Jorum Institutional Licence

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JORUM USER LICENCE AGREEMENT
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DATED 2008

[INSTITUTION]

-and-

THE HIGHER EDUCATION FUNDING COUNCIL FOR ENGLAND

THE HIGHER EDUCATION FUNDING COUNCIL FOR ENGLAND ("HEFCE"), a body corporate established under The Further and Higher Education Act 1992 whose principal place of business is at Northavon House, Coldharbour Lane, Bristol BS16 1QD,

OFFERS to you, the Licensee, permission to access the JORUM Repository and use the material deposited in the JORUM Repository but only on the terms and conditions as set out in this Agreement.

Acceptance of this Agreement will be by delivery of a completed Jorum Repository Licence Agreement Form attached hereto either to JISC Collections ("JISC Collections") or to an authorised representative who will accept delivery on behalf of HEFCE. Acceptance shall be acceptance of all terms and conditions of this Agreement and no variation or counter offer will be accepted by HEFCE.

BETWEEN: THE HIGHER EDUCATION FUNDING COUNCIL FOR ENGLAND a body corporate established under The Further and Higher Education Act 1992 whose principal place of business is at Northavon House, Coldharbour Lane, Bristol BS16 1QD ("HEFCE").

AND: [INSTITUTION insert full contractual name] of [full address] ("Licensee").

RECITALS

WHEREAS the UK funding bodies are funding the development of a long term digital repository service, known as the JORUM Repository, within the JISC information environment for learning and teaching materials produced by the UK further and higher education community and other materials;

AND WHEREAS the UK funding bodies have appointed HEFCE to act on their behalf as a joint exercise of functions with, but not acting as agent, for the other funding bodies;

AND WHEREAS HEFCE has delegated certain duties and obligations relating to this Agreement to JISC Collections. JISC Collections will act as the point of contact and will oversee and co-ordinate the licensing process of this Agreement.

HEFCE AND THE LICENSEE HEREBY AGREE AS FOLLOWS:

1. DEFINITIONS

1.1 In this Agreement, the following terms shall have the following meanings:

"Aggregate"

means to use of any part or parts of the Licensed Material as part of a composite work or a collection of works.

"Annotate"

means to add notations and/or commentaries to any part or parts of the Licensed Material.

"Authorised Users"

means individuals who are affiliated to the Licensee as a member of staff (whether on a permanent, temporary, contract or visiting basis) and who have agreed on-line to the terms and conditions of use of materials found in the JORUM Repository.

"Commercial Use"

"DCELLS"

means use of the Licensed Material for the purpose of monetary reward 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 Licensee from Authorised Users, nor use by Authorised Users of the Licensed Material in the course of research funded by a commercial organisation is deemed to constitute Commercial Use.

means the Department for Children, Education, Lifelong Learning and Skills.

" DEL"

means the Department for Employment and Learning for Northern Ireland ..

"Educational Purposes"

means for the purpose of education, teaching, learning, private study and/or research.

"Effective Date"

means the date that the Licensee has clicked on the ACCEPT button below.

"Excerpt"

means to extract (replicate) unchanged part or parts of the Licensed Material for re-use into another work.

"Funding Body(ies)"

means singly any one of DCELLS, DEL, HEFCW, LSC, SFC and HEFCE (including in each case any successor body taking on any relevant function of any of these bodies) and in the plural these bodies collectively.

"HEFCW"

means the Higher Education Funding Council for Wales .

"Intellectual Property Rights"

means patents, trademarks, trade names, design rights, copyright, 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.

"JISC Collections"

means the JISC Content Procurement Company Limited which is a company limited by guarantee (registered number 05747339) with registered offices at Ground Floor, Brettenham House South, 5 Lancaster Place, London WC2E 7EN.

"JORUM Repository"

means the electronic repository of learning and teaching material produced, inter alia, by participants in projects funded by the Funding Bodies or by any other natural or legal person.

"Licensed Material"

means the material in the JORUM Repository.

"LSC"

means the Learning and Skills Council.

"Modify"

means to alter, add to, delete from, manipulate and or modify any part or parts of the Licensed Material and to adapt any part or parts or the whole of the Licensed Material in accordance with section 21 of the Copyright, Designs and Patents Act 1988.

"Modifications"

means alterations, additions to, deletion from, manipulations and/or modifications of any part or parts of the Licensed Material and adaptations of any part or parts or the whole of the Licensed Material in accordance with section 21 of the Copyright, Designs and Patents Act 1988.

"Secure Authentication"

means access to the Licensed Material by Security Assertion Mark-up Language (SAML) technology based authentication, Internet Protocol (“IP”) ranges or by a username and password or by another means of authentication.

"Secure Network"

means a network which is only accessible via Secure Authentication.

"SFC"

means the Scottish Funding Council.

1.2 Headings contained in this Agreement 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.

1.4 Any reference to a clause, schedule or appendix shall be deemed to refer to that clause, schedule or appendix of this Agreement.

2. GRANT OF LICENCE

2.1 In consideration of the representations and warranties under clause 9, HEFCE hereby grants the Licensee a non-exclusive licence to access the JORUM Repository and use the Licensed Material and to allow Authorised Users to access the JORUM Repository and use the Licensed Material in accordance with the terms and conditions as set out in this Agreement.

3. PERMITTED USES

3.1 Throughout the term of this Agreement the Licensee may allow Authorised Users for Educational Purposes only:

3.1.1 to access the JORUM Repository in order to search, retrieve, display and download Licensed Material;

3.1.2 to Excerpt, Annotate, Aggregate and Modify the Licensed Material;

3.1.3 to electronically save any part or parts of the Licensed Material and Modifications;

3.1.4 to print out copies of any part or parts of the Licensed Material and Modifications;

3.1.5 to incorporate any part or parts of the Licensed Material and Modifications in virtual learning environments, managed learning environments and in any material to be used in the course of instruction provided that by so doing the JORUM Repository will not be accessible to persons who are not Authorised Users. Course and study packs in non-electronic non-print perceptible form, such as Braille, may also be compiled;

3.1.6 to display, download, print any part or parts of the Licensed Material for the purpose of promotion of the Licensed Material, the JORUM Repository or for training other Authorised Users;

3.1.7 to publicly perform any part or parts of the Licensed Material and Modifications as part of a presentation at a seminar, conference, or workshop, or other such similar activity; and

3.1.8 to use the Licensed Material and Modifications for such other uses as may be conducive to the Educational Purposes.

3.2 Nothing in this Agreement shall constitute a waiver of any statutory right available to the Licensee and Authorised Users including, without limitation, the rights from time to time under the Copyright, Designs and Patents Act 1988 and the Copyright (Visually Impaired Persons) Act 2002 or any amending legislation.

4. RESTRICTIONS

4.1 Save as provided herein the Licensee and Authorised Users may not:-

4.1.1 sell or resell the Licensed Material and/or Modifications;

4.1.2 remove, obscure or modify copyright notices, text acknowledging or other means of identification or disclaimers as they may appear without prior written permission of HEFCE;

4.1.3 use all or any part of the Licensed Material for any Commercial Use or for any purpose other than Educational Purposes unless with the consent of HEFCE;

4.1.4 display or distribute any part of the Licensed Material 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.

4.2 This Clause shall survive termination of this Agreement for any reason.

5. RESPONSIBILITIES OF THE LICENSEE

5.1 The Licensee will:

5.1.1 require and make Authorised Users aware of the need to clearly acknowledge the authorship in the Licensed Material downloaded and used by them in the form as supplied by the JORUM Repository in all copies of such Licensed Material in such a manner and location as to give reasonable notice of any claims of authorship.

5.1.2 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;

5.1.3 use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Material and that such access is by Secure Authentication;

5.1.4 use all reasonable efforts to monitor compliance with the terms of this Agreement and notify JISC Collections immediately and provide full particulars on becoming aware of any of the following (a) any unauthorised use of any of the Licensee's password(s); or (b) any breach by an Authorised User of the terms of this Agreement. Upon becoming aware of any breach of the terms of this Agreement the Licensee further agrees promptly to fully investigate and initiate disciplinary procedures in accordance with Licensee's standard practice and use all reasonable effort to ensure that such activity ceases and to prevent any recurrence including where necessary by terminating access to the Licensed Material to such unauthorised user and/or such Authorised User.

6. RESPONSIBILITIES OF HEFCE

6.1 HEFCE shall use all reasonable efforts to cause user support to be provided to Authorised Users.

6.2 HEFCE shall use reasonable efforts to provide continuous availability of the JORUM Repository, subject to periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of data and downtime related to equipment, the failure of communications networks, or services outside of control of HEFCE. Scheduled downtime will be performed at a time to minimize inconvenience to Authorised Users.

6.3 HEFCE will not be liable in any way for any failure in, interruption to or degradation of access arrangements caused directly or indirectly by Licensee’s equipment or communications networks.

7. TERM AND TERMINATION

7.1 The term of this Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Clause 7, will remain in full force and effect for a period of 3 (three) years until the 31st July 2011.

7.2 Either party may terminate this Agreement at any time if the other party materially breaches or repeatedly breaches any of its obligations under this Agreement by serving a written notice on the defaulting party identifying the nature of the breach. The termination will become effective thirty days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach forthwith by written notice to the other party.

8. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

8.1 The Licensee acknowledges that all copyrights, patent rights, trademarks, database rights, trade secrets and other Intellectual Property Rights in the JORUM Repository and the Licensed Material are the property of HEFCE or duly licensed to HEFCE and that this Agreement does not assign or transfer to the Licensee any right, title or interest therein except for the right to access the JORUM Repository and use the Licensed Material in accordance with the terms and conditions of this Agreement.

9. REPRESENTATION AND WARRANTIES

9.1 The Licensee hereby represents and warrants that it has sufficient authority to enter into and perform its obligations under this Agreement.

9.2 HEFCE makes no representation or warranty, and expressly disclaims any liability with respect to the Licensed Material including, but not limited to, errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information. It is expressly agreed that any use by the Licensee and Authorised Users of the Licensed Material is at the Licensee’s sole risk.

9.3 The Licensed Material is provided on an “as is” basis, and HEFCE disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Material or any part thereof, including, without limitation, any and all implied warranties of title, quality, performance, merchantability or fitness for a particular purpose. HEFCE further expressly disclaims any warranty or representation to Authorised Users, or to any third party. HEFCE accepts no liability for loss suffered or incurred by the Licensee or Authorised Users as a result of their reliance on the Licensed Material.

9.4 The Licensee shall fully indemnify HEFCE against all direct damages, liabilities, claims, causes of action and all legal fees and any other costs incurred by HEFCE by reason of any default, act or omission of the Licensee or its Authorised Users connected with any infringement or alleged infringement (including but not limited to the defence of such alleged infringements) of any Intellectual Property Rights or other contravention of law (including but not limited to defamation and contempt of court) in connection with the subject matter of this Agreement, provided that: (1) HEFCE provides the Licensee with prompt notice of any claim or threat of claim; (2) HEFCE co-operates fully with the Licensee in the defence or settlement of such claim; and (3) the Licensee has sole and complete control over the defence or settlement of such claim.

9.5 Save as provided for in Clause 9.4, neither the Licensee nor HEFCE will be liable to the other or to depositors of material in the JORUM Repository in contract or negligence or otherwise for (i) any special, indirect, incidental, punitive or consequential damages (ii) loss of direct or indirect profits, business, contracts, revenue or anticipated savings or for any increased costs or expenses.

9.6 No party limits its liability for (i) death or personal injury to the extent it results from its negligence, or of its employees or agents in the course of their engagement; and (ii) its own fraud or that of its employees or agents in the course of their engagement.

9.7 The Licensee represents to HEFCE that (a) its computer system through which the Licensed Material will be used is configured, and procedures are in place, to prohibit access to the JORUM Repository by any person other than Authorised Users; (b) that it shall make best efforts to inform its staff and students about the terms and conditions of use of the Licensed Material incorporated by Authorised Users in virtual learning environments and managed learning environments; (c) and that during the term of this Agreement, the Licensee will continue to make all reasonable efforts to bar non-permitted access to the JORUM Repository; (d) that it will make best efforts to remove from its Secure Network any Licensed Material downloaded from the JORUM Repository, Modifications, Annotations, Aggregations, Excerpts made from that Licensed Material by Authorised Users, if so requested by HEFCE or representatives of HEFCE.

10. FORCE MAJEURE

10.1 Either party’s failure to perform any term or condition of this Agreement as result of circumstances beyond the control of the relevant party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities) "Force Majeure" shall not be deemed to be, or to give rise to, a breach of this Agreement.

10.2 If either party to this Agreement is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure and if such party gives written notice thereof to the other party specifying the matters constituting Force Majeure together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then the party in question shall be excused the performance or the punctual performance as the case may be as from the date of such notice for so long as such cause of prevention or delay shall continue.

11. ASSIGNMENT

11.1 Save as permitted for under this Agreement, neither this Agreement nor any of the rights and obligations under it may be sub-contracted or assigned by either party without obtaining the prior written consent of the other party. In any permitted assignment, the assignor shall procure and ensure that the assignee shall assume all rights and obligations of the assignor under this Agreement and agrees to be bound to all the terms of this Agreement. The parties hereby record their written consent to any assignment by HEFCE to a legal entity set up to perform the obligations and enjoy the benefits of HEFCE.

122. GOVERNING LAW AND DISPUTE RESOLUTION

12.1 This Agreement shall be governed by and construed in accordance with English law and the parties irrevocably agree that any dispute arising out of or in connection with this Licence will be subject to and within the jurisdiction of the English courts.

12.2 The parties agree to use best efforts to resolve disputes in an informal manner. Where the parties agree that a dispute arising out of or in connection with this Agreement would best be resolved by the decision of an expert, they will agree upon the nature of the expert required and together appoint a suitable expert by agreement. In default of agreement upon whom to appoint as a suitable expert, such expert shall upon the request of either party be appointed by the Chair for the time being of the Committee of Vice-Chancellors and Principals.

12.3 Any person to whom a reference is made under Clause 12.2 shall act as expert and not as an arbitrator and his decision (which shall be given by him in writing and shall state the reasons for his decision) shall be final and binding on the parties except in the case of manifest error or fraud.

12.4 Each party shall provide the expert with such information and documentation as he may reasonably require for the purposes of his decision.

12.5 The costs of the expert shall be borne by the parties in such proportions as the expert may determine to be fair and reasonable in all circumstances or, if no determination is made by the expert, by the parties in equal proportions.

13. NOTICES

13.1 All notices required to be given under this Agreement shall be given in writing in English and sent by electronic mail, fax or first class registered or recorded delivery to the relevant addressee to the address set out below, or to such other address as may be notified by either party to the other from time to time under this Agreement, and all such notices shall be deemed to have been received (a) 24 hours after successful transmission in the case of electronic mail or fax; (b) seven (7) days after the date of posting in the case of first class registered or recorded delivery:



If to HEFCE: Lorraine Estelle

CEO

JISC Collections

Brettenham House

5 Lancaster Place

London WC2E 7EN

Email: l.estelle@jisc.ac.uk



If to the Licensee: [insert address and contact details]

14. GENERAL

14.1 This Agreement constitute the entire agreement between the parties relating to the JORUM Repository and Licensed Material and supersede all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of both parties in writing.

14.2 The invalidity or unenforceability of any provision of this Licence shall not affect the continuation in force of the remainder of this Agreement.

14.3 The rights of the parties arising under this Agreement shall not be waived or varied except in writing. Any waiver of any of a party's rights under this Agreement or of any breach of this Agreement by the other party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by either party to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.

14.4 Save as provided for in clause 11.1, no person who is not a party to this Agreement is entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.