BioMed Central

Consortium of Institutions Members Agreement

AGREEMENT DATE: 3rd January 2006
PARTIES:
BioMed Central Limited whose registered office is situated at Middlesex House, 34-42 Cleveland Street, London W1T 4LB (“BMC”)
Council of Australian University Librarians, LPO Box 8169, ANU, Canberra, ACT 2601, Australia (“the Consortium”)
MEMBERSHIP FEE: £54,147.10

INSTITUTIONS

Australian National University – Supporters Membership
Charles Darwin University – Supporters Membership
Curtin University of Technology* – Supporters Membership
Deakin University – Supporters Membership
Flinders University – Prepay Membership
James Cook University – Supporters Membership
La Trobe University – Prepay Membership
Monash University – Supporters Membership
Murdoch University – Supporters Membership
Queensland University of Technology – Prepay Membership
The University of Melbourne – Prepay Membership
University of Adelaide – Prepay Membership
University of Auckland – Prepay Membership
University of New South Wales – Supporters Membership
University of Queensland – Supporters Membership
University of South Australia – Supporters Membership
University of Western Australia – Supporters Membership
University of Western Sydney – Supporters Membership
University of Wollongong – Supporters Membership

MEMBERS

means the students enrolled or accredited to the Institution and the teaching and research staff employed by or otherwise accredited to the Institution.
THE TERM: [12] months from the Commencement Date
COMMENCEMENT DATE: 1st of January 2006 except * 15th of December 2005
PRODUCTS (to which each of the Institutions are entitled to a discounted subscription or license pursuant to clause 2.5)
Arthritis Research & Therapy
Breast Cancer Research
Critical Care
Faculty of 1000 Biology
Genome Biology
Images.MD
All Current Reports Titles
All Current Treatment Options Titles
Protein Structure and Function
Peoples Archive
SPECIAL TERMS:
The parties agree to the terms of this Consortium of Institutions Members Agreement which incorporates the Consortium Terms and Conditions attached.
………………………………. ……………………………….
BMC Consortium

Consortium Terms and Conditions

1. Definitions

In this Agreement, unless the context requires the following expressions have the following meanings;

1.1 Members are those persons identified in the Schedule.

1.2 Article Processing Charges means the charges levied by BMC on the submitter of primary research material prior to publication.

1.3 The Site means the Internet Site at the URL www.BioMedCentral.com

1.4 The Institutions Page means a web page on the Site dedicated to the Member Institution on which the Institution is able to display its logo (if so required), the articles by authors from that Institution that have been published in any of the journals published by BMC, and any other articles by authors from that Institution, provided the bibliographic details are available on an OAI-compliant server at the Institution

1.5 Institution means each of the Institutions identified in the Schedule.

2. BMC’s Obligations

In consideration of the payments made by the Consortium and subject to the terms and conditions of this Agreement BMC shall during the term of this Agreement;

2.1 Not charge Members or Institutions Article Processing Charges for any primary research material submitted by a Member or the Institution that is selected for publication on the Site

2.2 List the Institution on the Web Site as an Institutional Member ;

2.3 Provide a hypertext link from the entry for the Institution on the Institutional Members List on the Site to the Institutions Page;

2.4 Provide a reasonable number of hypertext links from the Institutions Page and from the articles listed to the Institutions web site(s), the URLs of which have been provided to BMC;

2.5 Grant a discount of 15% of the applicable subscription price for any institutional subscription or licence to any of the Products taken by the Institution.

3. Editorial Independence

Nothing herein contained shall oblige BMC to publish any article submitted to BMC by a Member or an Institution. The Consortium for itself and on behalf of each Institution acknowledges that the selection of material to be published on the Site is entirely at the discretion of BMC and the Consortium and each Institution waives any claim it may have against BMC in the event that BMC refuses or declines to publish any material (or part thereof) submitted by a Member or an Institution.

4. Terms of Publication

The Consortium and each Institution acknowledges that before any material submitted by a Member or an Institution will be accepted for publication the author and (if different) the owner of any copyright in such material will be required to agree to BMC’s then existing terms and conditions of publication (including without limitation the terms relating to Open Access).

5. Institutional Membership Fee

The Consortium agrees to pay to BMC the Membership Fee within 30 days of the Commencement Date. Provided that BMC is satisfied with the manner in which the Consortium and each Institution has performed its obligations under this Agreement the Consortium will receive before the end of the Term an invoice for fees for renewal of the Agreement for a further period of one year. If the Consortium does not pay the renewal fees by the end of the Term, BMC will assume that the Institution does not wish to renew the Agreement and the Agreement will terminate. All amounts payable by the Consortium under this Agreement shall be exclusive of any sales, value added or similar taxes.

6. Term and Termination

6.1 This Agreement shall begin on the Commencement Date and continue for an initial period of the Term as defined in the Schedule. The Term may be renewed for additional one year periods, subject to payment of appropriate fees and acceptance thereof by BMC, in accordance with Clause 5.

6.2 Either party may terminate this Agreement at any time upon written notice to the other if the other party defaults by failing to perform any obligation on its part. The termination will become effective thirty days after receipt of written notice unless, in the case of a remediable default, during the relevant period of thirty days the defaulting party has remedied the default.

6.3 Either party may terminate the Agreement forthwith on notice in writing to the other if the other party is unable to pay its debts or ceases or threatens to cease to carry on business, goes into administration, receivership or administrative receivership, or any event analogous to any of the foregoing occurs in any jurisdiction.

7. Force Majeure

Either party's failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or services, shall not be deemed a breach of this Agreement.

8. Notice

Any notice to be served on either party by the other made under this Agreement shall be in writing sent by prepaid recorded delivery or registered post to the address of the addressee as set out in the Schedule or to such other address as notified by either party to the other as its address for service of notices and all such notices shall be deemed to have been received within 48 hours after posting.

9. Liability

9.1 Neither party excludes or limits liability to the other party for death or personal injury caused by its own negligence or any other liability the exclusion or limitation of which is expressly prohibited by law.

9.2 Except as provided for in Clause 9.1 above, the liability of BMC in respect of any and all claims (whether in contract or in tort) arising out of or in connection with this Agreement is limited in respect of each event or series of connected events to the greater of US$10,000 or an amount equal to the Membership Fees paid under this Agreement.

9.3 Except as provided for in Clause 9.1, notwithstanding anything else contained in this Agreement in no event shall BMC be liable to the Institution for:

(a) loss of profits, business, revenue, goodwill, anticipated savings; and/or

(b) indirect, special or consequential loss or damage.

10. Governing Law

The Agreement is governed by and construed in accordance with English Law and the parties agree to submit to the non-exclusive jurisdiction of the English courts.

11. Severability

In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.

12. Waivers

No provision of this Agreement or breach thereof may be waived except in writing signed by the party against whom the waiver is sought to be enforced.

15. Consortium

The Consortium warrants that (a) it has all necessary power and authority to execute this Agreement for itself and as agent for each Institution and (b) this Agreement shall bind the Consortium and each Institution as if each Institution were a party to this Agreement.