Terms of Service

Recitals

1. Litmaps is a science technology company that provides the Litmaps Service to commercial and academic clients throughout the world.
2. Litmaps agrees to provide the Litmaps Service to you on the terms and conditions of this Agreement.

Interpretation

• Definitions: In this Agreement, unless the context otherwise requires:

  • “Business Day” means any day not being a Saturday, Sunday or statutory public holiday in Wellington, New Zealand.
  • “CGA” has the meaning given in clause 7.4.

  • “Confidential Information” of a party means all information which is, or may be, proprietary to that party, or commercially sensitive, and includes, but is not limited to, bibliographic information, computer data and personal data including names, addresses, personal or business affairs of persons associated with that party and information relating to the organisation, methods, administration, operation, business affairs, services provided by or to third parties, or financial or commercial arrangements of that party, or persons associated with the party and information of any nature, technical or otherwise, relating to any product or process in which the party or persons associated with the Services on behalf of the party are involved. It specifically excludes information which:

    1. was rightfully in the possession of the other party prior to the commencement of negotiations leading to this Agreement;
    2. is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of clause 10);
    3. is trivial or obvious; or
    4. is required to be disclosed at law or by a parliamentary, governmental or judicial process or convention.
  • “Data” means Confidential Information input into the Litmaps Service by you.
  • “Dispute Notice” has the meaning given in clause 11.2.
  • “Fee” means the cost for the provision of the Services under this Agreement, as detailed in clause 4 and Schedule A.
  • “Feedback” has the meaning given in clause 8.6.
  • “Force Majeure Event” has the meaning given in clause 9.
  • “Initial Term” has the meaning given in clause 2.1.
  • “Industry Best Practice” means that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a vendor in the New Zealand information technology industry with a similar level of resources and experience as Litmaps.

  • “Intellectual Property” means the following industrial and intellectual property rights in any jurisdiction, whether registered or unregistered:

    1. patents, trademarks, service marks, trade names, registered designs, design rights, copyright (including all copyright in any designs and computer software), source code, apps, API integrations, software data, managed and unmanaged solutions, and applications for any of the foregoing;
    2. the copyright in all drawings, plans, specifications, designs, policies, procedures or other documents relating to the Services including rights in computer software;
    3. knowledge connected with the Services including data, specifications and drawings, and technical information; and
    4. rights under any agreement or contracts granted to third parties to use any of the above.
  • “Litmaps Service” means the software application made available by Litmaps to you under this Agreement, which facilitates the discovery and exploration of the current state of academic literature on topics covered by reputable, peer-reviewed research through a number of functions, including dynamic literature maps, a powerful search function, and relevant recommendations as identified through citation networks.
  • “Open Source Software” means any software subject to a licence identified by the Open Source Initiative as an open source licence by virtue of meeting its open source definition.
  • “Privacy Act” has the meaning given in clause 10.4.
  • “Renewal Term” has the meaning given in clause 2.2.
  • “Services” mean the services provided by Litmaps to you under this Agreement, including the provision of the Litmaps Services.
  • “Taxes” mean any and all taxes (including GST, VAT, income tax and withholding taxes), duties and levies imposed by any competent authority in any jurisdiction.
  • “Term” means the Initial Term plus any Renewal Terms.

  • “Third Party Material” means any:

    1. Intellectual Property or other information belonging to a non-party to this Agreement, including that academic information used to provide the Litmaps Service; and
    2. Open Source Software.
  • “User” means you and any person who accesses or has accessed the Litmaps Service using its infrastructure.

• Construction: In this Agreement:

  1. headings are for convenience only and do not affect the interpretation of this Agreement;
  2. words importing the singular include the plural and vice versa and, where a term is defined, that definition applies to all grammatical forms of that term;
  3. a requirement that information be in writing is met where such information is contained in an electronic medium, in accordance with the Electronic Transactions Act 2002.
  4. including and similar words do not imply limitation;
  5. a reference to a person includes that person’s successors and permitted assigns;
  6. references to money are to New Zealand dollars and, unless otherwise stated, exclude GST;
  7. a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing them and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
  8. an obligation not to unreasonably withhold agreement, consent or approval (or any similar obligation) includes an obligation not to unreasonably condition or delay such agreement, consent or approval (or other similar obligation);
  9. no rule of construction applies to the disadvantage of a party because that party was responsible for the proposal or drafting of this Agreement or any part of it, including that of contra proferentem; and
  10. any provision of this Agreement which is invalid or unenforceable will be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this Agreement which are capable of separate enforcement without regard to the read down, or severed provision are and will continue to be valid and enforceable in accordance with their terms.

Term

• Initial Term: This Agreement commences on the initial payment date and, unless terminated earlier in accordance with its terms, will continue for an initial term of one (1) month or one (1) year depending on what you choose (Initial Term).

• Renewal Terms: This Agreement will automatically renew for additional terms of one (1) month or one (1) year (each a Renewal Term) following the expiry of the Initial Term or a given Renewal Term (as applicable), unless either party gives written notice to the other party of its intention that the Agreement be terminated at the end of the Initial Term or a given Renewal Term between ninety (90) and thirty (30) days prior to the expiry of the Initial Term or a given Renewal Term if a one (1) year term, or between one (1) and twenty eight (28) days prior to the expiry of the Initial Term or a given Renewal Term for a one (1) month term, as applicable.

License and Acceptable Use

• Licence: Litmaps hereby grants you a revocable, non-exclusive, non-transferable licence to access the Litmaps Service solely and exclusively for your use for the duration of the Term on the terms and conditions set out in this Agreement.
• Assumption of Responsibility: you assume full responsibility for the actions and omissions of yourself and will ensure that you comply with the terms of this Agreement, and in particular this clause 3. You agree to notify Litmaps in writing immediately if it becomes aware of any circumstances that suggest that any person may have unauthorised access to the Litmaps Service.

• Prohibited Activities: You may not procure, engage in or attempt, directly or indirectly, any of the following activities:

  1. reverse engineering the Litmaps Service;
  2. scraping any information (including Confidential Information) from the Litmaps Service;
  3. violating the Intellectual Property rights of any third party;
  4. compromising the Litmaps Service in any way, including by introducing or using any malware, spamware, spyware, adware, viruses or any other malicious programs, tools, software, code, file, script, command or otherwise that may damage, harm, deny, interfere with or expropriate any data from the Litmaps Service;
  5. any activity that is contrary to applicable law, policies or procedures; and
  6. using the Litmaps Service for any purpose other than that for which it was made available by Litmaps to you under this Agreement.
• User Accounts: Each User must have its own account on the Litmaps Service, and no User account may be used by more than one person.
• Continuous Improvement: Litmaps is committed to a programme of continuous improvement of the Litmaps Service. Therefore, from time to time the Litmaps Service may be unavailable due to the application of updates and the conducting of maintenance. Except in respect of emergency maintenance, Litmaps will endeavour to notify you of the time and duration of any maintenance windows.

Payment and Invoicing

• Fees: you must pay the Fees described in Schedule A of this Agreement monthly in arrears (or, where arranged with Litmaps, in advance via credit card).

• Invoicing: Invoices must be paid within fourteen (14) days from the date on which they are rendered. In the event that an invoice remains unpaid after the due date:

  1. Litmaps may suspend your access to the Litmaps Service;
  2. interest will become payable on the outstanding Fees at the rate of 2% per month; and
  3. Litmaps will be entitled to recover from you all debt recovery costs, including any legal costs at the full solicitor-client rate and all costs incurred by Litmaps using a debt recovery agency.

• Disputed Invoices: If you dispute the validity of any amount invoiced, you will immediately:

  1. pay such portion as is not in dispute; and
  2. provide written notice to Litmaps setting out the reasons why the disputed amount is disputed, which shall constitute a Dispute Notice in accordance with clause 11.2 of this Agreement.

  Failure by you to comply with this clause 4.3 within thirty (30) days of the due date of any invoice shall constitute an irrevocable waiver of any rights on the part of you to dispute that invoice.

• Taxes: Unless otherwise specified, all prices, quotes and estimates are exclusive of Taxes. You will pay Taxes in respect of all fees and charges payable by you under this Agreement.

• Fee Increases: The Fees are fixed for the duration of the Initial Term. Following its expiry, the Fees may be increased, provided that:

  1. Litmaps gives you not less than thirty (30) days’ written notice of any increase;
  2. the Fees are increased no more than once per twelve (12) month period; and
  3. any increase is both reasonable and competitive.

  Failure by you to comply with this clause 4.3 within thirty (30) days of the due date of any invoice shall constitute an irrevocable waiver of any rights on the part of you to dispute that invoice.

• Deductions: If you are required by law to make any deductions or withholdings, you must pay the required amount to the relevant authority, provide Litmaps with documentation evidencing the payment, and pay Litmaps any additional amounts necessary to ensure that the net amount Litmaps actually receives equals the full amount that Litmaps would have received, had no deduction or withholding been required.

Termination

• Termination: Notwithstanding clause 2, this Agreement may be terminated in any of the following ways:

  • both parties agree in writing to terminate the Agreement;
  • if you have not paid an invoice within fourteen (14) days of its becoming due, and Litmaps gives you fourteen (14) days’ notice of its intention to cancel this Agreement, upon the notice period expiring without payment of said invoice;

  • if either party is in breach of this Agreement and either:

    1. the breach is not capable of being remedied (which is deemed to include any breach by you of clause 3); or
    2. the party in breach does not remedy the breach within twenty (20) Business Days of receiving a notice from the other party stating the details of the breach and what is required to remedy it;
  • at the election of a party if the other party becomes insolvent, goes into liquidation or bankruptcy, has a receiver appointed in relation to its business assets, or enters into any arrangements with its creditors; or
  • pursuant to clause 9.3 by reason of a Force Majeure Event.
• Refunds: Except where this Agreement is terminated by you due to Litmaps’ irremediable or unremedied breach under clause 5.1(c), the Client will not receive a refund of any Fees paid upon termination of this Agreement. In the event that this Agreement is terminated prior to the expiry of the Initial Term or any Renewal Term, the sum of the Fees which would have been paid by you to Litmaps for the remainder of the Initial Term or Renewal Term if this Agreement had not been terminated will become immediately due and payable.
• Claims Unaffected: If this Agreement is terminated, all existing claims and remedies at law remain extant and may be pursued by either party.
• Post-Termination Obligations: Upon termination, you will be provided with an opportunity to download your Data.

Liability and Indemnity

• Indirect Damages: Neither party to this Agreement shall be liable to the other party for indirect, incidental, special or consequential loss or damages (which shall be deemed to include loss of revenue, contracts, use, business profits, business information, data, goodwill or other non-pecuniary loss; and loss caused by business interruption, wasted expenditure or diminution of value) arising out of or in connection with this Agreement or the provision of the Services, whether arising from negligence, breach of contract or otherwise.

• Direct Damages: Notwithstanding anything to the contrary in this Agreement, the maximum aggregate liability of Litmaps for all claims under or relating hereto, whether arising from negligence, breach of contract or otherwise, will be an amount equal to the lesser of:

  • the amount paid by you to Litmaps in the six (6) months immediately prior to the first such claim being made; and
  • $100,000.
• Indemnities: Each party agrees to defend, indemnify and save the other party, its affiliated and subsidiary corporations, its officers, directors, employees, agents, successors, shareholders and assigns harm from and against all liability, loss, expense, fines, penalties, or damages (including legal costs on a solicitor-client basis) to the extent that such claim arises out of or is in any way connected with the non-performance or breach of any obligation imposed on the indemnifying party by this Agreement or other general laws and obligations or by reason of and to the extent of the fraud, negligence or wilful misconduct of the indemnifying party or any agent or employee of the indemnifying party.
• Limitation on Indemnities: For the avoidance of doubt, the limitations and exclusions of liability outlined in this Agreement shall apply to the indemnity obligations of the parties (if any).
• Statute of Limitations: No action, regardless of form, arising out of any alleged breach of this Agreement or obligation hereunder may be brought by either party more than two (2) years after the cause of action has occurred.

Warranties and Disclaimers

• Authority: Each party warrants to the other that it has full power and authority to enter into and perform this Agreement in accordance with its terms
• Litmaps Warranty: Subject to the remainder of this clause 7, Litmaps warrants that the Services will be performed in accordance with Industry Best Practice, and that all personnel of Litmaps will be suitably qualified and appropriately skilled to carry out their duties and responsibilities in respect of this Agreement.

• Disclaimers: you acknowledge and accept that:

  • the Litmaps Service involves the making available of Third Party Material which Litmaps has not created and does not moderate. Therefore, Litmaps makes no representations and gives no warranties, guarantees or undertakings in respect of that Third Party Material, including in relation to:

    1. its accuracy, applicability and availability;
    2. the uses made of such material by you, its Users and any other person; and
    3. the incorporation of such material in the infrastructure or systems or you or any other person or its interaction therewith (including the embedding of dynamic literature maps);
  • while Litmaps will use commercially reasonable endeavours to maintain the availability of the Litmaps Service, it does not guarantee that the Litmaps Service will be available at all times;
  • data loss is an unavoidable risk of using any technology product or service, including the Litmaps Service, and therefore Litmaps will have no liability for the loss or corruption of Data. You are responsible for maintaining backup copies of Data, and is encouraged to do so; and
  • Litmaps will have no liability arising under or in connection with the misuse or unauthorised sharing of Data attributable to the acts or omissions of you or its Users.
• Non-Consumer Use: The Services provided under this Agreement are provided for the purposes of non-consumer use only. This means that laws designed to protect consumers acquiring goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, including (but not limited to) the Consumer Guarantees Act 1993 (CGA), are expressly excluded from this Agreement, to the fullest extent permitted by law. In the event the Services supplied in accordance with this Agreement are construed as being supplied to you as a “consumer” of services within the meaning of that term in the CGA, to the maximum extent permitted by law, Litmaps’ liability in respect of all claims will be, at its sole discretion, to either re-supply the Services or to refund the amount paid for any Services which were defective.
• Other Warranties Excluded: Each representation, condition, indemnification or warranty alleged to be made by Litmaps but not expressly contained in this Agreement is excluded unless it is unlawful to do so. Litmaps makes no representations and gives no warranties, guarantees or undertakings concerning its performance of the Services, except as expressly set out in this Agreement. All other warranties, express or implied, by statute or otherwise (including but not limited to the warranties of merchantability, fitness for a particular purpose, satisfactory quality and non-infringement of the intellectual property rights of third parties, except as set out in clause 8.4) are excluded from this Agreement, to the fullest extent permitted by law.

Intellectual Property

• Litmaps’ Intellectual Property: Litmaps owns and retains all rights, title and interest to all its Intellectual Property, which shall in no way be affected by this Agreement, except as licensed to you pursuant to clause 3.1.
• Your Intellectual Property: You own and retain all rights, title and interest in and to all your Intellectual Property which shall in no event be affected by this Agreement. Where you make a public workspace in the Litmaps Service, you agree to make the relevant Data available to the people with whom it decides to share it (with the understanding that open links are visible to any person with a copy of the applicable link).
• New Intellectual Property: Exclusive ownership and title to all Intellectual Property Rights created under or in connection with this Agreement shall be vested in Litmaps as and when they are created or arise.
• Litmaps Intellectual Property Warranty: Litmaps hereby warrants that to the best of its knowledge, save and except any components which are Third Party Material and your Data, the Litmaps Service does not infringe the intellectual property rights of any third party.
• Your Intellectual Property Warranty: You hereby warrant that you have all necessary rights and permissions to use and to upload the Data to the Litmaps Service, and that the Data will not infringe the Intellectual Property rights of any third party.
• Feedback: If you provide Litmaps with ideas, comments or suggestions relating to the Litmaps Service (Feedback), all Intellectual Property rights in that Feedback, and anything created as a result of that Feedback (including new materials enhancements, modifications or derivative works), are owned solely by Litmaps. Litmaps may use or disclose any Feedback for any purpose.

Force Majeure

• Force Majeure Events: Neither party will be liable for any act, omission, or failure to fulfil its obligations under this Agreement to the extent that such act, omission or failure arises from any cause reasonably beyond its control including acts of God, strikes, lockouts, riots, acts of war, terrorism, loss of mains power or network connectivity, pandemics, epidemics, localised disease outbreak, governmental action, fire, earthquake or other disasters (a “Force Majeure Event”).

• Notification and Mitigation: The party unable to fulfil its obligations under this clause 8 will, as soon as reasonably possible:

  • notify the other party in writing of the reasons for its failure to fulfil its obligations; and
  • use all reasonable endeavours to avoid or remove the cause of its failure to perform its obligations.
• Termination: If a party is unable to perform any of its obligations under this Agreement due to a Force Majeure Event for a period of at least thirty (30) days, either party may terminate this Agreement by giving thirty (30) days' written notice to the other. Termination of this Agreement under this clause will not prejudice the rights of either party against the other in respect of any matter or thing occurring under this Agreement before its termination.

Confidentiality and Privacy

• Non-Disclosure: Each party agree that, unless it has the prior written consent of the other, it will not use or disclose to any third party (other than for the purpose of performing its obligations under this Agreement or obtaining legal, financial or other professional advice) any information which is Confidential Information of the other party. Litmaps may use User metadata in order to provide the Litmaps Service to you and to create aggregate (non-personally identifiable) reports which allow Litmaps to enhance its services.
• Notification of Breach of Confidentiality: Each party will promptly notify the other of the loss of any items containing Confidential Information and of any circumstances of which it becomes aware concerning any unauthorised possession, disclosure or use of any Confidential Information of the other party.
• Officers: Litmaps undertakes to ensure that its employees, agents and sub-contractors who need to know the same are aware of and will be legally obliged to comply with the provisions of this clause in relation to the Confidential Information.
• Privacy: In performing its obligations under this Agreement, Litmaps will comply with the Privacy Act 2020 (Privacy Act) and will not do or omit to do anything within its reasonable control which would result in you being in breach thereof.

Dispute Resolution

• Negotiation: The parties agree to use reasonable efforts to resolve any dispute that may arise under this Agreement through good faith negotiations.
• Escalation: A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute (Dispute Notice). If within ten (10) Business Days of receipt of a Dispute Notice, the parties have not resolved the dispute, then it must be escalated to the parties’ chief executive officers or their equivalents.
• Mediation: Any dispute that has not been resolved in accordance with clause 11.2 shall be submitted to mediation. Either party may initiate mediation by giving written notice to the other party. If the parties cannot agree on a mediator within five (5) Business Days of the notice, the mediator will be selected by a Director of the Resolution Institute.
• Arbitration: Any dispute that has not been settled by mediation within thirty (30) days of commencement of such mediation shall be referred to arbitration to be conducted in Wellington, New Zealand, and shall be finally settled in accordance with the Arbitration Act 1996.
• Continuing Obligations: Except where an invoice remains unpaid after its due date, in the event of a dispute the parties shall continue to perform their obligations under the Agreement as far as possible until the dispute is resolved.

• Urgent Relief: Nothing in this clause 11 precludes:

  • either party from taking immediate steps to seek urgent equitable relief before a court of competent jurisdiction; and
  • Litmaps from referring any dispute to binding commercial arbitration under clause 11.4 where Litmaps reasonably believes that you are not using its best efforts to resolve the dispute or is otherwise not engaging in the dispute resolution process in good faith.

Notices

• Delivery Method: Any notice required to be given under or in connection with this Agreement may be personally delivered, sent by email, or sent by courier to the addresses set out below.

  For Litmaps:
  Litmap Limited
  Level 1, 77 Customhouse Quay
  Wellington, 6011
  New Zealand
  ‍axton@litmaps.co

• Deemed Delivery: A notice under this Agreement will be deemed to be received if:

  • delivered personally, when delivered;
  • sent by email, one (1) hour after the time on the Business Day it is delivered to the recipient’s inbox; and
  • posted, three (3) Business Days after posting or, in the case of international post, twenty (20) Business Days after posting; provided that any notice deemed received after 5 p.m. on a Business Day or on any day other than a Business Day will be deemed to have been received at 9 a.m. on the next Business Day.

General

• Governing Law and Jurisdiction: This Agreement shall be governed by the laws of New Zealand, and, subject to clause 3.1, the courts of New Zealand shall have exclusive jurisdiction to hear and determine all issues that may arise under or in relation to it. This clause 13.1 does not limit Litmaps’ right to seek orders in overseas courts for recovery of debts owed by you.
• Entire Agreement: There are no conditions, representations, warranties or other terms affecting the arrangements between the parties other than those referred to in this Agreement and this Agreement contains the whole of the contract between the parties and supersedes all prior agreements and understandings, if any, with respect to the transactions contemplated herein.
• Survival: Any clause of this Agreement that contemplates performance or observance after this Agreement has been terminated, including clauses 7 and 10, shall remain in full force and effect following such termination.

• Non-Solicitation: During the Term of this Agreement and for an additional period of six (6) months thereafter, each party will not:

  • induce any employee of the other to terminate his or her employment relationship with the other party; or
  • offer employment to any employee of the other party who has performed any services related to this Agreement without first obtaining the written consent of the other party,provided that nothing in this clause 13.4 shall prevent either party from employing any person who responds to a genuine advertisement placed by that party or who initiates contact with that party.
• Relationship of the Parties: Litmaps does not have any power, right or authority to bind you, or to assume or create any obligation or responsibility, expressed or implied, on behalf of your employer. Nothing contained in this Agreement shall be construed as constituting Litmaps and you as partners or joint venturers, or as creating the relationship of employer and employee, or principal and agent between them or otherwise create any other relationship than that of service provider and client as set forth in this Agreement.
• Further Assurances: Each party shall make all applications, execute all documents and do or procure all other acts and things necessary to implement and to carry out its obligations under this Agreement.
• Counterparts: This Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter into this Agreement by signing and emailing a counterpart copy to the other party.
• Cooperation and Good Faith: Each party agrees to cooperate and work with the other in good faith to enable the effective delivery of the Service by Litmaps. This may include you making available information, decisions and processes as may reasonably be required to facilitate you to implement and deliver the Services in accordance with this Agreement.
• Costs: Each party shall pay its own costs in respect of entry into and negotiation of this Agreement.
• Variations: Except as expressly stated elsewhere in this Agreement, any variation hereto must be in writing and signed by each party.
• Assignment:  You may not assign, novate, subcontract or transfer any right or obligation under this Agreement without the prior written consent of Litmaps. You remain liable for your obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
• Publicity: You agree that when making public announcements concerning the Services or their application, it will acknowledge that they were provided by Litmaps.

Schedule A

The Fees for individuals and companies are as follows:

The discounted Fees for universities and non-profit organisations are as follows: