(3) Authorized User
ASME's grant to you of online access to each ASME journal for which you maintain
a current subscription to the print version thereof extends only to you
individually and may not be transferred to, or extended to, others. You agree
to maintain your User ID and password as private and confidential information.
Unauthorized use of the Subscribers User ID and password for online access
to the ASME journals, with or without the Subscribers knowledge, is a breach
of this Agreement and a violation of ASME's copyrights.
(4) Permitted Use
The Subscriber is permitted online access to the ASME journals referred to
in Section 1, and may download or print text, search results, or other
information from such ASME journals solely for the private use or research
of the individual Subscriber. The Subscriber agrees to use this online access
in a way that conforms with all applicable laws and regulations. The Subscriber
specifically agrees not to make any attempt to gain unauthorized access to
any other system or network. ASME grants the Subscriber permission for brief
quotations from the ASME online journal article texts, with the customary
acknowledgment of the source, subject to the restrictions, if any, set forth
in the article
(5) Prohibitions on Certain Uses
Altering, recompiling, copying, reselling, redistributing, publishing or
republishing (beyond the brief quotations permitted under Section 4) of any
journal text, output, search results, or other information from any ASME
journal, or any portion thereof, including without limitation, copyright,
trade secret, proprietary and/or other legal notices contained therein, in
any form or medium is prohibited. Systematic downloading, service bureau
redistribution services and/or the making of print or electronic copies for
transmission to non-subscribers are prohibited. All rights not expressly
granted are reserved to ASME. ASME shall not be required to distribute, and
Subscriber shall not redistribute, any ASME online journal to a country where
the export thereof is prohibited by U.S. law or regulation.
(6) Duration of Agreement
This Agreement will become effective upon receipt by ASME of the Agreement
signed by you, and, subject to the terms and conditions of this Agreement,
will remain in effect while you maintain a current print subscription to
the ASME journal(s). This Agreement will terminate:
a. Subject to (b) and (c) below, if the print subscription lapses
(termination is effective at the end of the period during which a subscription
is maintained).
b. Immediately, if any term or condition of this Agreement is violated
for any reason, knowingly or unknowingly.
c. Following thirty (30) days prior written notice by ASME of any
change in the terms of this Agreement, receipt by ASME of notice from you
in writing, or by e-mail or by fax that you do not accept such change or
changes. (In the absence of any such objection by Subscriber, ASME's new
terms shall apply.)
(7) Copyright
ASME online journals and their contents including abstracts, are copyrighted
by ASME and are subject to all applicable copyright, database protection
and other rights of ASME as copyright owner and publisher under the laws
of the United States and other countries. Copyright notices in the ASME journals
may not be removed, obscured, or modified in any way.
(8) Failure of Performance
Following online access approval, the Subscriber will be permitted to attempt
online access to the ASME journals referred to in Section 1 at any time.
ASME, however, will not be liable for any delay, downtime, transmission error,
software or equipment incompatibilities, force majeure or other failure of
performance. ASME will use commercially reasonable efforts to correct any
material performance problem brought to its attention and may suspend performance
pending such correction.
(9) Official Version of Record ASME is responsible for ensuring that
the online version of its journals correspond in content with the print versions,
but ASME does not guarantee that they do. In the event of any inaccuracy
or any discrepancy between the print and online versions, the print version
will be the official version of record.
(10) Disclaimer of Warranties; Limitation of Liability;
Indemnification
ASME warrants that it is entitled to grant the licenses granted in this
Agreement. EXCEPT AS SET FORTH IN THE PRECEEDING SENTENCE, ASME MAKES
NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESSED OR IMPLIED, WITH
RESPECT TO THE ASME ONLINE JOURNALS, INCLUDING THEIR QUALITY, ORIGINALITY,
SUITABILITY, SEARCHABILITY, OPERATION, PERFORMANCE, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. ASME SHALL NOT BE LIABLE FOR: EXEMPLARY,
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES, ARISING
OUT OF OR IN CONNECTION WITH THE SUBSCRIPTION OR LICENSES GRANTED HEREUNDER,
THE USE OR INABILITY TO USE ANY ASME ONLINE JOURNAL, ASMES PERFORMANCE
UNDER THIS AGREEMENT, TERMINATION OF THIS AGREEMENT BY ASME OR THE LOSS
OF DATA, BUSINESS OR GOODWILL, EVEN IF ASME IS ADVISED OR AWARE OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY
OF ASME FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF ANY BREACH
OR TERMINATION OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY THE
SUBSCRIBER TO ASME FOR THE ONLINE JOURNAL SUBSCRIPTION, BUT NOT LESS
THAN TWENTY-FIVE DOLLARS ($25.00), FOR THE CURRENT SUBSCRIPTION YEAR
IN WHICH SUCH CLAIM, LOSS OR DAMAGE OCCURRED, WHETHER IN CONTRACT, TORT,
OR OTHERWISE, INCLUDING WITHOUT LIMITATION DUE TO NEGLIGENCE. The foregoing
limitation of liability and exclusion of certain damages shall apply
regardless of the success or effectiveness of other remedies. No claim
may be made against ASME unless suit is filed thereon within one (1)
year after the event giving rise to the claim. The Subscriber assumes
sole responsibility for all use of the ASME online journals and agrees
to indemnify and hold ASME harmless from and against any and all claims,
liabilities, damages, expenses (including attorneys' fees and experts
costs, penalties and fees, if any for the enforcement of this Agreement
and otherwise for ASMEs defense of indemnified claims), losses and threatened
losses arising from or in connection with any breach of this Agreement,
including without limitation, claims of unauthorized use.
(10) General
This Agreement constitutes the entire agreement between the parties and
supersedes any prior communication between the parties with respect to the
subject matter hereof. Subject to termination under Section 6, this Agreement
may be amended only by a written instrument signed by both parties. The headings
used in this Agreement are for convenience only and are not to be considered
in construing the terms of this Agreement. The Subscriber may not assign
or transfer its rights under this Agreement. The provisions of Sections 4,
5, 7, 9, 10 and 11 hereof shall survive any expiration or termination of
this Agreement. This Agreement will be governed by, and construed in accordance
with, the laws of the State of New York, applicable to contracts entered
into and fully performed in the State of New York. Any action arising out
of or relating to this Agreement or any ASME journals shall be brought in
courts situated in Nassau County, New York and the parties consent to the
jurisdiction of such courts.
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