ARTICLE 1 – INTERPRETATION
For purposes of this Agreement, except as otherwise expressly indicated:
- “Agreement” means this agreement (including the recitals and schedules) which can be supplemented and amended in writing from time to time;
- capitalized terms used in this Agreement shall have the meaning indicated either in this Agreement or in the OPENJOURNALSYSTEMS.COM Support Options (the “Support Options”), which are incorporated into this Agreement by reference. The Support Options, which set out the various available levels of support at specified rates, can be found at: https://openjournalsystems.com
- descriptive headings are inserted only for convenience of reference. They do not form a part of this Agreement, and are not to be used as an aid in the interpretation of this Agreement;
- all references to currency refer to US Dollars (unless expressed to be in some other currency) and all amounts to be calculated or paid as outlined in this Agreement are to be calculated and paid in US Dollars for all Clients;
- each provision of this Agreement is intended to be severable and if any provision is illegal, invalid, or unenforceable, such illegality, unenforceability, or invalidity will not affect the validity of this Agreement or the remaining provisions; and
- words importing the singular include the plural and vice versa.
ARTICLE 2 – ENGAGEMENT
The Client hereby enlists OPENJOURNALSYSTEMS.COM to provide Services in connection with the Client’s use of authorized versions of specific open source software (the “Supported Software”), as described at https://openjournalsystems.com. This is incorporated into this Agreement by reference and the applicable Support Option level chosen by the Client and any associated Support Fees (the “Support Fees”) as set out in the invoice (the “Invoice”) which will be provided annually to the Client by OPENJOURNALSYSTEMS.COM.
OPENJOURNALSYSTEMS.COM agrees to provide Services to the Client on the terms and conditions of this Agreement and in the manner agreed upon, within the timeframe as stated in the annual Invoice provided to the Client by OPENJOURNALSYSTEMS.COM.
OPENJOURNALSYSTEMS.COM reserves the right to amend the terms of the OPENJOURNALSYSTEMS.COM Hosting Support Agreement, the Supported Software, or any Support Options at any time. However, OPENJOURNALSYSTEMS.COM will provide advanced notice of any amendments that could affect the Services to the Client (“Applicable Amendments”) This will be sent to the Client’s email address as specified in the annual Invoice. As well, any notice of amendments will be posted on the OPENJOURNALSYSTEMS.COM website: https://openjournalsystems.com. To clarify, such amendments may include, but are not limited to, material changes in the Services to the Client.
The Client must review the Applicable Amendments on the OPENJOURNALSYSTEMS.COM website and clearly confirm they are acceptable, alternately the Client may terminate this Agreement for Applicable Amendments in keeping with section 3.5 outlined below. If the Client does not exercise either the confirmation or termination options, the amendments shall be considered in effect 30 days following the sending of the email notification.
ARTICLE 3 – TERM OF THE AGREEMENT
3.1 TERM OF THE AGREEMENT
Unless start and completion dates are expressly included in the Invoice, this Agreement will be valid from the date of the last signature and will remain in effect for an initial term of 12 months (the “Initial Term”).
This Agreement will be automatically renewed for 12 month terms (the “Renewal Term”) unless a written intention to terminate or not renew is sent by either party with at least 30 days’ prior notice before the expiration of the Initial Term or start of the Renewal Term. Sixty days prior to the expiration of the Renewal Term, OPENJOURNALSYSTEMS.COM will provide the Client with an annual renewal Invoice which will include the rates for the upcoming Renewal Term.
3.3 TERMINATION FOR DEFAULT
Notwithstanding any other provision of this Agreement, either party may terminate this Agreement at any time by giving the other a minimum of 60 days’ prior written notice of the effective end date. The Agreement may also be terminated if either party is in material default of the terms or conditions in this Agreement and the default has not been corrected within 30 days after one party has given written notice of the default to the other party.
3.4 TERMINATION BY OPENJOURNALSYSTEMS.COM
OPENJOURNALSYSTEMS.COM may terminate this Agreement for Services by providing 180 days written notice to the Client. In the event of such early termination, OPENJOURNALSYSTEMS.COM will provide a refund of the Support Fees for the remainder of the current term of this Agreement.
3.5 TERMINATION FOR APPLICABLE AMENDMENTS
The Client may terminate this Agreement for Applicable Amendments by providing OPENJOURNALSYSTEMS.COM with written notice no later than 30 days after OPENJOURNALSYSTEMS.COM has notified the Client of the Applicable Amendments. In the event of such early termination for Applicable Amendments, OPENJOURNALSYSTEMS.COM will provide a refund of the Support Fees for the remainder of the current term of this Agreement.
ARTICLE 4 – PAYMENT TERMS
4.1 INVOICING & PAYMENT TERMS
On an annual basis, OPENJOURNALSYSTEMS.COM will issue an Invoice to the Client for the Support Fees that are pre-payable. OPENJOURNALSYSTEMS.COM will send all Invoices to the address provided in the Notice Provision in section 10.8 of this Agreement. The Client agrees to pay within 30 days after the issue date of the Invoice. Payment will be made in US Dollars as specified by the applicable fee level on the Invoice provided by OPENJOURNALSYSTEMS.COM.
The Client shall pay all applicable taxes designated to the extent attributable to this Agreement or to any part, service, or material provided.
ARTICLE 5 – GENERAL PROVISIONS APPLICABLE TO SERVICES
5.1 STANDARD OF SERVICES
OPENJOURNALSYSTEMS.COM’s mandate is to facilitate and improve scholarly publishing and the overall quality of academic research through development, implementation, and support of open source software. The hosting services and custom support offered by OPENJOURNALSYSTEMS.COM are provided to advance this mandate. OPENJOURNALSYSTEMS.COM reserves the right to refuse or terminate the Supported Services to any Client whose publications or associated activities are judged to be inconsistent with OPENJOURNALSYSTEMS.COM’s stated mandate. OPENJOURNALSYSTEMS.COM will use good faith and commercially reasonable efforts to ensure that support services are conducted professionally and by qualified personnel.
Unless expressly included in the Invoice, this Agreement specifically excludes:
- any software other than the Supported Software;
- any classroom training or on-site consulting;
- the design of any application, including layout work;
- copy editing, proofreading, or similar editing services,
- any services including upgrades for any Supported Software that has been modified or customized by the Client, unless undertaken as part of custom programming services specified as part of a Custom Services Agreement;
- data recovery services as a consequence of Client’s deletions, accidental or otherwise, of data, and
- data modification services that cannot be performed via existing software functionality.
ARTICLE 6 – CLIENT RESPONSIBILITIES
The Client agrees not to post or transmit through OPENJOURNALSYSTEMS.COM’s hosting services any material or content that violates or infringes on the rights of others. This includes but is not limited to copyright and related intellectual property laws; soliciting, encouraging, or promoting the use of illegal substances; or any activities that are unlawful, threatening, abusive, harassing, defamatory, libelous, derogatory, invasive of privacy or publicity rights, vulgar, obscene, hateful, pornographic, or otherwise objectionable. The Client also agrees not to post or transmit through OPENJOURNALSYSTEMS.COM’s hosting services anything that gives rise to civil or criminal liability or otherwise violates any local, provincial, or federal laws.
The Client shall not engage in any activity on the hosting services that restricts or inhibits any other user from using the hosting services at OPENJOURNALSYSTEMS.COM by “hacking,” “cracking,” spoofing,” or defacing any portions of the Website. The Client shall not knowingly post or transmit through the hosting services at OPENJOURNALSYSTEMS.COM any software or other materials that contain viruses, worms, time bombs, Trojan horses, or other harmful or disruptive component. This also applies to political campaign materials, chain letters, mass mailings, spam mail, and any robot, spider, site search/retrieval application or other manual or automatic device or process designed to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the hosting services at OPENJOURNALSYSTEMS.COM. The Client agrees that the use of the Services and the Supported Software are at the Client’s sole risk and that OPENJOURNALSYSTEMS.COM is not responsible for any alleged or actual damages caused by or attributed to the use of the Services and Supported Software.
The Client may configure and customize the Supported Software to meet their specific requirements but they will assume responsibility for maintaining any such customizations. OPENJOURNALSYSTEMS.COM is not responsible for ensuring that any Client customizations will continue to function properly following upgrades of the Supported Software. OPENJOURNALSYSTEMS.COM reserves the right to charge an added fee for any upgrades that require additional effort due to extensive Client customization or other unique Client requirements.
6.3 WRITTEN REQUEST AND SUPPORTING INFORMATION
The Client shall always provide a written request for support via email, together with all data that is relevant for resolving each support request. Relevant data could include, but is not limited to, detailed descriptions of the problem, actions that may have led to the problem, screenshots of the problem, and any error messages displayed by the system. The Client is required to respond within 72 hours to any requests by OPENJOURNALSYSTEMS.COM for additional information or feedback.
ARTICLE 7 – CLIENT ACKNOWLEDGEMENTS, REPRESENTATIONS, AND WARRANTI
The Client acknowledges that the use of all Support Options is subject to all applicable state, federal, and international laws and regulations and the Client agrees not to violate these laws and regulations. The Client also agrees that any acts that deliberately damage the hosting services at OPENJOURNALSYSTEMS.COM would be a violation of such laws and a breach of this Agreement. OPENJOURNALSYSTEMS.COM reserves the right to seek damages for any such acts to the fullest extent permitted by law.
7.2 REPRESENTATIONS AND WARRANTIES
The Client represents and warrants to OPENJOURNALSYSTEMS.COM that they:
- are engaged in a lawful enterprise or activity,
- can enter into legally binding contracts and is authorized to enter into this Agreement, and
- are in compliance with all applicable laws in their jurisdiction.
ARTICLE 8 – INTELLECTUAL PROPERTY
8.1 DATA OWNERSHIP
Any data, regardless of format, that is created and uploaded by the Client will be owned by the Client or the existing copyright holder. OPENJOURNALSYSTEMS.COM reserves the right to retain a copy of all data for ongoing access and long-term preservation unless explicitly prohibited by the Client. OPENJOURNALSYSTEMS.COM will deliver to the Client a copy of all data in the existing file formats used by the Services at that time.
8.2 APPLICABILITY OF THE GNU GENERAL PUBLIC LICENSE
All of the Supported Software has been made available as open source software under the terms of the GNU General Public License (“GPL”). The terms and conditions of the GNU GPL also apply to any copying, distribution, or modification that the Client may undertake independently.
ARTICLE 9 – DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, OPENJOURNALSYSTEMS.COM DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPORTED SOFTWARE, CORRECTIONS, AND THE SERVICES PROVIDED. THIS INCLUDES PROMISES, REPRESENTATIONS, AND WARRANTIES AS TO CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTY OF INFORMATION CONTENT OR SYSTEM INTEGRATION.
OPENJOURNALSYSTEMS.COM does not warrant that its advice or programming will be error free. The foregoing disclaimer also includes any third-party service providers such as telecommunications and Internet service providers that may be used by OPENJOURNALSYSTEMS.COM. OPENJOURNALSYSTEMS.COM disclaims all liability whatsoever to the Client or any other party for any act or omission that may result in consequential, indirect, special, or other damages including but not limited to, lost profits, loss of data, or loss of business, even if OPENJOURNALSYSTEMS.COM has been advised of the possibility of such damages.
IN NO EVENT SHALL THE LIABILITY OF OPENJOURNALSYSTEMS.COM TO THE CLIENT, FOR ANY CLAIM WHATSOEVER RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF THE SUPPORT FEES PAID FOR THE SERVICES THAT GAVE RISE TO THE CLAIM WITHIN THE CALENDAR YEAR DURING WHICH THE CLAIM AROSE.
ARTICLE 10 – MISCELLANEOUS PROVISIONS
The parties to this Agreement are, and shall remain, independent contractors with respect to each other. Without exception, nothing in this Agreement will be deemed to establish or otherwise create a relationship of agency, employment, or partnership, between the parties.
10.2 GOVERNING LAW
This Agreement will be governed by and interpreted in accordance with the laws of the State of Arizona, and the laws of United States.
10.3 DISPUTE RESOLUTION
Both during and after the performance of their obligations under this Agreement, both the Client and OPENJOURNALSYSTEMS.COM shall make bona fide efforts to resolve any disputes arising between them by amicable negotiations and provide frank, candid, and timely disclosure of all relevant facts, information, and documents needed to facilitate those negotiations. Both the Client and OPENJOURNALSYSTEMS.COM shall use reasonable efforts to conduct any dispute resolution procedures that may arise as efficiently and cost effectively as possible. Both the Client and OPENJOURNALSYSTEMS.COM shall attempt through mediation to resolve all disputes related to this Agreement, or in respect of any legal relationship associated with it or from it. If the dispute cannot be settled within 30 days, the service will be terminated and OPENJOURNALSYSTEMS.COM will provide a refund of the Support Fees for the remainder of the current term of the Agreement. In the absence of any written agreement otherwise, the place of arbitration shall be Phoenix, Arizona.
Any schedules attached to this Agreement are incorporated into and form part of this Agreement as fully as if they were included in the main body of this Agreement.
This Agreement may not be modified or amended in whole or in part, unless such an amendment is in writing and executed by both OPENJOURNALSYSTEMS.COM and the Client.
Neither the Client nor OPENJOURNALSYSTEMS.COM may assign this Agreement or any of its rights under this Agreement without the prior written consent of the other. Any assignment without prior written consent is ineffective.
10.7 BINDING EFFECT
This Agreement will ensure to the benefit of and be binding upon the heirs, executors, administrators, legal representatives, successors, and permitted assigns of the parties, as applicable.
Any notice or other communication required or permitted to be given or made under this Agreement will be in writing and will be considered effectively given and made if sent by email, delivered personally, or sent by registered mail or prepaid courier service, in each case to the applicable address as follows:
|if to OPENJOURNALSYSTEMS.COM:||13835 N. Tatum Blvd, Phoenix, AZ, 85032|
Attention: Manager of Administrative Services
|if to the Client:||Via the contact information stated on the Invoice |
Any such communication will be deemed to have been given or made and to have been received on the day of delivery. Any party may change its address for service at any time with notice to the other party in accordance with this section.
10.9 ENTIRE AGREEMENT
Except as otherwise agreed in writing by the parties, this Agreement constitutes the entire agreement with respect to the subject matter, and supersedes all previous expectations, understandings, communications, representations, and agreements with respect to the subject matter of this Agreement.
10.10 FORCE MAJEURE
Neither party will be liable for, nor will either party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control. This includes any act of God or public enemy, an act of any military, civil, or regulatory authority, a change in any law or regulation, a fire, flood, earthquake, storm, or other similar event, the disruption or outage of communications, power, or other utility, labor problems, unavailability of supplies, or any other cause which could not have been prevented with reasonable care.
10.11 FURTHER ASSURANCES
The parties will execute and deliver to each other such further instruments and assurances and do such further acts as may be required to give effect to this Agreement.
No party is to be deemed to have waived the exercise of any right that it holds under this Agreement unless such waiver is made in writing, and any such written waiver will apply only to the matter indicated and not to any additional, continuing, or subsequent matter of the same or different kind.
This Agreement may be executed in any number of counterparts with the same effect as if all parties had all signed the same document. All counterparts will be construed together and will constitute one and the same agreement.
10.14 ELECTRONIC TRANSMISSION
This Agreement or any counterpart may be executed by a party and delivered by facsimile or electronically in portable document format (pdf) and, if so executed and delivered, this Agreement or such counterpart will for all purposes be as effective as if the party had executed and delivered the Agreement or a counterpart bearing an original signature.
10.15 EFFECTIVE DATE
This Agreement will become effective upon acceptance of this Agreement. The date this Agreement is accepted will be deemed the date of this Agreement.