THE JISC CONTENT PROCUREMENT COMPANY LIMITED (TRADING AS JISC COLLECTIONS), a company incorporated in England and Wales and limited by guarantee whose registered office is at Ground Floor, Brettenham House South, Lancaster Place, London WC2E 7EN ("JISC Collections")
OFFERS to you, the Sub-Licensee, the permission to access and use the Licensed Materials (as hereafter defined) on the terms and conditions as set out in this Sub-Licence Agreement. Upon completing the enclosed Acceptance of Sub-Licence Form A, and, if desired, the Acceptance of Sub-Licence Form B, your institution will become a non-exclusive Sub-Licensee of JISC Collections.
Acceptance shall be by delivery of a completed copy of the Acceptance of Sub-Licence Form(s) attached hereto to JISC Collections or a JISC Collections’ authorised agent who will accept delivery on behalf of JISC Collections. Acceptance shall be acceptance of all terms of this Sub-Licence and no variation or counter offer will be accepted by JISC Collections. In the event that no or partial compliance is made as to the manner or form described for acceptance, no sub-licence will be granted and this offer is deemed withdrawn.
WHEREASthe E-Books Collection (FE) is a cross searchable collection of e-books consisting of a Core Collection and Additional Available E-Books (as hereafter defined) as listed in Schedules 2 and 3; AND WHEREAS the E-Books Collection (FE) and sufficient Intellectual Property Rights (as hereafter defined) therein are owned by or licensed to Ebrary, a California company having Corporation Number C2074610 and having its registered offices at 318 Cambridge Avenue, Palo Alto, CA 94306-1505, US (“Ebrary”);
AND WHEREAS by an agreement between Ebrary and JISC Collections (the “E-Books Collection (FE) Licence Agreement"), JISC Collections is permitted to sub-license the access and use of the E-Books Collection (FE) to Sub-Licensees in accordance with the terms of this Sub-Licence;
JISC COLLECTIONS AND THE SUB-LICENSEE AGREE AS FOLLOWS:
means the form to be completed for access and use of the e-books from the Core Collection as attached hereto.
means the form to be completed for access and use of the e-books selected from the list of Additional Available E-Books as attached hereto.
means the e-books listed in Acceptance of Sub-Licence Form B. These e-books are only available on payment of the Charge(s) as set out in Acceptance of Sub-Licence Form B. Additional Available E-Books are only available to institutions that have signed Acceptance of Sub-License Form A .
means individuals who are authorised by the Sub-Licensee to access the Sub-Licensee’s information services whether on-site or off-site via Secure Authentication and who are affiliated to the Sub-Licensee as a current student (undergraduates and postgraduates), member of staff (whether on a permanent or temporary basis including retired members of staff and any teacher who teaches Authorised Users in the United Kingdom) or contractor of the Sub-Licensee. Persons who are not a current student, member of staff or a contractor of the Sub-Licensee, but who are permitted to access the Sub-Licensee’s information services from computer terminals or otherwise within the physical premises of the Sub-Licensee ["Walk-In Users"] are also deemed to be Authorised Users, only for the time they are within the physical premises of the Sub-Licensee. Walk-In Users may not be given means to access the Licensed Materials when they are not within the physical premises of the Sub-Licensee. For the avoidance of doubt, Walk-In Users may not be given access to the Licensed Materials by any wireless network provided by the Sub-Licensee unless such network is a Secure Network.
means the charge(s) as set out in either Acceptance of Sub-Licence Form A or/and Acceptance of Sub-Licence Form B where applicable.
means use of the Licensed Material for the purpose of monetary reward (whether by or for the Sub-Licensee or an Authorised User) by means of the sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Material.For the avoidance of doubt, neither the recovery of direct cost by the Sub-Licensee from Authorised Users, nor use by the Sub-Licensee or Authorised Users of the Licensed Material in the course of research funded by a commercial organisation is deemed to constitute Commercial Use.
means the e-books listed in Schedule 1.
means for the purpose of education, teaching, distance learning, private study and/or research.
means the date when the Sub-Licensee signs the applicable Acceptance of Sub-Licence Form.
means the Higher Education Funding Council for England.
"Intellectual Property Rights"
means patents, trademarks, trade names, design rights, copyright (including rights in computer software and moral rights), database rights, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world.
means the Core Collection and the e-books selected by the Sub-Licensee from the list of Additional Available E-Books in the Acceptance of Sub-Licence Form B.
means cataloguing records created by Ebrary contributing to the Licensed Materials which include but is not limited to metadata.
"Perpetual Access E-Books"
means those e-books that form part of the Licensed Materials and that have been licensed by JISC Collections in perpetuity.
means access to the Licensed Materials by Athens authentication or Security Assertion Mark-up Language (SAML) technology based authentication, Internet Protocol (“IP”) ranges or by another means of authentication agreed in writing between Ebrary and JISC Collections from time to time.
means a network which is only accessible by Secure Authentication.
means the sub-licensee whose details are set out in the Acceptance of Sub-Licence Form A and (if applicable) Acceptance of Sub-Licence Form B attached hereto and made a part hereof.
1.2 Headings contained in this Sub-Licence are for reference purposes only and shall not be deemed to be an indication of the meaning of the clause to which they relate.
1.3 Where the context so implies, words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and vice versa.
2. GRANT OF SUB-LICENCE
2.1 The Sub-Licensee agrees to pay the Charge(s) for the Core Collection as set out in Schedule 1 and the Acceptance of Sub-Licence Form A, in consideration of which JISC Collections agrees to grant to the Sub-Licensee:
2.1.1 a non-exclusive sub-licence to access and use the Core Collection, and to allow Authorised Users to access and use the Core Collection, for the license periods specified in Schedule 1 in accordance with this Sub-Licence by Secure Authentication for Educational Purposes only.
2.2 The Sub-Licensee agrees to pay the Charge(s) for the Additional Available E-Books as selected by the Sub-Licensee from the list of Additional Available E-Books set out in Schedule 2 and the Acceptance of Sub-Licence Form B, in consideration of which JISC Collections agrees to grant to the Sub-Licensee:
2.2.1 a non-exclusive sub-licence to access and use the Additional Available E-Books, and to allow Authorised Users to access and use such Additional Available E-Books, for the license periods specified in Schedule 2 and the Acceptance of Sub-License Form B, in accordance with this Sub-Licence by Secure Authentication for Educational Purposes only
2.3 . For the avoidance of doubt, the license related to an e-book that is withdrawn due to legal issues as more specifically described in Clause 11.3 shall be deemed revoked for such e-book only
3. USE OF THE LICENSED MATERIALS
3.1 The Sub-Licensee may for Educational Purposes only:
3.1.2 make such temporary local electronic copies of all or part of the Licensed Materials as are necessary to ensure efficient use by Authorised Users, provided that such use is subject to all the terms and conditions of this Sub-Licence;
3.1.3 allow Authorised Users to access the Licensed Materials by Secure Authentication in order to search, retrieve, display and view, and otherwise use portions thereof;
3.1.4 allow Authorised Users to electronically save parts of the Licensed Materials;
3.1.5 allow Authorised Users to print out copies of parts of the Licensed Materials;
3.1.6 provide single printed or electronic copies of parts of the Licensed Materials at the request of individual Authorised Users;
3.1.7 incorporate parts of the Licensed Materials for use by Authorised Users in printed and electronic course packs, study packs, resource lists and in any other material (including but not limited to multi-media works) to be used in the course of instruction and/or in virtual and managed environments (including but not limited to virtual learning environments, managed learning environments, virtual research environments and library environments) hosted on a Secure Network. Each item shall carry appropriate acknowledgement of the source, listing title and copyright owner. Course packs in non-electronic non-print perceptible form, such as Braille, may also be offered to Authorised Users;
3.1.8 allow Authorised Users to incorporate parts of the Licensed Materials in printed or electronic form in assignments and portfolios, theses and in dissertations (“the Academic Works”), including reproductions of the Academic Works for personal use and library deposit, if such use conforms to the customary and usual practice of the Sub-Licensee. Reproductions in printed or electronic form of Academic Works may be provided to sponsors of such Academic Works. Each item shall carry appropriate acknowledgement of the source, listing title and copyright owner;
3.1.9 display, download and print parts of the Licensed Materials for the purpose of promotion of the Licensed Materials, testing of the Licensed Materials, or for training Authorised Users;
3.1.10 publicly display or publicly perform parts of the Licensed Materials as part of a presentation at a seminar, conference, or workshop, or other such similar activity;
3.1.11 make such copies of training material and network such training material as may be required for the purpose of using the Licensed Materials in accordance with this Sub-Licence;
3.1.12 load and make use of the MARC Records in bespoke and commercially available library systems to manage library operations;
3.1.13 load and make use of the MARC Records in other projects such as union catalogue projects; and
3.1.14 amend the MARC Records as required.
3.2 This Sub-Licence shall be deemed to complement and extend the rights of the Institution and Authorised Users under the Copyright, Designs and Patents Act 1988 and the Copyright (Visually Impaired Persons) Act 2002 and nothing in this Sub-Licence shall constitute a waiver of any statutory rights held by the Institution and Authorised Users from time to time under these Acts or any amending legislation.
4.1.1 sell or resell the Licensed Materials unless the Sub-Licensee or an Authorised User has been granted prior written consent by Ebrary to do so;
4.1.2 remove, obscure or modify copyright notices, text acknowledging or other means of identification or disclaimers as they appear;
4.1.3 alter, adapt or modify the Licensed Materials, except to the extent necessary to make it perceptible on a computer screen, or as otherwise permitted in this Agreement. For the avoidance of doubt, no alteration of the words or their order is permitted;
4.1.4 display or distribute any part of the Licensed Materials on any electronic network, including without limitation the Internet and the World Wide Web, and any other distribution medium now in existence or hereinafter created, other than by a Secure Network; and
4.1.5 use all or any part of the Licensed Materials for any Commercial Use or for any purpose other than Educational Purposes.
4.2 This Clause 4 shall survive termination of this Sub-Licence for any reason.
5. RESPONSIBILITIES OF THE SUB-LICENSEE
5.1 The Sub-Licensee will:
5.1.1 issue passwords or other access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not divulge their passwords or other access information to any third party;
use all reasonable endeavors to ensure that only Authorised Users are permitted access to the Licensed Materials;
use all reasonable endeavors to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this Sub-Licence;
5.1.4 use all reasonable endeavors to monitor compliance with the terms of this Sub-Licence and notify Ebrary and JISC Collections immediately and provide full particulars on becoming aware of any of the following (a) any unauthorised access to or use of the Licensed Materials or unauthorised use of any of the Sub-Licensee's password(s); or (b) any breach by an Authorised User of the terms of this Sub-Licence. Upon becoming aware of any breach of the terms of this Sub-Licence the Sub-Licensee further agrees promptly to fully investigate and initiate disciplinary procedures in accordance with the Sub-Licensee's standard practice and use all reasonable effort to ensure that such activity ceases and to prevent any recurrence. Upon such notification Ebrary reserves the right to suspend or where appropriate in the sole discretion of Ebrary terminate access to Sub-Licensee that caused a material breach to occur provided that Ebrary notifies JISC Collections of such termination. Ebrary will restore access when the matter has been satisfactorily resolved
5.1.5 comply with all computer security procedures required by JISC Collections and/or a third party duly appointed by JISC Collections and take all reasonable steps to ensure the security of the Licensed Materials; and
5.1.6 provide lists of valid IP addresses and other relevant technical information to JISC Collections and update such information on a regular basis the frequency of which will be agreed by the parties from time to time.
6. RESPONSIBILITIES OF JISC COLLECTIONS
6.1 JISC Collections shall use all reasonable endeavors to ensure access and use of the Licensed Materials in accordance with the provisions as laid down in this Sub-Licence.
6.2 JISC Collections shall use all reasonable endeavors to cause customer support services to be provided to the Sub-Licensee and to Authorised Users.
6.3 JISC Collections will:
6.3.1 issue, or instruct an agent on its behalf to issue, an invoice to the Sub-Licensee upon receipt of an Acceptance of Sub-Licence Form B in respect of the Charge(s) due under that part of this Sub-Licence;
6.3.2 collect payments from the Sub-Licensee for the Additional Available E-Books selected in Acceptance of Sub-Licence Form B;
6.3.3 promptly pass the full contact details and technical information of the Sub-Licensee to Ebrary and to provide updates of such lists to Ebrary on a regular basis in the event of any change; and
6.3.4 pay the Charges received from the Sub-Licensee to Ebrary.
7. USAGE DATA
7.1 The parties shall co-operate in gathering any data on usage of the Licensed Materials that is available to them during the term of this Sub-Licence, and shall provide such data to each other upon request. Notwithstanding the foregoing, the parties shall neither assemble nor provide data from which an individual user could be identified.
8.1 The Sub-Licensee shall pay the Charges to JISC Collections for the Sub-Licence in the amount and upon terms set out in Acceptance of Sub-Licence Form A and/or Acceptance of Sub-Licence Form B where applicable.
9. TERM AND TERMINATION
9.1 The term of this Sub-Licence will commence upon the Effective Date and will remain in full force and effect until 31st August 2014, unless terminated earlier as provided for in this Clause 9 (except for the unexpired Licensed Materials purchased prior to the termination or expiry) by the Sub-Licensee). For the avoidance of doubt, the parties agree that the perpetual licence and rights granted by the Licensor to the Sub-Licensee in respect of the Perpetual Access E-Books in this Agreement are irrevocable and will survive any termination or repudiation of this Agreement (except in the event of a withdrawal under Clause 11.3).
9.2 Either party may terminate this Sub-Licence at any time on the material breach or repeated other breaches by the other of any obligation on its part under this Sub-Licence by serving a written notice on the other identifying the nature of the breach. The termination will become effective thirty (30) days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach.
9.3 This Sub-Licence will be treated as if terminated if the Ebrary E-Books Collection (FE) Licence Agreement between Ebrary and JISC Collections terminates until JISC Collections remedies the breach. JISC Collections will notify the Sub-Licensee of such termination and when it has remedied the breach. JISC Collections shall make reasonable endeavours not to cause the E-Books Collection (FE) Licence Agreement between Ebrary and JISC Collections to terminate.
9.4 Further, notwithstanding anything to the contrary herein, upon a material breach by the Sub-Licensee, on-line access to the Licensed Materials shall be terminated.
9.5 Upon expiry or termination of this Agreement, JISC Collections will use all reasonable endeavors to procure that Ebrary will at a nominal charge provide the Sub-Licensee with continuing online access, on Ebrary’s platform, to the Licensed Materials the Sub-Licensee has sub-licensed (but only for the duration of the applicable license periods). Continuing archival access and use is subject to the terms and conditions of use of this Agreement.
10. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS 10.1 Save as provided in 10.2, the Sub-Licensee acknowledges that the Intellectual Property Rights in the Licensed Materials are the sole and exclusive property of Ebrary or are duly licensed to Ebrary and that this Sub-Licence does not assign or transfer to the Sub-Licensee any right, title or interest therein except for the right to use the Licensed Materials in accordance with the terms and conditions of this Sub-Licence.
10.2 All database rights in the collection of Licensed Materials created by the Sub-Licensee, including any metadata, shall be the property of the Sub-Licensee. Notwithstanding the foregoing, JISC Collections and Ebrary are expressly permitted to select and/or arrange collections of MARC Records and Licensed Materials identical to those created by the Sub-Licensee.
11. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
11.1 The Sub-Licensee represents and warrants that it has sufficient authority and rights to enter into and perform its obligations under this Sub-Licence.
11.2 JISC Collections represents and warrants that it has the right to grant the Sub-Licence and that the use of the Licensed Materials by the Sub-Licensee and Authorised Users in accordance with the terms of this Sub-Licence shall not infringe the copyright of any third party. The foregoing shall not apply to improper usage of the Licensed Materials by the Sub-Licensee or Authorised Users. JISC Collections makes no representation or warranty, and expressly disclaims any liability with respect to the content of the Licensed 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.
11.3 The Sub-Licensee agrees to notify Ebrary and JISC Collections within 48 hours and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with any works contained in the Licensed Materials, or any law or court order requiring the withdrawal of such works (any of the foregoing, a “Legal Issue”). It is expressly agreed that upon such notification, or if Ebrary becomes aware of such a claim, law, or order from other sources, Ebrary may remove such work(s) from the Licensed Materials. At the request of Ebrary or the e-book publisher, the Sub-Licensee will make all reasonable efforts to remove such work(s) from any copies of the Licensed Materials maintained by the Sub-Licensee. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a material breach of this Sub-Licence. As to Licensed Materials that do not include dark archive rights, Ebrary may remove individual e-books if required to do so by the contributing publisher, provided however that (a) Ebrary must first make all reasonable endeavors to persuade the contributing publisher not to remove such titles, and (b) Ebrary will make all reasonable endeavors to provide a comparable replacement e-book.
11.4 Nothing in this Sub-Licence shall make the Sub-Licensee liable for breach of the terms of this Sub-Licence by any Authorised User provided that the Sub-Licensee did not cause, knowingly assist or condone the continuation of such breach after becoming aware of a an actual breach having occurred.
11.5 Subject to the above and to the extent permitted by law, JISC Collections shall not be liable to the Sub-Licensee for any loss or damage including any loss of profits, goodwill, contract or any indirect or consequential loss including loss or damage suffered by the Sub-Licensee as a result of an action brought by a third party.
11.6 Ebrary reserves the right to change the content, presentation, user facilities or availability of parts of the Licensed Materials and to make changes in any software used to deliver the Licensed Materials at their sole discretion. JISC Collections will notify the Sub-Licensee of any substantial change to the Licensed Materials.
11.7 Other than the express warranties stated in this Clause 11, the Licensed Materials is provided on an “as is” basis, and JISC Collections, Ebrary, and its respective suppliers disclaim any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. JISC Collections, Ebrary, and its respective suppliers further expressly disclaim any warranty or representation to Authorised Users, or to any third party. JISC Collections, Ebrary, and its respective suppliers accept no liability for loss suffered or incurred by the Sub-Licensee or Authorised Users as a result of their reliance on the Licensed Materials.
11.8 The Sub-Licensee represents to JISC Collections that its computer system through which the Licensed Materials will be used is configured, and procedures are in place, to prohibit access to the Licensed Materials by any person other than an Authorised User; that it shall inform Authorised Users about the conditions of use of the Licensed Materials; and that for so long as the Sub-Licensee has access to any Licensed Materials, the Sub-Licensee will continue to make all reasonable efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.
11.9 JISC Collections, Ebrary, and its respective suppliers and the Sub-Licensee do not seek to exclude liability under this Agreement for fraud or for personal injury or death caused by its negligence and the negligence of its employees, authorised sub-contractors and agents.