Terms and Conditions of Use

By using the Portico archive you agree to abide by the following Terms and Conditions of Use:

1. Definitions:

   “Participating Institution(s)” means the educational institutions, libraries and other interested organizations that are contracted customers for Portico and the electronic service it offers.

   “Qualified Institution(s)” means the educational institutions, libraries and other Organizations that are contracted customers for publishers and or other rights holders and the publications they offer.

   “Authorized Users” means Individuals who are authorized to use a Participating Institution’s or Qualified Institution’s facility who (a) are affiliated with a Participating Institution or Qualified Institution as students, faculty or employees, or (b) are physically present or located in the Participating Institution’s or Qualified Institution’s facility (“Walk-In Users”), or individuals accessing Open Access Content (as defined below).

2. Grant of License:
   Portico hereby grants Participating Institutions and their Authorized Users a nonexclusive, nontransferable, limited license ( “License”) to use the ejournals and ebooks in the Portico archive ( “Content”) in accordance with these terms and conditions. Content also includes “Open Access Content” which is Content made available by Portico to all individuals, subject to these Terms and Conditions of Use, as amended from time to time, and subject to any additional terms which may be applicable to the Open Access Content. During the Pre-trigger Event Period and Post-trigger Event Period (as defined below) access to the ejournals and ebooks shall be limited to Participating Institutions and their Authorized Users and access to the dCollections shall be limited to Qualified Institutions and their Authorized Users as further described herein. There shall be no sublicensing, assignment, or any transfer of the License, and any attempt at such sublicensing, assignment or transfer is void. Portico, from time to time, may make available other materials in the Portico archive, which materials may be subject to additional terms and conditions of use.

   Portico has obtained the right to provide the Content from the publishers and/or other rights holders (“Publisher(s)”) of the Content contained in the archive, and copyright therein is retained by the Publishers. The Publishers are third party beneficiaries to this License, and have the right to enforce this License directly.

3. Access to Content:

   Participating Institutions and Qualified Institutions may have entered into a license agreement with one or more Publishers relating to access to specific Content. The Portico Terms and Conditions of Use are intended to cover only situations in which Portico is providing access to Content that is no longer available from the Publisher or another source owing to the occurrence of specific trigger events, such as a Publisher going out of business and there not being a successor, or where Portico has been designated by the Publisher as a source for perpetual access for former subscribers or purchasers of the Content. Prior to a trigger event (“Pre-trigger Event Period”), Portico shall provide access to Participating Institutions, Qualified Institutions, and Publishers only for verification and audit or testing purposes. In addition, during the Pre-trigger Event Period, the relevant Publisher license shall govern the use of the Content except that these Terms and Conditions of Use shall govern where access to the Content is provided by Portico, including for purposes of verification and auditing or testing purposes as described below in Section 3(i). After a trigger event (“Post-trigger Event Period”), in the event of a conflict between the Publisher license and these Terms and Conditions of Use, these Terms and Conditions of Use will prevail.

   1. Pre-trigger Event Period: Access to the Content shall be available to Publishers and designated staff at each Participating Institution and Qualified Institution via password-controlled access only for verification and audit or testing purposes. This auditing privilege is not intended to be used for delivering Content to patrons, or as a replacement for commercial documents delivery services or to fulfill Interlibrary Loan.
   2. Access to Content shall be available to Participating Institutions, Qualified Institutions and Authorized Users after a trigger event or post-cancellation access claim as follows:
   • Trigger Event Access:Participating Institutions, Qualified Institutions and Authorized Users shall gain access to applicable Content when specific conditions or “Trigger Events” occur which cause titles to no longer be available from the Publisher or any other source. Please note that access to dCollections upon the occurrence of a trigger event is limited to Qualified Institutions and their Authorized Users. Trigger events include: (1) cessation of a Publisher’s operations (a period longer than ninety (90) days is required for e-books); (2) discontinuation of a title by a Publisher (a period longer than ninety (90) days is required for e-books and dCollections); (3) back issues or titles no longer offered by a Publisher for a period longer than ninety (90) days; or (4) catastrophic and sustained failure of a Publisher’s business or delivery platform for a period longer than ninety (90) days. Participating Institutions and Qualified Institutions may not use Content accessed after a trigger event for the purpose of fulfilling occasional requests from other libraries, a practice commonly called Interlibrary Loan.
   • Post-Cancellation Access claim: Upon receipt of a claim from a Participating Institution or Qualified Institution that it was a purchaser or subscriber of applicable Content and confirmation of the past subscription status by the Publisher, Portico shall provide access to the applicable Content to the requesting Participating Institution or Qualified Institution. Participating Institutions and Qualified Institutions that gain access to the Content by way of post-cancellation access claim shall not use the accessed Content for Interlibrary Loan and shall not reproduce or distribute the Content in bulk, such as by including Content in course packs, electronic reserves, repositories, or organizational intranets.
4. Use of the Portico Archive:
   The Content is intended for personal, noncommercial academic, educational and research use by Participating Institutions, Qualified Institutions, and Authorized Users upon (except as otherwise noted) the occurrence of a Trigger Event or confirmation of a post-cancellation access claim. The following permitted uses may be undertaken within the premises of an Authorized User’s affiliated Participating Institution or Qualified Institution. Except in the case of Authorized Users who are Walk-In Users, Permitted Uses also may be undertaken remotely through secure access methods.
   1. Permitted Uses:Participating Institutions, Qualified Institutions, and Authorized Users may access, search, view, reproduce, display, download, print, perform, and distribute applicable Content provided they have prior permission from Portico and the Publisher and abide by the restrictions in Section 5(ii) and elsewhere in these Terms and Conditions of Use, for the following Permitted Uses.
      1. research activities;
      2. classroom or organizational instruction and related classroom or organizational activities;
      3. student assignments;
      4. as part of a scholarly, cultural, educational, or organizational presentation or workshop, if such use conforms to the customary and usual practice in the field;
      5. in research papers or dissertations, including reproductions of the dissertations, provided such reproductions are only for personal use, library deposit, and/or use solely within the institution(s) with which the Authorized User and/or his or her faculty readers are affiliated
      6. fair use under Section 107 of the U.S. Copyright Act, educational exceptions, or other similar provisions of the copyright laws or other intellectual property right laws in the United States or in other countries.
         g. Additional permitted uses may be available for Open Access Content, depending on the applicable license for the Open Access Content.
   2. Prohibited Uses: Authorized Users may not:
      1. use or authorize the use of the Content for commercial purposes or gains, including charging a fee-for-service for the use of Portico beyond reasonable printing or administrative costs. For purposes of clarification, “commercial purposes or gains” shall not include research whose end-use is commercial in nature;
      2. provide, transmit, and/or authorize access to the Content other than Authorized Users;
      3. modify, obscure, or remove any copyright notice or other attribution included in the Content;
      4. attempt to override, circumvent, or disable any encryption features or software protections employed in the Portico archive, or set up a proxy or anonymous remailer for purposes of allowing access to Portico;
      5. systematically print out or download Content to stock or replace print holdings;
      6. undertake any activity such as computer programs that automatically download or export Content, commonly known as web robots, spiders, crawlers, wanderers or accelerators that may interfere with, disrupt or otherwise burden the Portico server(s) or any third-party server(s) being used or accessed in connection with Portico;
      7. access, use or tamper with any non-public areas of Portico, test or probe or for any purposes exploit any vulnerability of Portico;
      8. make any use, display, performance, reproduction, or distribution that exceeds or violates these Terms and Conditions of Use; or incorporate Content into an unrestricted database or website;
      9. download or print, or attempt to download or print: an entire issue or issues of journal or substantial portions of the entire run of a journal, other than on an isolated basis because of the relevance of the entire contents of a journal issue to a particular research purpose; or substantial portions of an entire chapter or chapters of a book or an entire book; or substantial portions of a collection or an entire collection;
      10. reproduce or distribute Content in bulk.
          j.Additional uses may be prohibited for Open Access Content, depending on the applicable license for the Open Access Content.

          Notwithstanding (j) above, Portico neither allows nor disallows the inclusion of triggered Content in e-reserves or course packs (i.e. the inclusion of portions of the Content in a collection or compilation of other content for use by students in a class for the purposes of instruction). Licensee agrees to indemnify and hold Portico and its contributing publishers harmless and assumes sole responsibility for any and all liability and costs incurred in connection with Licensee’s creation and/or distribution of any e-reserve or course pack containing the Content. It is acknowledged and agreed that the inclusion of Content that is made available pursuant to a Post-Cancellation Access claim Pursuant to 3(ii) above in course packs is prohibited.

          Publisher contact information is available on the Portico website. The restrictions on use of Content set forth in these Terms and Conditions of Use shall survive any termination of the License. Additional restrictions, or fewer restrictions, may apply to your use of certain Content. Copyright is not claimed as to any work of the United States government.

      11. Intellectual Property Rights:

          5.1General Intellectual Property Rights. The Portico archive and any trademarks, issued patents and patent applications, copyrights and copyright registrations and applications, rights in ideas, designs, works of authorship, derivative works, and all other intellectual property rights (collectively, “Intellectual Property”) relating to the Portico archive and its participating Publishers and Content are proprietary to Portico or the Publishers, subject to the rights of third parties. Participating Institutions, Qualified Institutions, and Authorized Users’ use of Portico implies no rights to Intellectual Property except for the limited rights set forth in these Terms and Conditions of Use.

          5.2 Trademarks. Portico® and the Portico logo are trademarks of ITHAKA. Neither Portico nor Participating Institution or Qualified Institution may use the other’s name or trademark(s) and Participating Institutions, Qualified Institutions or Authorized Users may not use the name or trademark(s) of Publishers in a way likely to cause confusion as to the origin of goods or services, or to endorse or show affiliation with the other, except as specifically approved. Notwithstanding the foregoing, (i) Portico may use Participating Institutions’ or Qualified Institutions’ names and or the names of their libraries in brochures or other materials to identify Participating Institutions and Qualified Institutions as participants in Portico along with other participants, and (ii) Participating Institutions and Qualified Institutions are encouraged to use Portico’s name and logo to announce participation to Authorized Users and to train Authorized Users on the Use of Portico.

          5.3 Use of Software. Portico utilizes software and other electronic tools designed to permit Authorized Users to access, use, reproduce, display, and distribute the Content (“Access Software”). Use of the Access Software and its related documentation is limited to the License granted herein. Authorized Users may not copy, distribute, modify, decompile, reverse engineer, circumvent, override or disable encryptions or other protections in, or create derivative works from the Access Software. You have no rights to the proprietary software and related documentation provided to you to access the Portico archive.

      12. Warranty; Disclaimers:

          6.1 The Portico archive may contain links to or may be accessible from links within related or unrelated World Wide Web sites and resources. Portico and the Publishers shall not be liable for any loss, injury, claim, liability, or damages of any kind arising out of or in connection with such links. You should direct any concerns regarding any outside link to its site administrator.

          6.2 Portico will not be held liable for any delays, inaccuracies, errors or omissions in the Portico archive, in the transmission or delivery of all or any part thereof, or for any damages arising from any of the foregoing. Portico does not represent or endorse the accuracy or reliability of any Content. THE PORTICO ARCHIVE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PORTICO FURTHER MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB OR OTHER SUCH COMPUTER PROGRAM. YOU HEREBY ACKNOWLEDGE THAT USE OF THE PORTICO ARCHIVE IS AT YOUR SOLE RISK.

      13. Access, Support, and Security:

          7.1 Responsibilities of Portico
          Portico shall use reasonable efforts to provide continuous availability of the Portico archive subject to periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of Content as they become available, and downtime related to equipment or services outside the control of Portico, including public or private telecommunications services or internet nodes or facilities (“Maintenance Downtime”). If Portico fails to provide online availability to the Portico archive for more than 72 hours during any period of 30 consecutive calendar days, Participating Institutions or Qualified Institutions may, upon written request, (a) be granted its choice of a refund or a credit of a prorated portion of its Annual Archive Support Payment for each 30-day period so affected or (b) terminate its agreement by providing written notice to Portico.

          7.2 Responsibilities of Authorized Users
          Authorized Users are responsible for maintaining the confidentiality and security of their username and/or password (if such are provided), and for all usage activity by them of Portico. Authorized Users may not provide Content in Portico to anyone else, except to Authorized Users, including by setting up an anonymous remailer for purposes of allowing access to Portico.
          Authorized Users promptly shall notify Portico, and where applicable, their affiliated Participating Institution or Qualified Institution of any known or suspected unauthorized use(s) of their account, if applicable, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure or use of their username, password, and/or IP address. Any use of Portico beyond the scope or in violation of these Terms and Conditions of Use, knowing use of any password or username of another, or a fraudulent, abusive, or otherwise illegal activity, may be grounds for termination of an Authorized User’s account, or termination of access to Portico from their IP address, without notice and at Portico’s sole discretion.

          7.3 Responsibilities of Participating Institutions and Qualified Institutions

          7.3.1 Participating Institutions and Qualified Institutions shall make reasonable efforts to ensure that access to the Content is limited to Authorized Users and to protect the Content from unpermitted use. Participating Institutions and Qualified Institutions shall notify Portico of any such unpermitted use of which they learn or are notified and shall cooperate with Portico in resolving problems of unpermitted use. In the event of violation of these Terms and Conditions of Use by an Authorized User, (a) Portico may suspend or terminate, or, where practicable, request that Participating Institution or Qualified Institution suspend or terminate, such Authorized User’s access to the Content; (b) Portico may suspend or terminate the access of the Internet Protocol (“IP”) address(es) or other authorization and authentication mechanisms from which such unauthorized use occurred; and/or (c) Portico may request Participating Institution or Qualified Institution to consider the imposition of further reasonable restrictions on access to, and downloading and printing from, the Portico archive. Portico shall make reasonable efforts to contact the Participating Institution or Qualified Institution prior to any suspension or termination of access and to restore access promptly following successful resolution of the matter.

          7.3.2 The Portico archive is intended to be accessible by telecommunications links between Portico’s storage locations and Participating Institutions and Qualified Institutions, or Authorized Users’ workstations or devices approved in advance in writing by Portico. Participating Institutions and Qualified Institutions and/or Authorized Users are responsible for establishing and maintaining hardware and Internet access to provide access to, and to transmit, the Portico archive to Authorized Users. Participating Institutions and Qualified Institutions understand and agree that Internet browser software is required to access the Portico archive. Participating Institutions, Qualified Institutions, and Authorized Users understand and agree that from time to time the required and/or recommended hardware and software for accessing the archive may be updated. Participating Institutions, Qualified Institutions, and Authorized Users shall be responsible for all costs associated with the use of and with establishing access to the Portico archive, including but not limited to any telecommunications or other charges imposed by carriers, proprietary network operators and Internet access providers, or licenses for browser software, if any, as well as for all costs associated with printing from the Portico archive.

      14. Terms and Conditions Subject to Change:

          In the interest of managing the evolving needs of Participating Institutions, Qualified Institutions, Authorized Users, and Publishers, Portico reservesthe right to modify these Terms and Conditions, or any aspect of Portico, at any time. The most updated Terms and Conditions of Use will be posted on the Portico website. Portico shall notify Participating Institutions and Qualified Institutions via email of material modifications. A modification shall become effective for Participating Institutions and Qualified Institutions if it does not object in writing to Portico within 60 (sixty) days from the time Portico emails notice of the modification. In the event of such an objection, the Participating Institution or Qualified Institution shall have the right to terminate the Agreement on 30 (thirty) days written notice.

      15. Privacy Policy:
          Use of Portico indicates acceptance of Portico’s Privacy Policy, available at http://www.portico.org/digital-preservation/privacy-policy/ as it may be amended from time to time.
      16. Force Majeure:
          Neither Portico nor Participating Institutions, Qualified Institutions, or Authorized Users shall be liable for failures or delays in performing their obligations pursuant to this License arising from any cause beyond their control, including but not limited to, act of God, acts of civil or military authority, terrorism, fires, strikes, lockouts or labour disputes, epidemics, wars, riots, earthquakes, storms, typhoons and floods and in the event of any such delay, the time for either party’s performance shall be extended for a period equal to the time lost by reason of the delay. If the conditions giving rise to the delay continue beyond thirty (30) consecutive days, either party may terminate its agreement with the other by giving written notice to the other party.
      17. General:
          11.1 These Terms and Conditions of Use shall be interpreted and construed according to United States Federal law, excluding any such laws or conventions that might direct the application of the laws of another jurisdiction, and venue shall lie exclusively in the federal and state courts of the United States, excluding any such laws to the contrary.

          11.2 If any provision or provisions of these Terms and Conditions of Use shall be held to be invalid, illegal, unenforceable, or in conflict with the law of any jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected or impaired thereby. A waiver of any breach of these Terms and Conditions of Use shall not be deemed a waiver of other breaches of these Terms and Conditions of Use.

          11.3 The English language version of agreements with Portico shall be controlling over any other
          version.

          11.4 These Terms and Conditions of Use are for the sole benefit of the parties to these Terms and Conditions of Use and are not intended for the benefit of any third party. The parties expressly disclaim the creation of any third party beneficiary rights under these Terms and Conditions of Use.

      Questions or Comments
      Please contact us with any questions or comments regarding these terms of use.

      Last Updated on August 27, 2015