Background
The Australian government has declared the Copyright Agency as the collecting society to administer the Educational Statutory Licence. The Licensee administers an educational institution(s) that relies on the Educational Statutory Licence and the Disability Provisions to copy and communicate Works for its educational purposes.
Copyright Agency’s system known as FLEX, is an online repository of Works and a workflow application, to assist educational institutions and academics efficiently access and use Works in reliance on the Educational Statutory Licence and the Disability Provisions.
1. Use of FLEX
1.1 Copyright Agency grants the Licensee a revocable, non-exclusive, non-transferable, limited licence to use the Software solely in accordance with these Terms of Use.
1.2 The Licensee may only store copies of Works on FLEX subject to and in accordance with the Educational Statutory Licence, its remuneration agreement with Copyright Agency, the Disability Provisions and these Terms of Use.
2. Rights and Obligations
2.1 Copyright Agency will use its best endeavours to ensure that FLEX operates correctly however it is agreed and acknowledged by Copyright Agency and the Licensee that:
a. Copyright Agency makes no guarantee, representation or warranty that FLEX is or will be up to date, free from errors or omissions, always available or uninterrupted, secure or free from bugs or viruses or that the content and data within FLEX is or will be recoverable from backups;
b. Copyright Agency reserves the right to limit or suspend FLEX and/or any service to which it connects (in whole or in part) at any time with or without notice and without liability;
c. FLEX is offered on an “as is” basis and Copyright Agency does not guarantee, represent or warrant that FLEX will be fit for any particular purpose or that FLEX and/or the use of any content or data accessible through FLEX will meet the Licensee’s requirements or that FLEX or such content and data will be compatible and/or interoperable with the Licensee’s own hardware and software systems, internet connection and network functionality; and
d. Copyright Agency is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Licensee acknowledges that FLEX may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2.2 Copyright Agency warrants that it has and will maintain all necessary licences, consents and permissions necessary for the performance of its obligations under these Terms.
2.3 Copyright Agency reserves the right, at its sole discretion, to modify, add to or replace any element of FLEX at any time with or without notice and without liability. Although Copyright Agency makes no commitment about any notice period, it aims to notify the Licensee in advance of such change in specifications.
2.4 The Licensee shall:
a. respect the intellectual property rights in the Works available via FLEX’s repository, including but not limited to only using the Works in reliance on the Educational Statutory Licence or the Disability Provisions and not removing any attached digital rights management of any Work.
b. seek to protect the security and integrity of FLEX including by ensuring that passwords and other login details for FLEX are maintained securely;
c. provide Copyright Agency with all reasonable co-operation as Copyright Agency may request and all reasonable access to such information as may be required by Copyright Agency including security access information and configuration services in order to enable Copyright Agency to make FLEX available;
d. comply with all applicable laws and regulations with respect to its activities in relation to FLEX;
e. carry out all Licensee responsibilities set out in these Terms of Use in a timely and efficient manner;
f. ensure that its Administrators and End Users are notified of these Terms of Use and require all Administrators and End Users to only use FLEX in compliance with them; and
g. be solely responsible for procuring and maintaining its own hardware and software systems, internet connection and network functionality necessary to connect with and use FLEX.
3. Document delivery services
3.1 The Licensee is responsible for any costs incurred by it in relation to any 3rd party document delivery services in connection with its use of FLEX. For the avoidance of doubt this includes the British Library’s scanning service, EHESS, that is available in the FLEX workflow as well as any other similar services introduced in the future.
4. Intellectual Property
4.1 The Licensee acknowledges and agrees that Copyright Agency’s members own all intellectual property rights in the Works made available via FLEX’s repository.
4.2 The Licensee acknowledges and agrees that Copyright Agency and/or its licensors or development partners own all intellectual property in FLEX including all software, features, developments, adaptations, amendments, additions, derivative works and customisations designed, created, implemented or applied by Copyright Agency in respect of FLEX whether or not at the request of the Licensee or jointly with the Licensee. Except as expressly stated herein, these Terms of Use do not grant the Licensee any rights to such intellectual property rights, or any other rights or licences in respect of FLEX.
4.3 Except as may otherwise be permitted by these Terms of Use or applicable law, the Licensee shall not:
a. sell, resell, sublicense, lease, rent, hire, loan or transfer the Software or redistribute it to any third party;
b. remove, obscure or modify copyright notices, disclaimers, means of identification or other text appearing in and pertaining to either the Works or the Software;
c. make copies of the Software;
d. use the Software except in accordance with the documentation or instructions provided or published by Copyright Agency; or
e. attempt to use the Software in excess of the rights permitted hereunder.
5. Information and Privacy
5.1 The Licensee shall own all right, title and interest in their Licensee Data subject to a grant of such rights in their Licensee Data to Copyright Agency as is reasonably necessary for Copyright Agency to provide FLEX in accordance with these Terms of Use. The Licensee shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of their Licensee Data.
5.2 The parties agree that Copyright Agency is permitted to use bibliographic, enrolment and other usage information supplied to Copyright Agency by the Licensee in connection with its use of FLEX in its distributions of licence fees to members.
5.3 Copyright Agency and the Licensee shall each comply with all applicable data protection and privacy laws in relation to the provision and use of FLEX.
6. Limitations of liability
6.1 Neither party shall in any circumstances be liable whether in tort, contract, misrepresentation (whether innocent or negligent) or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of use; loss or corruption of data or information or any special, indirect, consequential, or pure economic loss, costs, damages, charges or expenses.
7. Termination
7.1 These Terms of Use shall commence upon acceptance of them by the Licensee via FLEX.
7.2 Should either party commit any material breach of any of its obligations under these Terms of Use and remain in breach fourteen (14) days after receiving written notice from the other party to remedy the same, the latter may by written notice to that effect delivered to the former forthwith:
a. terminate these Terms of Use; or
b. suspend the operation of these Terms of Use and access to or use of FLEX until the party not in breach shall be reasonably satisfied the breaches will not recur.
7.3 Copyright Agency may decide to cease providing FLEX to its licensees generally at any time without liability but Copyright Agency will give at least three (3) months’ notice before discontinuing FLEX or transferring its operation to a third party.
7.4 The Licensee may terminate its use of FLEX at any time by giving Copyright Agency at least three (3) months’ notice in writing.
7.5 If for any reason the educational institution administered by the Licensee ceases to be a licensee under the Educational Statutory Licence Copyright Agency may terminate these Terms of Use and the Licensee’s right to access and use FLEX by giving written notice to the Licensee. The Licensee will have 14 days from the date of the notice of termination to remove any documents it has uploaded to FLEX other than those copied by it under the Educational Statutory Licence.
8. Changing this Agreement
8.1 These Terms of Use embody all the terms agreed between the parties and no oral representations, warranties or promises shall be implied as terms hereof. These Terms of Use may be varied by Copyright Agency by written notice to the Licensee but Copyright Agency.
9. Governing Law
9.1 These Terms of Use shall be governed by and construed in accordance with the laws of New South Wales.
10. Glossary
Act means the Copyright Act 1968 (Cth);
Administrators means those persons authorised by Copyright Agency and the Licensee, for example librarians and copyright officers, to use Flex for making Works available to End Users;
Copyright Agency means Copyright Agency Limited ABN 53 001 228 799;
Disability Provisions means sections 113E and 113F of the Act;
Educational Statutory Licence means the statutory licence contained in Division 4 of Part IVA of the Act;
FLEX means a system that combines an online repository of Works with an automated workflow management tool and an academic’s course material list application including the Software;
End User means any individual user of the Licensee, for example students and teaching staff/academics, who access Works made available on FLEX;
Licensee Data means any course information or other data inputted by the Licensee, or by Copyright Agency on the Licensee’s behalf, owned by the Licensee for the purpose of using FLEX or facilitating the Licensee’s use of FLEX;
Software means the code, databases and other elements of FLEX excluding the Licensee Data;
Supplier means Copyright Agency’s technology partner(s); and
Works means literary, dramatic, musical and artistic works as defined in the Act.