The Portico Archive is a “dark archive.” It is intended to preserve e-journals, e-books, and other digital content and provide insurance that such electronic content will continue to be available for access by Portico’s Eligible Institutions should it become unavailable from other sources and under further scenarios set forth herein.
By using the Portico service you agree to abide by the following Terms and Conditions of Use. These Terms and Conditions of Use may be subject to an agreement entered into between Portico and an Authorized User’s affiliated institution, such as a user’s university (“Agreement”), which in the event of any conflict shall prevail. If you have questions about your affiliated institution’s participation agreement with Portico, please contact your librarian.
- “Eligible Institution(s)” means the educational institutions, libraries and other organizations that are (i) licensed customers for Portico and the electronic service it offers or portions thereof (“Participating Institutions”) or (ii) are licensed customers for Publishers (defined below) and the Publisher Collections (defined below) they offer (“Publisher-Qualified Institutions”).
- “Authorized Users” means Individuals who (a) are affiliated with an Eligible Institution as students, faculty, or employees, or (b) are on-site users physically present and authorized to be on the Participating Institution’s premises (“Walk-In Users”), or individuals accessing Open Access Content (as defined below).
- “Portico Archive” means the collection of archival versions of scholarly materials that have been normalized, supplemented with metadata and otherwise prepared for archiving and migration, including but not limited to, ejournals and/or ebooks, or any portion thereof (collectively, the “Content”), as applicable. The Content is intended to preserve the intellectual content of the preserved materials, whether in the form of text, data, images, audio or video, while facilitating preservation (including migration to new file formats and technologies), verification and management of the content, but may not have the same formatting or look and feel as the published version. A list of the Content included in the Portico Archive and coverage information is available on the Portico website or upon request from Portico.
- “Publisher(s)” means Portico’s participating publishers and/or other rights holders
- “Publisher Collections” means collections of specific Content from Publishers preserved as part of the D-Collections service, including but not limited to, digitized historical collections or other digital collections preserved on behalf of participating Publishers.
Grant of License and Access
Portico hereby grants Eligible Institutions and their Authorized Users a nonexclusive, nontransferable, limited license (“License”) to use the Content in accordance with these terms and conditions and the Eligible Institution’s Agreement with Portico. There shall be no sublicensing, assignment, or any transfer of the License, and any attempt at such sublicensing, assignment or transfer is void. It is understood that the purpose of Portico is to provide effective preservation of the Portico Archive content and that access to the Content will be permitted only when and under the following conditions:
For Participating Institutions only:
a. Pre-trigger Event Period: Access to the Content shall be available to four designated staff members (“Designated Staff”) per campus at each Participating Institution via password-controlled access only for viewing bibliographic and preservation-related metadata, collection management decision support, 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. The Participating Institution and each designated staff agrees to use this access, or any copies of Archival Versions downloaded, saved or printed, only for verification or testing purposes, and not for distributing copies of the Content to patrons, for interlibrary loan, document delivery, or otherwise for any purpose other than verifying or testing the integrity of the Content.
For Publisher-Qualified Institutions only:
b. Publisher Collections: Please note that access to Publisher Collections is limited to Publisher-Qualified Institutions. A Publisher-Qualified Institution may receive access in accordance with these Terms and Conditions even if it does not have a direct contract with Portico. Access to Publisher Collection Content shall be subject to the same Trigger Events as stated in 2.1.c. below.
For all Eligible Institutions:
c. Trigger Event Access: Eligible Institutions and Authorized Users shall gain access to applicable Content for use in accordance with the Terms and Conditions set herein when specific conditions or “Trigger Events” occur which cause titles to no longer be available from the Publisher or any other source, such Trigger Events to be confirmed by Portico, such as a Publisher going out of business and there not being a successor. Trigger events include: (1) cessation of a Publisher’s operations ); (2) discontinuation of a title by a Publisher; (3) back issues or titles no longer offered by a Publisher; or (4) catastrophic and sustained failure of a Publisher’s business or delivery platform. Trigger events may also occur for “Open Access Content” which is Content made available by Portico to all individuals once triggered, 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. Each Trigger Event will occur after an appropriate period of time to be set by Portico and/or Publisher.
d. Post-Cancellation Access claim: Eligible Institutions may have entered into a license agreement with one or more Publishers relating to access to specific Content which included “post-cancellation access,” a policy of providing access to back titles, issues, or volumes to former purchasers or subscribers. Such Publishers may designate Portico as one means for providing such post-cancellation access. A list of such Publishers is available on the Portico website or upon request to Portico. Where Portico is permitted to provide post-cancellation access for a particular publication, the Eligible Institution may submit post-cancellation access claims by certifying, either electronically or in writing, that it was a purchaser or subscriber with respect to the electronic version of the applicable title(s), issue(s), or volume(s) of the publication to which it was seeking access, and if once Portico confirms Eligible Institution’s eligibility, Portico will promptly provide a copy of the certification to the Publisher for verification and will provide access to the requested Content if the Publisher has not notified Portico and Eligible Institution of an objection in writing within thirty (30) days.
e. Additional Content: 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 hereby grants Eligible Institutions and their Authorized Users a nonexclusive, nontransferable, limited license (“License”) to use the Content in accordance with these terms and conditions and the Eligible Institution’s Agreement with Portico. There shall be no sublicensing, assignment, or any transfer of the License, and any attempt at such sublicensing, assignment or transfer is void. It is understood that the purpose of Portico is to provide effective preservation of the Portico Archive content and that access to the Content will be permitted only when and under the following conditions:
Eligible Institutions and Authorized Users may access, search, view, reproduce, display, download, print, perform, and distribute applicable Content for which 2.1.b, c, d, or e, applies provided they have prior permission from Portico and the Publisher and abide by the restrictions in Section 4 and elsewhere in these Terms and Conditions of Use, for the following Permitted Uses:
a. research activities;
b. classroom or organizational instruction and related classroom or organizational activities;
c. student assignments;
d. 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;
e. 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
f. 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.
- The portions of Content that have been downloaded or printed out by an Authorized User may continue to be used in compliance with these Terms and Conditions even if such license should later terminate or expire.
- Eligible Institutions and Authorized Users may access, search, view, reproduce, display, download, print, perform, and distribute applicable Content for which 2.1.b, c, d, or e, applies provided they have prior permission from Portico and the Publisher and abide by the restrictions in Section 4 and elsewhere in these Terms and Conditions of Use, for the following Permitted Uses:
Eligible Institutions and Authorized Users may not:
a. modify, obscure, or remove any copyright notice or other attribution included in the Content;
b. for Eligible Institutions that gain access to the content by way of a post-cancellation access claim (2.1. d above), reproduce or distribute the Content in bulk, such as by including Content in course packs, electronic reserves, repositories, or organizational intranets;
c. use or authorize the use of the Content for commercial purposes or gains (not to include research whose end-use is commercial
in nature), including charging a fee-for-service for the use of Portico beyond reasonable printing or administrative costs;
d. engage in Interlibrary Loan, namely, use Content accessed after a Trigger Event for the purpose of fulfilling occasional requests from other libraries;
e. provide, transmit, and/or authorize access to the Content other than Authorized Users;
f. 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;
g. systematically print out or download Content to stock or replace print holdings;
h. 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;
i. access, use or tamper with any non-public areas of Portico, test or probe or for any purposes exploit any vulnerability of Portico;
j. 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;
k. Copy, 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;
l. reproduce or distribute Content in bulk;
m. Additional uses may be prohibited for Open Access Content, depending on the applicable license for the Open Access Content.
- Coursepacks/E-Reserves. Portico neither allows nor disallows the inclusion of Content accessed after a Trigger Event or through Publisher Collections (2.1.c and 2.1.b above) in e-reserves or course packs. Use of Content accessed through Post-Cancellation Access for e-reserves or course packs shall be subject to the terms of Eligible Institution’s agreement with the applicable Publisher. Eligible Institution agrees to indemnify and hold Portico and its Publishers harmless and assumes sole responsibility for any and all liability and costs incurred in connection with Eligible Institution’s creation and/or distribution of any e-reserve or course pack containing the Content.
- Publisher information is available via 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.
- Eligible Institutions and Authorized Users may not:
Intellectual Property Rights
- General 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 Publishers and Content are proprietary to Portico or the Publishers, subject to the rights of third parties. Eligible 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. The Publishers are third party beneficiaries to this License, and have the right to enforce this License directly. Copyright is not claimed as to any work of the United States government.
- Trademarks. Portico® and the Portico logo are trademarks of ITHAKA. Neither Portico nor Eligible Institution may use the other’s name or trademark(s) and Eligible 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 Eligible Institutions’ names and or the names of their libraries in brochures or other materials to identify Eligible Institutions as participants in Portico along with other participants, and (ii) Eligible 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.
- 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.
- Eligible Institution represents and warrants that any lists of Designated Staff and/or Authorized Users, IP addresses, passwords and other relevant information provided to Portico will be accurate and valid, and that Eligible Institution will use reasonable efforts to maintain sufficient security with respect to such IP addresses and/or passwords so that no one other than Designated Staff and/or Authorized Users, as applicable, will be able to access the Portico Archive. Portico reserves the right to assess additional fees and require additional license terms for users other than those whose use is expressly authorized by these Terms and Conditions of Use.
- Portico represents and warrants that to the best of its knowledge use of the Portico Archive by Designated Staff and/or other Authorized Users, as applicable, in accordance with the terms of the Terms and Conditions of Use shall not, under U.S. copyright law, infringe the copyright of any third party. The foregoing shall not apply, however, to modifications or Derivative Works of the Portico Archive created by Eligible Institution or by any third party, nor to improper usage of the Portico Archive by Designated Staff or Authorized Users. Portico makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Materials, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information. Notwithstanding the foregoing, Eligible Institution agrees to notify Portico of any infringement, libel, or other claim pertaining to any materials of which Eligible Institution becomes aware. Upon such notification or if Portico learns of such a claim from another source, Portico may suspend availability of such materials or remove such materials from the Portico Archive pending the resolution of such claim.
- OTHER THAN THE EXPRESS WARRANTIES STATED IN THIS Paragraph 6, THE PORTICO ARCHIVE IS PROVIDED ON AN “AS IS” BASIS, AND PORTICO DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN), RELATING TO THE PORTICO ARCHIVE OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, COMPATIBILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PORTICO 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. PORTICO FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO AUTHORIZED USERS, OR TO ANY THIRD PARTY.
- Portico shall not be liable for any loss, injury, claim, liability or damage of any kind resulting from the unavailability of the Portico Archive, interruption of the services provided hereunder, or arising out of or in connection with Eligible Institution’s use of the Archival Versions. If the Portico Archive fails to operate in conformance with the terms of the Terms and Conditions of Use, Eligible Institution shall immediately notify Portico, and Portico’s sole obligation shall be to repair the nonconformity identified by Eligible Institution. In no event shall Portico’s liability exceed the then-current fees paid to Portico by Eligible Institution. Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, even if advised of the possibility of a claim.
- Portico expressly disclaims all representations and warranties set forth in this Paragraph 6 to the extent invoked in connection with a claim based upon or arising out of usage in any country other than the United States. Access to the Portico Archive by Designated Staff or other Authorized Users outside of the United States may be terminated by Portico if warranted, in Portico’s sole opinion, by applicable laws or regulations.
Support and Security
- Responsibilities of Portico. To the extent access to Content has been granted under 2.1.b-e above, Portico shall use reasonable efforts to provide continuous availability of the accessed Content subject to periodic unavailability due to maintenance of the server(s), the installation or testing of software, 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, Eligible Institutions may, upon written request, (a) be granted its choice of a refund or a credit of a prorated portion of its Annual Portico Archive Support Payment for each 30-day period so affected or (b) terminate its Agreement by providing written notice to Portico.
- Support. Portico will provide the following support to assist Eligible Institution and Authorized Users in their use of the Portico Archive. Support will be provided at reasonable levels during the term of the Terms and Conditions of Use. Support will be available by email at firstname.lastname@example.org from 9:00am to 5:00pm EST, Monday through Friday, for feedback, problem-solving, or general questions. Initial support for Eligible Institutions may include assistance with establishing access to the Portico system, providing general information and training materials, and establishing participation in Portico’s email groups and/or listservs. Continuing support may include troubleshooting problems with access or use of Portico, updating IP addresses and other access-related information as needed, providing online help files and user documentation, providing regular updates regarding scheduled content updates, upgrades, and maintenance, and maintenance of email groups and/or listservs for discussion of Portico-related matters.
- 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 Eligible 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.
- Responsibilities of Eligible Institutions. Eligible 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. Eligible 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 Eligible 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 Eligible 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 Eligible Institution prior to any suspension or termination of access and to restore access promptly following successful resolution of the matter. Portico and Eligible Institution shall from time to time consult on the establishment of measures to prevent uses of the Portico Archive that are not permitted under these Terms and Conditions of Use, and to inform Designated Staff and Authorized Users as to the conditions under which Archival Versions are available and of the Terms and Conditions of Use.
- Hardware and Software. Eligible Institutions understand and agree that Internet browser software is required to access the Portico Archive and Eligible Institutions and/or Authorized Users are responsible for providing and maintaining any hardware and Internet access to provide access to the Portico Archive to Authorized Users. and any and all costs associated therewith. Eligible Institution shall inform Portico if it makes use of a proxy server to provide access to the Portico Archive, or if it becomes aware of a proxy server that is providing such access.
- Usage Data. The parties shall cooperate in gathering data on usage of the Portico Archive, and shall provide such data to each other upon request. Notwithstanding the foregoing, in keeping with Section 9 below, the parties shall not provide data from which an individual user could be identified, unless such disclosure is reasonably necessary for pursuing a claim or investigation concerning alleged violation(s) of the Terms and Conditions of Use or is in response to a subpoena, court order, or other legal proceeding.
Transfer of Portico Archive
In the event that Portico ceases to operate and no successor non-profit organization can be found to maintain the Portico Archive, Portico agrees to provide a copy of the Portico Archive to an appropriate not-for-profit institution and assign its rights hereunder to such institution.
Neither Portico nor Eligible Institutions nor 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 labor 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 Terms and Conditions of Use with the other by giving written notice to the other party.
- These Terms and Conditions of Use are, where applicable, subject to and incorporated by reference into Eligible Institutions’ Institutional Participation Agreements. In the event of any conflict between these Terms and Conditions of Use and the Institutional Participation Agreement applicable to an Eligible Institution and/or Authorized User, the Institutional Participation Agreement will prevail.
- These Terms and Conditions of Use will 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 will lie exclusively in the United States, excluding any such laws to the contrary.
- If you are a United States public educational or government institution, those portions of this Agreement which are invalid or unenforceable against you due to applicable state or federal law, shall be construed in a manner most consistent with applicable governing law.
- 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.
- The English language version of agreements with Portico shall be controlling over any other version.
- In the interest of managing the evolving needs of Eligible Institutions, Authorized Users, and Publishers, Portico reserves the right to modify these Terms and Conditions, or any aspect of Portico, at any time except it is Portico’s intention that such modifications shall not materially detract from the scope of Permitted Uses outlined herein. The most updated Terms and Conditions of Use will be posted on the Portico website, and Portico shall notify Eligible Institutions via email of material modifications. Subject to 11.1 above, a modification will become effective for an Eligible Institution 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, Portico shall make reasonable efforts to address any concerns or the Eligible Institution will have the right to terminate the Agreement on 30 (thirty) days written notice.
Last updated on March 7, 2019