[PRODUCT] LICENCE (based on the NESLi2, NESLI and PA/JISC
model licences for journals)
THIS LICENCE is made [date]
day of [date] 20[..]
AND [full contractual name]
of [full address] ("the Licensee")
WHEREAS the Publisher
holds the rights granted under this Licence;
AND WHEREAS the Licensee desires to use the rights and the Publisher desires to
grant to the Licensee the licence to use the rights for the fee;
AND WHEREAS the Further and Higher Education Funding Councils have appointed its
Joint Information Systems Committee ("JISC") to negotiate offers with
journal publishers on behalf of the UK further and higher education community;
AND WHEREAS the Publisher
and the Licensee have agreed to use this Licence as the model for any agreement
between them upon the offer negotiated by JISC or an agent appointed from time
to time by JISC, who at the date of this agreement is Content Complete Limited
in collaboration with the University of Manchester.
1. DEFINITIONS
1.1 In this Licence, the
following terms shall have the following meanings:
"Authorised Users" Current
members of the staff of the Licensee (whether on a permanent, temporary,
contract or visiting basis) and individuals who are currently studying at the
Licensee’s institution, who are permitted to access the Secure Network from
within the premises of the Licensee and from such other places where Authorised
Users work or study, including without limitation halls of residence and
lodgings and homes of Authorised Users, and who have been issued by the
Licensee with a password or other authentication.
"Commercial Use" Use for the purposes of monetary reward
(whether by or for the Licensee or an Authorised User) by means of the sale,
resale, loan, transfer, hire or other form of exploitation of the Licensed
Materials. For the avoidance of doubt,
neither recovery of direct costs by the Licensee from Authorised Users, nor use
by the Licensee or by an Authorised User of the Licensed Material in the course
of research funded by a commercial organisation, is deemed to constitute Commercial Use.
"Fee" The fee
set out in Schedule 5, or in new Schedules to this Licence which may be agreed
by the parties from time to time, which will be negotiated by JISC with the
Publisher.
"Library Premises" The physical premises of the Library or
Libraries operated by the Licensee, as specified in Schedule 2.
"Licensed Material" The material listed in Schedule 1, or in new
Schedules to this Licence which may be agreed by the parties from time to time.
"Secure Network" A network (whether a standalone network or a
virtual network within the Internet) which is only accessible to Authorised
Users and Walk-in Users approved by the Licensee whose identity is
authenticated at the time of login and periodically thereafter consistent with
current best practice, and whose conduct is subject to regulation by the
Licensee.
"Subscription Period" That period nominally covered by the volumes
and issues of the Licensed Material listed in Schedule 1, regardless of the
actual date of publication.
"Walk-in
Users" Persons who are not Authorised
Users but who are registered as permitted users of the Licensee’s library or
information service and who are permitted to access the Secure Network from
computer terminals within the Library Premises, as designated in Schedule
2. For the avoidance of doubt, the
payment of a fee in order to be registered as a Walk-in User is deemed not to
constitute Commercial Use under Clause 1.2 above.
2. AGREEMENT
2.1 The Publisher hereby agrees
to grant the Licensee a non-exclusive and non-transferable licence to access
and use the Licensed Material and to allow Authorised and Walk-in Users to
access and use the Licensed Material throughout the term of this Agreement via
a Secure Network for the purposes of research, teaching and private study and
the Licensee agrees to pay the Fee.
2.2.1 This Licence shall commence
at the beginning of the Subscription Period, and remains in effect until the
end of the Subscription Period, when the Licence shall automatically terminate
unless the parties have previously agreed to renew it. The Subscription Period
for individual journals shall be as set out in Schedule 1 or in new Schedules
to this Licence which may be added subsequently.
2.2.2 After termination of this Licence, the Publisher will provide the
Licensee and its Authorised and Walk-in Users with access to the full text of
the Licensed Material which was published and paid for within the Subscription
Period, either by continuing online access to the same material on the
Publisher's server or a third party server or by supplying an archival copy in
an electronic medium mutually agreed between the parties which will be
delivered to the Licensee or to a central archiving facility operated on behalf
of the UK HE community without charge. For the avoidance of doubt continuing
archival access (in whatever form) and use shall be without charge and is subject
to the terms and conditions of this Licence.
2.3 The right specified in sub-Clause 2.1 above is granted in all
countries of the world.
3. PERMITTED USES
3.1 The
Licensee may:
3.1.1 Make such back-up copies of the Licensed Material as are reasonably necessary - only applicable in the case of local mounting];
3.1.2
Make such local electronic copies of all or part of the Licensed Material
as are necessary to ensure efficient use by Authorised and Walk-in Users,
provided that such use is subject to all the terms and conditions of this
Agreement;
3.1.3
Allow Authorised Users to have
access to the Licensed Material, from the Publisher’s server or from another
server designated by the Publisher via a Secure Network;
3.1.4
Allow Walk-in Users to have access to the Licensed Material, from the
Publisher’s server or from another server designated by the Publisher at
computer terminals within the Library Premises;
3.1.5
Provide Authorised and Walk-in Users with integrated access and an
integrated article author, article title and keyword index to the Licensed
Material and all other similar material licensed from other publishers;
3.1.6
Provide single printed or electronic copies of single articles at the
request of individual Authorised Users;
3.1.7
Supply to an authorised user of another library (whether by post, fax or
secure electronic transmission, using Ariel or its equivalent, whereby the
electronic file is deleted immediately after printing), for the purposes of
research or private study, a single paper copy of an electronic original of an
individual document;
3.1.8 Display, download or print the Licensed Material for the purpose
of internal marketing or testing, or for training Authorised Users.
3.2 Authorised Users and Walk-in Users may:
3.2.1 Search, view, retrieve and
display the Licensed Material;
3.2.2 Electronically save parts
of the Licensed Material for personal use;
3.2.3 Print
off single copies of parts of the Licensed Material;
3.2.4 Distribute single copies of parts of the
Licensed Material in print or electronic form to other Authorised Users.
3.3 Only
Authorised Users may:
3.3.1 Incorporate parts of the Licensed Material in printed or
electronic course or study packs for the use of Authorised Users in the course
of instruction. Each such item shall
carry appropriate acknowledgement of the source, listing title and author of
extract, title and author of work, and publisher. Copies of such items shall be deleted by the Licensee when they
are no longer required for such purpose. Course packs in non-electronic non-print
perceptible form, such as audio or Braille, may also be offered to Authorised
Users who, in the reasonable opinion of the Licensee, are visually impaired.
3.4 This Licence shall be deemed
to complement and extend the rights of the Licensee under the Copyright Designs
and Patents Act 1988 and nothing in this Licence shall constitute a waiver of
any statutory rights held by the Licensee from time to time under that Act or
any amending legislation.
4.
PROHIBITED USES
4.1 Neither the Licensee nor Authorised or Walk-in Users may remove or
alter the authors’ names or the Publisher’s copyright notices or other means of
identification or disclaimers as they appear in the Licensed Material.
4.2 Save
as provided herein, neither the Licensee nor Authorised or Walk-in Users may
systematically make print or electronic copies of multiple extracts of the
Licensed Material.
4.3 Save as provided herein, neither the
Licensee nor Authorised or Walk-in Users may provide, by electronic means, to a
user at another library or elsewhere, a retained electronic copy of any part of
the Licensed Material.
4.4 Save as provided herein, neither the Licensee nor Authorised or
Walk-in Users may 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 a Secure Network.
4.5 The
Publisher’s explicit written permission must be obtained in order to:
4.5.1
Use the whole or any part of the Licensed Material for any Commercial
Use;
4.5.2
Systematically distribute the whole or part of the Licensed Material to
anyone other than Authorised Users;
4.5.3
Publish, distribute or make available the Licensed Material, works based
on the Licensed Material or works which combine it with any other material,
other than as permitted in this Licence;
4.5.4 Alter, abridge, adapt or modify the Licensed Material, except to
the extent necessary to make it perceptible on a computer screen, or as
otherwise permitted in this Licence, to Authorised and Walk-in Users. For the avoidance of doubt, no alteration of
the words or their order is permitted.
5. UNDERTAKINGS
5.1 The Publisher warrants to the
Licensee that it is the owner of the copyright in the Licensed Material or that
it is duly licensed to use the copyright material contained in the Licensed
Material and that the Licensed Material used as contemplated in this Licence
does not infringe any copyright or other proprietary or intellectual property
rights of any natural or legal person.
The Publisher shall indemnify and hold the Licensee harmless from and
against any loss, damage, cost, liability or expense (including reasonable
legal and professional fees) arising out of any legal action taken against the
Licensee claiming actual or alleged infringement of such rights. This indemnity
shall survive the termination of this
Licence for any reason. This
indemnity shall not apply if the Licensee has amended the Licensed Material in
any way not permitted by this Licence.
5.2 The Publisher shall:
5.2.1
Make the Licensed Material available to the Licensee either from the
Publisher’s server or the server of a third party in the format and time
schedule specified in Schedule 1. The Publisher shall notify the Licensee at
least sixty (60) days in advance of any anticipated specification change
applicable to the Licensed Material;
5.2.2
Make available the electronic copy of each journal
covered by this Licence, not later than the start of business hours on the day
of publication of the printed version.
In the event that for technical reasons this is not possible for any
particular journal, as a matter of course, such journal shall be identified at
the time of licensing, together with the reasons therefore;
5.2.3
Provide the Licensee within 30 days of commencement,
with information sufficient to enable access to the Licensed Material;
5.2.4
Use all reasonable endeavours to ensure that the relevant server or
servers referred to in clause 5.2.1 have 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;
5.2.5 Use all reasonable endeavours to make the Licensed Materials
available to the Licensee and to Authorised and Walk-in Users at all times and
on a twenty-four hour basis, save for routine maintenance, and to restore
access to the Licensed Material as soon as possible in the event of an
interruption or suspension of the service.
5.3 The Publisher reserves the right at any time to withdraw from the
Licensed Material 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. The
Publisher shall give written notice to the Licensee of such withdrawal. If the
withdrawn material represents more than ten per cent (10%) of a title in the
Licensed Material the Publisher shall make a pro rata refund of part of the
Fee, taking into account the amount of material withdrawn and the remaining
unexpired portion of the Subscription Period.
5.4
5.4.1 Upon termination of this Licence, the Publisher undertakes at
no charge either to provide or to make arrangements for a third party to
provide an archive of the Licensed Material.
5.4.2 The Publisher allows Authorised and Walk-in Users to access
and use such archive after termination of this Licence as further specified in
Clause 2.2.2.
5.5 The
Licensee shall:
5.5.1
Use all reasonable endeavours to ensure that all Authorised and Walk-in
Users are appropriately notified of the importance of respecting the
intellectual property rights in the Licensed Material and of the sanctions
which the Licensee imposes for failing to do so, as specified in Schedule 3;
5.5.2
Use all reasonable endeavours to ensure that Authorised and Walk-in Users
are made aware of and undertake to abide by the terms and conditions of this
Licence; use all reasonable endeavours to monitor compliance and immediately on
becoming aware of any unauthorised use or other breach, inform
the Publisher and take all reasonable steps, including appropriate disciplinary
action, both to ensure that such activity ceases and to prevent any recurrence;
5.5.3
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;
5.5.4
Keep full and up-to-date records of all Authorised
Users and their access details, and if appropriate provide the Publisher with
periodic lists of additions, deletions or other alterations to such records as
agreed between the parties from time to time;
5.5.5
Allow Walk-in Users access to the Licensed Materials
only from computer terminals within the Library Premises, as designated in
Schedule 2;
5.5.6
Use all reasonable endeavours to ensure that only Authorised and Walk-in
Users are permitted access to the Licensed Material and if appropriate notify
the Publisher within a reasonable period of any person ceasing to be an
Authorised User.
5.6 Nothing in this Licence shall make the Licensee liable for breach
of the terms of the Licence by any Authorised or Walk-in User provided that the
Licensee did not cause, knowingly assist or condone the continuation of such
breach after becoming aware of an actual breach having occurred.
5.7 The Licensee shall, in consideration for the rights granted under
this Licence, pay the Fee in accordance with clause 2.1 within 30 days of
signature and, if applicable, within 30 days of each subsequent renewal. 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.
5.8 The Publisher and the Licensee shall both be permitted or are
permitted to enable a third party on their behalf to collect and distribute
usage data in accordance with Schedule 4.
Such usage information shall be compiled in a manner consistent with the
applicable privacy laws, and the anonymity of individual users and the
confidentiality of their searches shall be fully protected. In the case that either party assigns its
rights to another party under Clause 7.1 herein, the other party may at its
discretion require the assignee either to keep such usage information
confidential or to destroy it.
5.9 Each party shall use its best endeavours to safeguard the
intellectual property, confidential information and proprietary rights of the
other party.
6. TERMINATION
6.1 In addition to the automatic termination (unless renewed) under
Clause 2, this Licence is terminated if either party gives written notice to
the other in the following circumstances:
6.1.1 The
Licensee defaults in making payment of the Fee in accordance with clause 2.1
and fails to remedy such default within thirty days of notification in writing
by the Publisher;
6.1.2
Either party commits a material or persistent breach of any term of this
Licence and fails to remedy the breach (if capable of remedy) within thirty
days of notification in writing by the other party;
6.1.3 Either party becomes insolvent or becomes subject to receivership,
liquidation or similar external administration.
6.2 On termination all rights and obligations of the parties
automatically terminate except for:
6.2.1 Those
specified in 3.4 and 5.1 and 5.9 above;
6.2.2 All obligations in respect of Licensed Material to which access
continues to be permitted.
6.3 On termination of this
Licence by the Licensee for cause, as specified in sub-Clauses 6.1.2 and 6.1.3
above, the Publisher shall forthwith repay a rateable proportion of the Fee as
represents the paid but unexpired part of the Subscription Period.
7. GENERAL
7.1
7.1.1 This Licence may not be assigned by either party to any other
person or organisation, without the prior written consent of the
other party, which consent shall not unreasonably be withheld.
7.1.2 If rights in all or any part of the Licensed Material are
assigned to another publisher, the Publisher shall use its best endeavours to
ensure that the terms and conditions of this Licence are maintained.
7.2 Alterations to this Licence and to the Schedules to this Licence
(which may be altered separately from the body of this Licence without
affecting the validity of the Licence as a whole) are only valid if they are
recorded in writing and signed by both parties.
7.3 Any notices to be served on
either of the parties by the other shall be sent by prepaid recorded delivery
or registered post to the address of the addressee as set out in this Licence
or to such other address as notified by either party to the other as its
address for the service of notices and all such notices shall be deemed to have
been received within 14 days of posting.
7.4 Either party’s failure to perform any term or condition of this
Agreement, 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 not be deemed to be, or to give rise to, a breach of
this Agreement.
SCHEDULE 1 – LICENSED
MATERIAL
A Schedule dated [
date ] to the Licence dated [date] between [Publisher] and [Licensee].
[List of Licensed Material,
initial Subscription Period for each item, format of each item, delivery
schedule (if applicable) for each item.]
SCHEDULE 2 –
LICENSEE’S LIBRARY PREMISES
A Schedule dated [
date ] to the Licence dated [date] between [Publisher] and [Licensee].
[List of addresses of the Licensee’s Library Premises.]
SCHEDULE 3 –
LICENSEE’S COPYRIGHT ENFORCEMENT POLICY
[List of all
documents evidencing the policy, with attached copies.]
SCHEDULE 4 - USAGE DATA
For provision to the Joint Information Systems Committee of the Further
and Higher Education Funding Councils of England, Scotland, Wales and Northern
Ireland:
Data on the usage by further and higher education institutions of each
journal title,
showing for each title:
- the participating publisher;
- the participating further or
higher education institution; and
- the numbers of hits on tables
of contents, abstracts and full texts.
For provision to each participating further or higher education
institution:
Data on the usage by that further or higher education institution of each
journal title,
showing for each title:
- the participating publisher;
and
- the numbers of hits on tables
on contents, abstracts and full texts for
each volume of each title and
for each volume of each title per month.
SCHEDULE 5 - FEE
A Schedule dated [
date ] to the Licence dated [date] between [Publisher] and [Licensee].
[Include here details of the
offer plus final fee to be paid by the Licensee.]
AS WITNESS the hands of the parties the day and year below first
written:-
For the Publisher Date
Name (in block
capitals)
Title Signature
For the Licensee Date
Name (in block
capitals)
Title Signature