective thirty days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach.
6.1 In this Clause 6 an event of "Force Majeure" means circumstances beyond the control of the relevant party (including, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities.
6.2 If a party to the Agreement is prevented or delayed in the performance of any of its obligations under the Agreement by Force Majeure and if such party gives written notice thereof to the other party specifying the matters constituting Force Majeure together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then the party in question shall be excused the performance or the punctual performance as the case may be as from the date of such notice for so long as such cause of prevention or delay shall continue.
7.1 Except as permitted for under this Agreement, neither this Agreement nor any of the rights and obligations under it may be assigned by a party without obtaining the prior written consent of the other parties, such consent shall not unreasonably be withheld or delayed. In any permitted assignment, the assignor shall procure and ensure that the assignee shall assume all rights and obligations of the assignor under this Agreement and agrees to be bound to all the terms of this Agreement.
8.1 In this Clause 8 reference to ‘liability’ include all liability whether in contract, tort (including negligence) or otherwise.
8.2 Except as provided for in Clause 8.5, neither the Institution nor the Provider nor OBC will have any liability arising out of or in connection with the Agreement, for:
i) any indirect or consequential loss;
ii) loss of profits or revenue;
iii) loss of business, contracts, or opportunity;
iv) loss of anticipated savings; or
v) wasted expenditure.
8.3 Except as set out in Clause 8.5, the total liability of the Provider arising out of or in connection with any and all Agreements shall not exceed the total amount of the Provider Supporter Contribution received by the Provider under those Agreements.
8.4 Except as set out in Clause 8.5, the total liability of OBC arising out of or in connection with any and all Agreements shall not exceed the total amount of the OBC Supporter Service Fees received by the OBC under those Agreements.
8.5 No party limits its liability for:
i) death or personal injury to the extent it results from its negligence, or of its employees or agents in the course of their engagement; and
ii) its own fraud or that of its employees or agents in the course of their engagement; or
iii) any other liability which cannot lawfully be limited.
8.6 The rights and obligations of OBC and the Provider under the Agreement are on a several basis. Neither OBC nor the Provider shall have any liability for the actions or omissions of the other under or in connection with the Agreement.
8.7 Nothing in the Agreement limits or excludes the Institution’s liability to pay the Provider Supporter Contribution or the OBC Supporter Service Fee in accordance with the Agreement.
9.1 The Agreement and any dispute arising out of or in connection with it (including non-contractual disputes) shall be governed by and construed in accordance with English law and the parties irrevocably agree that any dispute arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the English courts.
10.1 All notices required to be given under the Agreement shall be given in writing in English and sent by email, courier, or special delivery to the relevant addressee at its address set out below, or to such other address as may be notified by either party to the other from time to time under this Agreement, and all such notices shall be deemed to have been received one (1) day after the date of sending in the case of email or three (3) days after the date of posting in the case of special delivery or despatch in the case of courier: if to the Institution to the address or email address stated in the Subscription Acceptance Form if to the Provider to the address stated in the Supporter Scheme if to the OBC: Dr Joe Deville, Chair, OBC Address, [email protected].
11.1 The Agreement constitutes the entire agreement between the parties and supersedes all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of the parties in writing.
11.2 The invalidity or unenforceability of any provision of this Agreement shall not affect the continuation in force of the remainder of this Agreement.
11.3 The rights of the parties arising under this Agreement shall not be waived except in writing. Any waiver of any of a party's rights under this Agreement or of any breach of this Agreement by the other party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by a party to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
Open Access Book Collective, One Bartholomew Close, London EC1A 7BL, United Kingdom
Open Access Book Collective (operating as Open Book Collective) is a company limited by guarantee incorporated in England and Wales, Company Number 14118614.
Email: [email protected]