Askews and Holts Library Services Ltd

Newman University

-and-

Askews and Holts Library Services Ltd

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E-BOOKS COLLECTIONLICENCE AGREEMENT

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E-BOOKS COLLECTIONLICENCE AGREEMENT

THIS AGREEMENT is made

BETWEEN:Newman University, having its registered office atGenners Lane, Bartley Green, Birmingham B32 3NT("Institution").

ANDAskews and Holts Library Services Ltd, having its registered office at 1 Whittle Drive, Willingdon Drove, Eastbourne, East Sussex BN23 6NQ ("Supplier").

BACKGROUND

1. The Supplier collection is a collection of online ebooks, hosted on the VLeBook platform;

1. The Supplier collection and all intellectual property rights therein are owned by or duly licensed to the Supplier.

1. The Southern Universities Purchasing Consortium (SUPC) is an operating unit of Southern Universities Management Services, a Company limited by guarantee. Registered in England and Wales (No. 2732244). Registered Charity No. 1042175. Registered Office: University of Reading, London Road, Reading, RG1 5AQ. SUPC is not acting as an agent in the legal sense for participating organisations. SUPC award and manage Framework Agreements for the education sector.

3.1This Agreement is being led and supported by the following academic library consortia:

SUPC Library group

LUPC Library Group

Midland Universities Academic Libraries (MUAL)

North West Academic Libraries (NoWAL)

North East and Yorkshire Academic Libraries (NEYAL)

SUPC is acting as lead organisation on behalf of the following regional purchasing Consortia:

SUPC

NEUPC

NWUPC

LUPC

3.2All Agreements resulting from this tender should be made available and apply to all current and future members of the participating regional purchasing Consortia. They should also apply to any member of any other higher or further education regional purchasing consortium or any other higher education institution in the United Kingdom and the British Library with the express written permission of SUPC.

4. The terms of this Licence and the offer for The Supplier collection were negotiated and agreed under the Framework Agreement Reference 2013/03 between the Supplier and SUPC dated 1st August 2013

IT IS AGREED AS FOLLOWS

1.DEFINITIONS

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

"Access Fee"means the fee for access and use of the Licensed Material via the Supplier’s platform or via a third party appointed by the Supplier as set out in Schedule 1, the Offer.

"Authorised User"means an individual who is authorised by an authorised institution to have access to its information services (whether on-site or off-site) via Secure Authentication and who is

• a current student (including undergraduates and postgraduates)of that authorised institution;

• a member of staff (whether permanent or temporary including retired members of staff and any teacher who teaches Authorised Users registered in the United Kingdom);

• a contractor engaged by that authorised institution whose contract requires access to the Licensed Material;

• any teacher and/or librarian who at the request of the authorised institution provides support to current students of that institution;

• a Walk-In User

Walk-In Users are persons who are allowed by an authorised institution to access its information services from computer terminals or otherwise within the physical premises of an authorised institution. For the avoidance of doubt, Walk-In Users may be given access to the Licensed Material by any wireless Secure Network. Walk-In Users are not allowed off-site access to the Licensed Material.

“Commencement Date”means the date of purchase of ebooks on the interface

"Commercial Use"means use for the purpose of monetary reward (whether by or for the Institution or an Authorised User) by means of the sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Material or parts thereof.. For the avoidance of doubt, neither recovery of direct cost by the Institution from Authorised Users, nor use by the Institution or Authorised Users of the Licensed Material in the course of research funded by a commercial organisation is deemed to constitute Commercial Use.

"Educational Purposes"means use for the purpose of education, teaching, distance learning, private study and/or research.

"Fee"means the fee as set out in Schedule 1.

"SUPC"means the Southern Universities Purchasing Consortium an operating unit of Southern Universities Management Services, a Company limited by guarantee. Registered in England and Wales (No. 2732244). Registered Charity No. 1042175. Registered Office: University of Reading, Earley Gate, Whiteknights, Reading, RG6 6BZ

"Licensed Material"means the material listed in Schedule 2.

"MARC Records"means cataloguing records provided for the Institution purchasing the Licensed Materials, which include but are not limited to metadata

"Offer"means the offer agreed between SUPC and the Supplier. The Supplier collection is a collection as set out in Schedule 1.

"Perpetual Access e-books"means those e-books that form part of the Licensed Materials and for which the Institution has paid the Purchase Price detailed in Schedule 1.

"Secure Authentication"means access to the Licensed Material by UK Access Management Federation compliant technology, Internet Protocol (“IP”) ranges or by a username and password provided by the Institution or by another means of authentication agreed between the Supplier and the Institution.

"Secure Network"means a network which is only accessible to Authorised Users by Secure Authentication.

"Subscription Period" (if relevant)means the period from [insert date] until [insert date].

1.2Headings in this 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.

1.3Where 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 LICENCE

2.1The Supplier hereby grants to the Institution upon payment of the Fee(s) a non-exclusive licence:

a) to communicate the Licensed Material via a Secure Network, to make the Licensed Material available, to use and allow Authorised Users to access and use the Licensed Material all in accordance with the terms and conditions of this Agreement.

b) to access and use the Perpetual Access E-books, in perpetuity and to allow Authorised Users to access and use the Perpetual Access E-books on the terms and conditions as set out in this Licence.

2.2The Supplier hereby grants to the Institution upon payment of the Purchase Price and/or Access Fee or Subscription, a non-exclusive licence to access the Licensed Material on-line via the Supplier’s platform and use the Licensed Material in accordance with the terms and conditions of this Agreement

3.PERMITTED USES

3.1This Licence permits the Institution for Educational Purposes only to:

3.1.1provide Authorised Users with integrated access and an integrated author, title and keyword index to the Licensed Material and all other similar material licensed from other Suppliers;

3.1.2display, download and print parts of the Licensed Material for the purpose of promoting or testing the Licensed Material or for training Authorised Users;

3.1.3make and distribute copies of training material as may be required for the purpose of using the Licensed Material in accordance with this Licence;

3.1.4allow Authorised Users for Educational Purposes only to:

3.1.4.1 access the Licensed Material by Secure Authentication in order to search, retrieve, display and view the Licensed Material;

3.1.4.2electronically save parts of the Licensed Material including, where permitted, downloading temporarily to another device. Where such access is available, additional agreements may be required to supplement this Licence.

3.1.4.3print out single copies of parts of the Licensed Material;

3.1.4.4incorporate, where permitted parts of the Licensed Material in printed and electronic course packs to be used in the course of instruction and/or in virtual learning environments hosted on a Secure Network. Authorised Users must specify the title and copyright owner of the Licensed Material used in the course packs. Course packs in other formats, such as Braille, may also be offered to Authorised Users;

3.1.4.5incorporate parts of the Licensed Material in printed or electronic form in assignments and portfolios, theses and in dissertations (“the Academic Works”), and to make reproductions of the Academic Works for personal use and library deposit. Reproductions of the Academic Works can be provided to sponsors of those Academic Works. Authorised Users must specify the title and copyright owner of the Licensed Material used in the Academic Works;

3.1.4.6save and/or deposit in perpetuity parts of the Licensed Material in electronic repositories operated by the Licensee and/or by an Authorised User on a Secure Network. Access to and use of such repositories shall be limited to Authorised Users;

3.1.4.7publicly display or publicly perform parts of the Licensed Material as part of a presentation at a seminar, conference, or workshop, or other similar event;

3.2Where MARC records are supplied individually, or as a batch, this Licence permits the Institution to:

• load and make use of the MARC Records in bespoke and commercially available library systems to manage library operations;
• amend the MARC Records as required;
• load and make use of the MARC Records in other projects such as union catalogue projects

3.3This 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 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. Publisher permission must be sought for any additional use beyond the above and outside of current copyright legislation.

4.RESTRICTIONS

4.1Except where this Licence states otherwise, the Institution and Authorised Users may not:

4.1.1sell, resell, distribute, redistribute, publish or otherwise make the information contained in the Licensed Material available in any manner or on any media, unless the Supplier has given the Institution or an Authorised User permission in writing to do so;

4.1.2remove, obscure or alter copyright notices, acknowledgements or other means of identification or disclaimers;

4.1.3alter, abridge, translate, transform or adapt the Licensed Material or create any derivative works based upon the Licensed Material except to the extent necessary to make it perceptible on a computer screen .For the avoidance of doubt, no alteration of the words or their order is allowed;

4.1.4display or distribute any part of the Licensed Material on any electronic network, including the internet other than by a Secure Network;

4.1.5use all or any part of the Licensed Material for any Commercial Use or for any purpose other than Educational Purposes; or

4.1.6provide access and/or allow use of the Licensed Material by anyone other than Authorised Users.

4.2This Clause will continue to apply after termination of this Licence for any reason.

5.RESPONSIBILITIES OF THE SUPPLIER

5.1The Supplier agrees to:

5.1.1make the Licensed Material available to the Institution and Authorised Users from the start of the Subscription Period;

5.1.2use all reasonable efforts to make the Licensed Material available to the Institution and Authorised Users 24 hours a day (except when routine maintenance is carried out), and to restore access to the Licensed Material as soon as possible after any interruption or suspension of the service;

5.1.3provide technical support for eBook administrators during service hours (Mon-Fri 0800-2000 excluding bank holidays). Typically resolve 95% of queries immediately or within 24 hours of receipt;

5.1.4use all reasonable efforts to ensure that the relevant server or servers have adequate capacity and bandwidth to support the usage of the Institution;

5.1.5provide electronic product documentation to the Institution free of charge. The Supplier will allow copies of all documentation to be made and distributed by the Institution to Authorised Users provided it is either duplicated in full, or a proper ownership acknowledgement is included;

5.1.6implement the industry standards as set out in Schedule 3; and

5.1.7make available or enable a third party to make available to the Institution aggregated quarterly COUNTER-compliant usage data;.

5.2The Supplier reserves the right at any time to withdraw from the Licensed Material any item or part of an item:

• for which the Supplier no longer retains the right to publish and for which the Supplier has been unable to secure the provisions as set out in Clauses 8.6 or
• for which the Supplier has reasonable grounds to believe it infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable.

In the event of a withdrawal, the Supplier shall give written notice thereof to the Institution. In the rare event that a perpetual access ebook becomes unavailable after purchase the Supplier shall offer either a refund or credit of the purchase price, or the option to choose an alternative title up to the value of the pulled title’s invoice price. For Package Subscription products, if the withdrawn material represents more than ten per cent (10%) of the Licensed Material, the Supplier shall make a pro rata refund or credit of the subscription fee to the Institution. The value of this will take into account the amount of material withdrawn and the length of the Subscription Period remaining.

6.RESPONSIBILITIES OF THE INSTITUTION

6.1The Institution agrees to:

6.1.1give passwords or other access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not give their passwords or other access information to anyone else;

6.1.2provide lists of valid IP addresses to the Supplier and update those lists regularly as agreed by the parties from time to time;

6.1.3use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Material;

6.1.4use all reasonable efforts to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this Licence; and

6.1.5use all reasonable efforts to monitor compliance with the terms of this Licence and notify the Supplier immediately and provide full particulars on becoming aware of any of the following:

(a) any unauthorised access to or use of the Licensed Material or unauthorised use of any of Institution's password(s); or

(b) any breach by an Authorised User of the terms of this Licence.

6.2As soon as the Institution is aware of any breach of the terms of this Licence, the Institution further agrees promptly to fully investigate and initiate disciplinary procedures in accordance with the Institution's standard practice and use all reasonable effort to ensure that such activity ceases and to prevent any recurrence.

6.3The Institution undertakes to the Supplier that the computer system through which the Licensed Material will be used is configured, and procedures are in place, toprohibit access to the Licensed Material by any person other than an Authorised User, that it shall inform the Authorised Users about the conditions of use of the Licensed Material, and that during the term of this Licence, the Institutions will make best efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.

7.FEE

7.1The Institution will pay the Fee as set out in the Offer to the Supplier, for the rights granted to the Licensed Work in the amount and upon terms as set out in Schedule 1.The Institution will pay the Supplier the applicable Fee (s) in accordance with the Contract terms and, subject to the following sentence, will remain in full force and effect in perpetuity. For the avoidance of doubt,the parties agree that: (1) the Institution will be irrevocably entitled to retain the Perpetual Access E-books for which the Institution has paid the Fee(s) (as defined in Schedule 1) in perpetuity.

7.2The terms of payments to the Supplier are set out in Schedule 1 hereto.

8.TERM AND TERMINATION

8.1This Licence will start at the beginning of the Commencement Date or Subscription Period and, unless terminated earlier as provided for in this Clause 8, will remain in full force and effect permanently or until the end of the Subscription Period. For the avoidance of doubt,the parties agree that the perpetual licences and rights granted by the Supplier to the Institution and Authorised Users in respect of any 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 5.2).

8.2The Licensee may terminate this Agreement at any time without cause on the anniversary date as set out on the Subscription Order and Acceptance Form (and subsequently in the Order Confirmation Email (Institution) by giving the Supplier sixty days notice to that effect,

8.3Either party may terminate this Agreement at any time on the material breach or repeated other breaches by the other of any obligation on its part under this Agreement by serving a written notice on the other 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

8.4Upon termination of this Agreement by the Licensee due to a material breach or repeated other breaches by the Supplier, the Supplier will reimburse the Licensee a pro rata proportion of the Fee paid by the Licensee for the unexpired period of this Agreement.

8.5Upon termination of this Agreement, copies of parts of the Perpetual Access e-books may be retained. Such copies may be used after termination of this Agreement subject to the terms of Clauses 3 and 4 of this Agreement, which terms shall survive any termination of this Agreement.

8.6In the case of termination of this Agreement (except for a material breach by the Licensee of its obligations under this Licence), the Supplier will provide the Licensee and its Authorised Users with continuous access to and use of the full text of Perpetual Access e-books without any charge other than a nominal annual access fee, by continuing online access to the Perpetual Access e-books on the Supplier's server. For the avoidance of doubt, e-books that were only accessed on a rental or Pay-per-View basis will stop being available unless the institution acquires these e-books by paying any remaining purchase price;

8.7The Supplier shall maintain a digital archive of all the Perpetual Access ebooks purchased by the Institution. In the event that the Supplier is no longer able to provide access to the eBooks as contemplated under this agreement the Institution may be provided with copies of them, or be offered access to the ebooks via this archive.