| 1. |
DEFINITIONS
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In this Licence, the following terms shall have the following meanings:
| Authorised Users |
Current members of the faculty and other staff of the Licencee (whether on a permanent, temporary, contract or visiting basis) and individuals who are currently registered with the Licensee for bona fide courses of study organised by and operated by the Licensee at the Licencee’s institution, who are permitted to access the Secure Network from within the Library Premises or from such other places where Authorised Users work or study (including but not limited to Authorised Users’ offices and homes, halls of residence and student dormitories) who have been issued by the Licencee with a password or other authentication. For the avoidance of doubt, Authorised Users do not include members of the public who may register with the Licensee for remote access to online services made available by the Licensee.
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| Commercial Use |
Use for the purposes of monetary reward (whether by or for the Licensee or any Authorised User or any Patron) by means of sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Materials. For the avoidance of doubt, the recovery of direct costs by the Licensee from Patrons is not deemed to be Commercial Use.
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| Fee |
The Fee set out in Schedule 2 or in new Schedules to this Licence which may be agreed by the parties from time to time.
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| Library Premises |
The physical premises of the library or libraries operated by the Licensee, as specified in Schedule 3.
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| Licensed Materials |
The electronic material as set out in Schedule 2 or in new Schedules to this Licence that may be agreed by the parties from time to time.
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| Patrons |
Members of the public who are permitted to use the Licensee’s library or information service and permitted to access the Secure Network but only from computer terminals within the Library Premises.
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| Secure Network |
A network (whether a standalone network or a virtual network within the Internet) which is only accessible to Authorised Users approved by the Licensee whose identity is authenticated at the time of log-in and periodically thereafter consistent with current best practice, and whose conduct is subject to regulation by the Licensee, and to Patrons whose access is permitted only from computer terminals located within the Library Premises and whose conduct is subject to regulation by the Licensee.
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| Server |
The server or servers, either the Publisher’s server(s) or third party server(s) designated by the Publisher, on which the Licensed Materials are mounted and may be accessed.
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| 2. |
AGREEMENT
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| 2.1. |
The Publisher agrees to grant to the Licensee the non-exclusive and non-transferable right to give Authorised Users and Patrons access to the Licensed Materials via a Secure Network for the purposes of research, teaching, retrieving information and private study, subject to the terms and conditions of this Licence, and the Licensee agrees to pay the Fee.
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| 2.2. |
This Licence shall commence on the date set out in Schedule 1 to this Licence and automatically terminate at the end of the Subscription Period set out in Schedule 2, unless the parties have previously agreed to renew it. For the avoidance of doubt, there may be more than one Subscription Period each associated with a different set of Licensed Materials, as specified in Schedule 2 or in such new Schedules as may be added subsequently, and the terms of this Licence shall apply to each such set of Licensed Materials for the associated Subscription Period.
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| 3. |
USAGE RIGHTS
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| 3.1. |
The Licensee, subject to clause 4 below, may:
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| 3.1.1. |
Allow Authorised Users to have access to the Licensed Materials from the Server via the Secure Network.
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| 3.1.2. |
Allow Patrons to have access to the Licensed Materials from the Server via the Secure Network, but only from public work stations/terminals within the Library Premises. For the avoidance of doubt, remote access by Patrons to the Licensed Materials is strictly prohibited.
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| 3.1.3. |
Provide single printed or electronic copies of extracts from the Licensed Materials at the request of individual Authorised Users or Patrons.
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| 3.1.4. |
Display, download or print extracts of the Licensed Materials for the purpose of internal marketing or testing or for training Authorised Users or Patrons.
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| 3.2. |
Authorised Users and Patrons may in accordance with the copyright laws of England and subject to clause 4 below:
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| 3.2.1. |
Search, view, retrieve and display the Licensed Materials.
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| 3.2.2. |
Print off single copies of extracts from the Licensed Materials.
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| 3.2.3. |
Electronically save extracts from the Licensed Materials for personal use.
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| 4. |
PROHIBITED USES
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| 4.1. |
Neither the Licensee nor Authorised Users nor any Patron may:
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| 4.1.1. |
Remove or alter the Publisher’s copyright notices or other means of identification or disclaimers as they appear in the Licensed Materials.
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| 4.1.2. |
Systematically make print or electronic copies of multiple extracts of the Licensed Materials for any purpose.
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| 4.1.3. |
Mount or distribute any part of the Licensed Material on any electronic network, including without limitation the Internet and the World Wide Web, other than the Secure Network.
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| 4.2. |
The Publisher’s explicit written permission must be obtained in order to:
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| 4.2.1. |
Use all or any part of the Licensed Materials for any Commercial Use;
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| 4.2.2. |
Systematically distribute the whole or any part of the Licensed Materials to anyone other than Authorised Users.
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| 4.2.3. |
Publish, distribute or make available the Licensed Materials, works based on the Licensed Materials or works which combine them with any other material, other than as permitted in this Licence.
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| 4.2.4. |
Alter, abridge, adapt or modify the Licensed Materials, except to the extent necessary to make them perceptible on a computer screen to Authorised Users and Patrons. For the avoidance of doubt, no alteration of the words or their order is permitted.
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| 4.3. |
Notwithstanding the provisions of clauses 3.1 and 3.2, it is understood and agreed that neither the Licensee nor Authorised Users nor any Patron may provide, by electronic means, to a user at another library a copy of any part of the Licensed Materials for research or private study or otherwise.
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| 5. |
PUBLISHER’S UNDERTAKINGS
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| 5.1. |
The Publisher warrants to the Licensee that the Licensed Materials used as contemplated by this Licence do not infringe the copyright or any other proprietary or intellectual property rights of any person.
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| 5.2. |
The Publisher shall:
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| 5.2.1. |
Make the Licensed Materials available to the Licensee from the Server as specified in Schedule 2.
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| 5.2.2. |
The Publisher will notify the Licencee of any anticipated specification change applicable to the Licenced Materials.
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| 5.2.3. |
Use reasonable endeavours to ensure that the Server has adequate capacity and bandwidth to support the usage of the Licensee at a level commensurate with the standards of availability for information services of similar scope operating via the World Wide Web, as such standards evolve from time to time over the term of this Licence.
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| 5.2.4. |
Use reasonable endeavours to make the Licensed Materials available to the Licensee and to Authorised Users and to Patrons at all times and on a twenty-four hour basis, save for routine maintenance, and to restore access to the Licensed Materials as soon as possible in the event of an interruption or suspension of the service.
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| 5.3. |
The Publisher reserves the right at any time to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable.
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| 5.4. |
Except as expressly provided in this License, the Publisher makes no representations or warranties of any kind, express or implied, including, but not limited to, warranties of design, accuracy of the information contained in the Licensed Materials, merchantability or fitness of use for a particular purpose. The Licensed Materials are supplied ‘as is’.
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| 5.5. |
Under no circumstances shall the Publisher be liable to the Licensee or any other person, including but not limited to Authorised Users and Patrons, for any special, exemplary, incidental or consequential damages of any character arising out of the inability to use, or the use of, the Licensed Materials. Irrespective of the cause or form of action, the Publisher’s aggregate liability for any claims, losses, or damages arising out of any breach of this Licence shall in no circumstances exceed the Fee paid by Licensee to the Publisher under this Licence in respect of the Subscription Period during which such claim, loss or damage occurred. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. Regardless of the cause or form of action, the Licensee may bring no action arising from this Licence more than six (6) months after the cause of action arises.
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| 6. |
LICENSEE’S UNDERTAKINGS
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| 6.1. |
The Licensee shall:
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| 6.1.1. |
Use all reasonable endeavours to ensure that all Authorised Users and Patrons are appropriately notified of the importance of respecting the intellectual property rights in the Licensed Materials as specified in clauses 4.1 and 4.2.
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| 6.1.2. |
Use all reasonable endeavours to ensure that Authorised Users are made aware of and undertake to abide by the terms and conditions of this Licence and take steps to protect the Licensed Materials from unauthorised use or other breach of this Licence.
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| 6.1.3. |
Use all reasonable endeavours to monitor compliance and immediately upon becoming aware of any unauthorised use or other breach, inform the Publisher and take all reasonable and appropriate steps, including disciplinary action, both to ensure that such activity ceases and to prevent any recurrence.
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| 6.1.4. |
Issue passwords or other access information only to Authorised Users and use all reasonable endeavours to ensure that Authorised Users do not divulge their passwords or other access information to any third party.
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| 6.1.5. |
Provide the Publisher, within 30 days of the date of this Licence, with information sufficient to enable the Publisher to provide access to the Licensed Material in accordance with its obligation under clause 5.2. Should the Licensee make any significant change to such information, it will notify the Publisher not less than twenty (20) days before the change takes effect.
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| 6.1.6. |
Use all reasonable endeavours to ensure that only Authorised Users and Patrons are permitted access to the Licensed Materials.
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| 6.2. |
The Licensee shall, in consideration for the rights granted under this Licence, pay the Fee within thirty (30) days of receipt of invoice and, if applicable, within thirty (30) days of receipt of invoice relating to each subsequent Subscription Period and receipt of such payment shall be a condition of this License coming into effect. For the avoidance of doubt, the Fee shall be exclusive of any sales, use, value added or similar taxes and the Licensee shall be liable for any such taxes in addition to the Fee.
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| 6.3. |
The Licensee undertakes that if it breaches clause 3.1.2 it will reimburse the Publisher for any loss and or damage sustained by or incurred by the Publisher as a consequence of such breach. Notwithstanding this undertaking, the Publisher reserves the right to claim exemplary damages and legal costs from the Licensee in the event of wilful breach by the Licensee of clause 3.1.2.
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| 7. |
UNDERTAKINGS BY BOTH PARTIES
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| 7.1. |
Each party shall use its best endeavours to safeguard the intellectual property, confidential information and proprietary rights of the other party.
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| 8. |
TERM AND TERMINATION
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8.1. |
In addition to automatic termination (unless renewed) under clause 2.2, this Licence shall be terminated:
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8.1.1. |
If the Licensee defaults in making payment of the Fee as provided in this Licence and fails to remedy such default within thirty (30) days of notification in writing by the Publisher;
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8.1.2. |
Forthwith if the Licensee breaches clause 3.1.2 ;
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8.1.3. |
If either party commits a material or persistent breach of any term of this Licence other than clause 3.1.2 and fails to remedy the breach (if capable of remedy) within forty-five (45) days of notification in writing by the other party;
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8.1.4. |
If either party becomes insolvent or becomes subject to receivership, liquidation or similar external administration.
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8.2. |
On termination all rights and obligations of the parties automatically terminate except for clause 6.3 and 8.5 and obligations in respect of Licensed Materials to which access continues to be permitted.
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8.3. |
On termination of this Licence for cause, as specified in clause 8.1, the Licensee shall immediately cease to distribute or make available the Licensed Materials to Authorised Users and Patrons.
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8.4. |
On termination of this Licence by the Publisher for cause as specified in clause 8.1.2 the Publisher may remove without prior notice to the Licensee access to all the Licensed Materials, whether or not these have been included in the breach.
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8.5. |
On termination of this Licence by the Licensee for cause as specified in clause 8.1.3 the Publisher shall forthwith refund the proportion of the Fee that represents the paid but un-expired part of the Subscription Period.
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9. |
GENERAL
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9.1. |
This Licence constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter of this Licence, whether oral or written.
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9.2. |
Alterations to this Licence and to the Schedules to this Licence are only valid if they are recorded in writing and signed by both parties save that the details on Schedule 3 may be changed if confirmed by exchange of emails between the parties.
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9.3. |
This Licence may not be assigned by either party to any other person or organisation, nor may either party sub-contract any of its obligations, except as provided in this Licence in respect of and the management and operation of the Server, without the prior written consent of the other party, which consent shall not unreasonably be withheld.
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9.4. |
If rights in all or any part of the Licensed Materials are assigned to another publisher, the Publisher shall use its best endeavours to ensure that the terms and conditions of this Licence are maintained.
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9.5. |
Any notice to be served on either of the parties by the other shall be sent by post, facsimile, or email with receipt requested to the address of the addressee as set out in this Licence or in Schedule 1 thereto or to such other address as notified by either party to the other as its address for service of notices. Notice will be effective 5 days after posting if sent by prepaid letter post, at at the time of transmission if sent by facsimile, or at the time of receipt if sent by email.
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9.6. |
Neither party’s delay or failure to perform any provision of this Licence, as result of circumstances beyond its control (including, without limitation, war, strikes, floods, governmental restrictions, power, telecommunications or Internet failures, or damage to or destruction of any network facilities) shall be deemed to be, or to give rise to, a breach of this Licence.
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9.7. |
The invalidity or un-enforceability of any provision of this Licence shall not affect the continuation or enforceability of the remainder of this Licence.
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9.8. |
Either party’s waiver, or failure to require performance by the other, of any provision of this Licence will not affect its full right to require such performance at any subsequent time, or be taken or held to be a waiver of the provision itself.
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9.9. |
Where an institution requests the Publisher in writing to provide access to materials subject to the terms of this Licence and the Publisher accepts that request then that institution is deemed a Licensee and subject to the terms of this Licence whether or not the institution has signed a copy of the Licence.
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9.10. |
This Licence shall be governed by and construed in accordance with English law.
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