Welcome to theopenscholar.com (the “Site”). Your access to and use of the content, materials and information, and the hosting, support and other services, made available on or through the Site (collectively, the “Services”) are subject to these Terms of Service (“Terms of Service”) and all applicable laws. The Site is operated by OpenScholar, LLC (“OS”) from its offices within the United States. OS makes no representation that the Services made available on or accessed through the Site are appropriate or available for use in other locations, and access to them from territories where such access is illegal is prohibited. OS may change or modify these Terms of Service, in whole or in part, at any time by updating this posting without prior notice or liability to users. By accessing and/or using the Services – whether you are a “Visitor” (which means that you simply browse the Site) or a “Registered User” (which means that you have registered with OS through the Site) – you acknowledge that you have read, understood and agree to be bound by these Terms of Service and to comply with all applicable laws. The terms “you”, “your”, or “user”, as used in these Terms of Service, refer to a Visitor or a Registered User.
1. Your Account/Registration
Registration and/or sign up are required, among other things, to create an account and access certain portions of the Services, including the creation or publishing of your own websites (“Your Sites”). By registering, you represent and warrant to OS that: (a) you are 18 years of age or older and the age of majority in your state of residence as of the time you register as a Registered User; (b) all information provided by you to OS during the registration process is truthful, accurate and complete; (c) you will comply with all terms and conditions of these Terms of Service; and (d) you will not use the Services or any content, materials or information obtained from the Site, for any purpose that is unlawful or prohibited by these Terms of Services.
As a Registered User, you agree to maintain and promptly update your registration data as necessary to keep it accurate, current, and complete. OS may terminate your access to the Site (or portions thereof) if any of the information provided is found to be inaccurate, false, out of date or incomplete, or for violating these Terms of Service and/or the law, without prior notice or liability.
As part of the registration process, you are required to select and use a password. As a Registered User, you acknowledge that you are solely responsible for all activities that occur under your password or account while using the Services. You agree to abide by all applicable laws in connection with your use of the Services, including those related to intellectual property rights, data privacy, international communications, and the transmission of technical or personal data.
You are responsible for maintaining the security and confidentiality of your password and monitoring and controlling access to your account. You agree to notify OS immediately of any unauthorized use of any account or password, or any other known or suspected breach of security. OS cannot and shall not be liable for any loss or damage in the event of an unauthorized use by a third party of your account or password.
If you no longer wish to be a Registered User, you may deactivate your account at any time by visiting http://thescholr.com. Once your account is deactivated, it will not be viewable on the Site and Your Sites will no longer be accessible. It will still be possible to reactivate your account for up to 90 days from the date it is deactivated. After 90 days, we begin the process of deleting your account from our systems. As with any website, even if a user deletes and deactivates the account, some information previously posted may still be accessible by third parties. OS is not responsible for the continued accessibility of the information posted by a user prior to the deactivation of his/her account.
OS does not claim ownership of any information or material you or users of Your Site transmit, post or upload to or through the Services by any means (“Submissions”). You retain your rights to the Submissions made through the Services. You are solely responsible for all Submissions and all other content transmitted, posted, or uploaded and activity that occurs under your account even when such content is transmitted, posted, or uploaded by others, for example by users of Your Site. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to transmit post or upload Submissions and to grant the rights granted by you herein. By making a Submission, you automatically grant to OS and its service providers, a royalty-free license and right to host such Submission in connection with the Services.
By posting Submissions and other content to Your Site (“Public Content”), you agree to allow anyone to view and share such content and to treat it as non-confidential. All Public Content, may be promoted and linked by OS without any compensation to you or any third party.
You warrant and represent that you shall not transmit, post or upload on Your Site or through the Services any Submission that is, or whole or in part, libelous, scandalous, inflammatory, discriminatory, defamatory, false, threatening, vulgar, obscene, pornographic, profane, abusive, harassing, invasive of another’s privacy, hateful or bashing, aimed at gender, race, color, sexual orientation, national origin, religious views or disability, or otherwise unlawful, or that violates or infringes on the privacy, publicity, intellectual property, proprietary, or contractual rights of any third party.
You agree that OS is not liable for any content that is provided by users. OS does not represent or warrant the truthfulness, accuracy or reliability of any content transmitted, posted or uploaded through the Services by users or endorse any statements, representations or opinions expressed by users. Your reliance on content, statements, representations or opinions express by users shall be at your own risk.
OS is not responsible for screening or monitoring Submissions made or other content transmitted, posted or uploaded through the Services by users. If notified by a user of any content transmitted, posted or uploaded through the Services allegedly in violation of these Terms of Service, OS may investigate the allegation and determine in good faith and its sole discretion whether to remove such content or any portion thereof. OS shall have no liability or responsibility to users for performance or nonperformance of such activities.
OS reserves the right not to post or to remove any content posted, uploaded or submitted through the Services for any reason, including, without limitation, any Submissions or other content that, in its sole discretion, it deems to be in violation of these Terms of Service.
Users understand and acknowledge that their Submissions may receive exposure on the Internet, and may be subjected to comments from other users. OS is not responsible for any remarks, including any critical or derogatory remarks, posted by users or any third parties.
3. Fees and Payment
If you wish to have OS host and publish Your Site and provide related services you will need a paid subscription. The fees for paid subscriptions are not license fees, but charges due for use of templates, storage, support and related services (the OS software is released for free under the terms of the GNU Affero General Public License version 3 – AGPLv3 – found at http://www.gnu.org/licenses/agpl-3.0.en.html).
You agree to provide OS with complete and accurate billing and credit card information in connection with your paid subscription(s). If the information you have provided is false or fraudulent, OS reserves the right to terminate your access to the Services in addition to any other legal remedies.
The fees for the paid subscription will be set out at http://thescholr.com and are subject to change from time to time. You agree to pay the subscription fees and any other charges (including any applicable taxes) for the specific paid Services plan you select in accordance with the fees and billing terms in effect at the time you subscribed to such services. All fees and charges, when paid, are nonrefundable and accrue on the first day of the initial subscription term or successive renewal term until terminated, regardless of whether or not you actually use the Services.
Payment for all paid subscriptions is handled for OS by a third party service provider – currently Stripe – and your credit card statement may include their respective identifier. If you believe any fees or charges to your account are incorrect, you must contact us in writing within thirty (30) days of the date of the bill containing the amount in question to be eligible to receive an adjustment or credit.
Renewal charges will be based on fees in effect at the time of renewal. OS agrees to provide you prior notice of a fee increase via an email to the email associated with your account. Such increase shall be effective upon renewal. If you opted for auto-renewal at the time you subscribed, the paid subscription will automatically renew for fixed periods of time equal to your initial paid subscription purchase on the anniversary of your initial purchase. Prior to processing automatic renewal fees, OS will send you an email reminder. A paid subscription, however, will not be renewed automatically if you terminate such subscription in the manner and time described in Section 5 below.
You may cancel automatic renewal of your subscription by submitting a request at http://thescholr.com. Do this before your subscription expiration date (or before the specified billing date in the automatic renewal email notification) to avoid an automatic charge.
If renewal fees are not paid in a timely manner, or if we are unable to process your transaction using the credit card information provided, OS reserves the right to revoke access to your account. If you do not bring your balance current within thirty (30) days after we provide you with notification that your account is in arrears, OS reserves the right to terminate your subscription, cease hosting Your Site and delete your Submissions.
5. Paid Subscription Termination
You may terminate your paid subscription at any time by submitting a request at http://thescholr.com. You must terminate your paid subscription before its renewal date in order to avoid automatic renewal and a charge of the next period’s fees to your credit card. If you terminate your paid subscription, you will not be charged at the next renewal date. We will not charge a fee for terminating your paid subscription, and you will not receive a refund of any fees you have already paid.
6. Acceptable Use and Conduct/User Restrictions
As a condition of your access and use of the Site and the Services, you agree that you will use the Site and the Services in compliance with these Terms of Service and all applicable laws, including any laws regarding the transmission of technical data exported from your country of residence and all export controls and embargo restrictions under the laws of the United States.
You further agree that you shall not: (a) impersonate any individual or entity or misrepresent your affiliation with any other individual or entity; (b) use the Services in any manner with the intent to interrupt, damage, disable, overburden or impair the Services; (c) use the Services in violation of OS’ or any third party’s intellectual property or other proprietary or legal rights; (d) use the Services in violation of any applicable laws and/or to encourage illegal activities; (e) attempt (or encourage or support anyone else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Services or make any unauthorized use thereof; (f) access, tamper with, or use non-public areas of the Services, OS’ computer systems, or the technical delivery systems of OS’ providers or otherwise obtain or attempt to obtain any content, materials, or information through any means not intentionally made publicly available or provided for through the Services; (g) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures or otherwise attempt to gain unauthorized access to the Services through hacking, password mining, or any other means; (h) use or attempt to use any “spider”, “robot”, “bot”, “scraper”, “data miner”, or any other program, device or algorithm, process or methodology to access, acquire, copy, or monitor the Services (or portions thereof); (i) forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; (j) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Submission in such a manner as to interfere with or create an undue burden on the Services; or (k) use the Services in any way that might bring OS into disrepute.
Any commercial or promotional distribution, publishing, or exploitation of the Services is strictly prohibited unless you have received the express prior written permission from authorized personnel of OS, OS’ licensors or the otherwise applicable rights holders.
7. Changes to and Termination of the Services
We aim to continually improve the delivery and content of the Services and, as a result, OS will make changes to the Services from time to time. New features may be added, but we also OS may modify or discontinue (temporarily or permanently) any element of the Services, in whole or in part. If the changes to the Services, in our sole discretion, are material, we will notify you via an email to the email associated with your account.
There are some circumstances under which the Services may be terminated:
- In the event that we cannot obtain commercially-practical rates or terms from a service provider or supplier, we may cease to offer the Services. In such case, we will provide thirty days’ prior notice via email to the email associated with your account.
- We may also cease to offer the Services for any other reason, in which case we will provide you with thirty days’ prior notice via email to the email associated with your account. In such case, we will not charge you for Services after their termination, and will refund you any fees paid in advance for Services that have not been received.
OS reserves the right, at any time, to disable the Services temporarily for security or maintenance reasons.
9. Intellectual Property
The Services are protected by copyright, trademark and other US and foreign laws. These Terms of Service do not grant you any right, title or interest in the Services, OS’s trademarks, logos or other brand features or intellectual property, or others’ content in the Services. You agree not to change, translate or otherwise create derivative works of the Services.
OS welcomes your feedback, ideas or suggestions (“Feedback”), but you agree that OS may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated.
All content posted on OpenScholar must comply with U.S. copyright law. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. §512, as amended) (“DMCA”), if you believe in good faith that copyrighted work has been copied, adapted, reproduced, or exhibited on the Site in a manner that constitutes copyright infringement, you may submit written notification of the claimed infringing activity to our Designated Agent, Sheehan Phinney Bass & Green PA, 1000 Elm Street, P.O. Box 3701, Manchester, NH 03105-3701. To be effective, the notification of claimed infringement must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit OS to locate the material;
- Information reasonably sufficient to permit OS to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Please consult your legal adviser before submitting written notification, as the above-stated requirements may have changed. For further information about the DMCA, please visit the website of the U.S. Copyright Office at: http://www.copyright.gov/onlinesp/.
In appropriate circumstances, OS, at its sole discretion, may suspend or terminate any user’s access to the Site and/or the Services and/or take other action against users where infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OS AND ITS SERVICE PROVIDERS, SUPPLIERS AND LICENSORS, AND THEIR RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SITE OR THROUGH USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR SUBMISSIONS OR OTHER CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT OS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
11. Disclaimer of Warranties
YOUR ACCESS TO AND USE OF THE SITE AND THE SERVICES OR ANY CONTENT IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SITE AND THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, OS AND ITS SERVICE PROVIDERS, SUPPLIERS AND LICENSORS, AND THEIR RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS, HEREBY DISCLAIM ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, OR FITNESS FOR PARTICULAR PURPOSE OR NEED.
WE MAKE NO WARRANTY AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES OR ANY CONTENT THEREON. OS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES, OR ANY CONTENT MADE AVAILABLE THOROUGH THE SERVICES. YOU ALSO AGREE THAT OS HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED BY THE SERVICES. YOU SHOULD ENSURE THAT YOU HAVE SUITABLE BACKUPS OF ALL OF YOUR DATA. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OS OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold harmless OS, its directors, shareholders, officers, employees, agents, licensors and service providers from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising out of or resulting from your use of the Services, your Submissions, your breach of these Terms of Service and/or violation of any applicable laws. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defense.
13. Third Party Services and Links
The Services are integrated with various third party services, applications and sites (collectively, “Third Party Services”) that may make available to you their content and products, such as domain and email services, or marketplaces to connect customers and vendors. These Third Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. Without limiting the generality of the foregoing, your use of domain services is subject to the policies, including without limitation the dispute resolution policies, of the Internet Corporation for Assigned Names and Numbers (“ICANN”). OS does not control Third Party Services, and has no liability for Third Party Services or for any transaction you may enter into with them. You will be solely responsible for paying any fees and other costs associated with your use of Third Party Services. Your security when using Third Party Services is your responsibility. You also agree that OS may, at any time and in its sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. OS shall have no liability to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof (except where prohibited by law).
The Services may contain links to third-party websites or resources. These links are provided solely as a convenience to you. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by OS of such websites or resources or the content, products, or services available from such websites or resources. Nor do links to such websites and resources imply that OS is affiliated or associated with the linked-third-party site. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
14. Local Laws and Export Control
OS, through the Site, provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control and other U.S. agencies. You acknowledge and agree that the Site shall not be used, and none of the underlying information, software or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
OS and its licensors make no representation that the Services are appropriate or available for use in other locations outside the United States. If you use the Services from outside the United States, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations and intellectual property laws of other countries. Any diversion of the Services and/or any content obtained from or through the Services contrary to United States laws is prohibited.
15. Dispute Resolution
Before filing a claim against OS, you agree to try to resolve the dispute by first emailing firstname.lastname@example.org with a description of your claim. OS will try to resolve the dispute informally by following up via email, phone or other methods. If you and OS cannot resolve the dispute within thirty (30) days of OS’s receipt of your first email, you or OS may then bring a formal proceeding. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in Massachusetts, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. You may only resolve disputes with OS on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action.
These Terms of Service and any action related thereto will be governed by the laws of Massachusetts without regard to or application of its conflict of law provisions or your state or country of residence. If any provision contained herein is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions set forth herein, which shall remain in full force and effect. No waiver of any term hereunder of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term. These Terms of Service constitute the entire agreement between you and OS with respect to the use of the Site. Any changes to these Terms of Service must be made in writing, signed by an authorized representative of OS to be binding on OS. Notwithstanding the foregoing, OS, at its sole discretion and without notice, may change, modify, add or remove any portion of these Terms of Service, in whole or in part, at any time. Changes in these Terms of Service will be effective when posted. If the changes, in our sole discretion, are material, we will notify you via an email to the email associated with your account. Your continued use of the Site and/or the Services made available on or accessed through the Site after any changes to these Terms of Service are posted will be considered acceptance of those changes.
Except as otherwise provided in these Terms of Service, all notices should be sent by registered mail to OpenScholar, LLC, 200 Portland Street, Boston, MA, 02114.