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AMICO Rights Committee

SCHEDULE 2:

MODEL FORM LICENCE AGREEMENT
by
CONTRIBUTOR TO THE SCRAN DATABASE
in favour of
SCRAN IT LIMITED

NOTE: These documents provided by kind permission of SCRAN. SCRAN and its expanded acronym are registered trademarks". This document is provided in confidence. Copying or provision in any form to a further party requires the direct consent of SCRAN. Current use restricted to AMICO and its members".

LICENCE AGREEMENT

by

(1)    The person, firm, company or other body named and designed in the Schedule (hereinafter referred to as the "Contributor"); and

(2)    SCRAN IT LIMITED, incorporated in Scotland under the Companies Acts with registered number 163518 and having its registered office at County House, 20 Torphichen Street, Edinburgh EH3 8JB (hereinafter referred to as "SCRAN IT")

WHEREAS:-

(A)   SCRAN (defined below) has provided or is to provide grant funding to the Contributor for the compilation of a digitised database and/or multi-media resources relating to certain items contained in the Contributor's collection;

(B)   it is a condition of such grant funding that the Contributor licences SCRAN IT to use, licence and otherwise deal with such database and resources on the terms and conditions set out in this Agreement;

NOW THEREFORE the parties agree as follows:-

1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall, except where the context otherwise requires, bear the following meaning:-

    "Commencement Date": the date specified in the Schedule;

    "Commercial Purposes": use of the relevant Contributor's Digitised Records for any reason which generates a profit;

    "Contributor's Base Data Sets": a basic database containing factual records of certain Works as prepared by the Contributor pursuant to an Offer (an example of which is annexed to this Agreement for illustrative purposes);

    "Contributor's Digitised Records": the Contributor's Base Data Sets, the Contributor's Resource Data Sets, the Contributor's Full Data Sets and the Contributor's Multi-media Programmes;

    "Contributor's Documentation": any instruction manuals, user guides and other information made available and to be made available by the Contributor to SCRAN IT relating to any Contributor's Digitised Records whether in printed or machine readable form;

    "Contributor's Full Data Sets": multi-media resources relating to certain Works with appropriately designed screen layouts and inter-activity as prepared by the Contributor pursuant to an Offer (an example of which is annexed to this Agreement for illustrative purposes);

    "Contributor's Multi-media Programmes": completed multi-media programmes relating to certain Works as prepared by the Contributor pursuant to an Offer (an example of which is annexed to this Agreement for illustrative purposes);

    "Contributor's Resource Data Sets": a working database relating to certain Works as prepared by the Contributor pursuant to an Offer (an example of which is annexed to this Agreement for illustrative purposes);

    "Educational Purposes": use of the relevant Contributor's Digitised Records for education, private study or research provided that such use by the Contributor or SCRAN IT does not generate a profit;

    "Founder Members": Scottish Museums Council, the Royal Commission on the Ancient and Historical Monuments of Scotland and The National Museums of Scotland;

    "Improvements": all improvements, updates, amendments or additions made to any of the Contributor's Digitised Records whether made by or on behalf of SCRAN IT or the Contributor pursuant to Clause 5;

    "Intellectual Property Rights": patents, trademarks, trade names, design rights, copyright (including rights in computer software and moral 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;

    "Offer": an offer of grant funding by SCRAN to the Contributor accepted by the Contributor;

    "Schedule": the schedule which is incorporated into and forms part of this Agreement;

    "SCRAN": Scottish Cultural Resources Access Network, a company limited by guarantee, incorporated in Scotland under the Companies Acts with registered number 166833 and having its registered office at County House, 20 Torphichen Street, Edinburgh EH3 8JB, being the parent company of SCRAN IT;

    "SCRAN Base Data Set": the basic database developed and compiled by SCRAN IT by extracting relevant fields from the base data sets prepared by the Contributor and other recipients of grant funding from SCRAN from time to time;

    "SCRAN Digitised Records": the SCRAN Base Data Set, SCRAN Resource Data Set, SCRAN Full Data Set and SCRAN Multi-media Programmes;

    "SCRAN Full Data Set": any multi-media resources developed and compiled by SCRAN IT from the full data sets prepared by the Contributor and other recipients of grant funding from SCRAN from time to time;

    "SCRAN Group": SCRAN, SCRAN IT and any other companies forming part of the SCRAN group of companies from time to time;

    "SCRAN Multi-media Programmes": any and all multi-media programmes developed by SCRAN IT, the Contributor or any other recipients of grant funding from SCRAN from time to time;

    "SCRAN Resource Data Set": a working database developed and compiled by SCRAN IT from the resource data sets prepared by the Contributor and other recipients of grant funding from SCRAN from time to time;

    "Specification": any specification for any of the Contributor's Digitised Records agreed between the Contributor, SCRAN and/or SCRAN IT pursuant to an Offer; and

    "Works": the artefacts, literary, dramatic, musical, artistic, graphic or other works, documents and information forming part of the Contributor's collection.

1.2 In this Agreement, the singular includes the plural and vice versa.

1.3 Unless otherwise stated, references to sub-clauses, clauses and to the Schedule are sub-clauses, clauses and the Schedule to this Agreement.

1.4 In this Agreement, the clause headings are for reference only and shall not affect the construction or interpretation hereof.
2. GRANT OF LICENCE
2.1 Subject to clauses 2.2 and 2.3, the Contributor hereby grants to SCRAN IT a non-exclusive, perpetual, royalty free world-wide licence to use sub-licence and otherwise deal with any or all of the following for any purpose upon and following creation of the same from time to time:-

    2.1.1 Contributor's Base Data Sets;

    2.1.2 Contributor's Resource Data Sets;

    2.1.3 Contributor's Full Data Sets;

    2.1.4 Contributor's Multi-media Programmes;   and

    2.1.5 Contributor's Documentation.

For the purposes of this clause 2.1 "use" means the viewing, copying, modification, adaptation and reproduction of or extraction from the Contributor's Digitised Records and/or the Contributor's Documentation by or on behalf of SCRAN IT and the incorporation of the Contributor's Digitised Records in whole or in part into the SCRAN Digitised Records and the transmission thereof to end users by any media available.

2.2 In order to assist SCRAN IT to establish a pre-eminent digital resource of Works held in Scottish museums, galleries and other archives, the Contributor and SCRAN IT agree as follows:-

    2.2.1 the Contributor shall be entitled to use the Contributor's Base Data Sets for any purpose;    and

    2.2.2 the Contributor shall be entitled to use the Contributor's Resource Data Sets, the Contributor's Full Data Sets and the Contributor's Multi-media Programmes for Educational Purposes;

    2.2.3 the Contributor shall be entitled to use the Contributor's Resource Data Sets, the Contributor's Full Data Sets and the Contributor's Multi-media Programmes for Commercial Purposes either by exploiting the Contributor's Digitised Records or any part thereof itself or in collaboration with any third party provided that:-

      2.2.3.1 the Contributor shall not dispose of the Contributor's Digitised Records (or any part thereof) whether by sale, licence or otherwise to any third party in circumstances where such assets (or any part thereof) may be or is used or exploited in connection with the commercial hire or licensing of any multi media resource by a photolibrary or by any other body which carries on a business similar to that of a photolibrary;    and

      2.2.3.2 the Contributor gives advance written notice to SCRAN IT where ten or more images are to be used in a single project and;

      2.2.3.3 the Contributor first obtains SCRAN IT's written consent (not to be unreasonably withheld or delayed) to such use or exploitation, where fifty or more images are to be used in a single project.

2.3 In the event that SCRAN IT uses any of the Contributor's Digitised Records for Commercial Purposes, SCRAN IT shall pay to the Contributor a royalty at a level to be agreed between the parties on a case by case basis before such exploitation. Such royalty shall reflect the number of the Contributor's Digitised Records used by SCRAN IT and the level of income received by SCRAN IT from such use. Where the Contributor's Digitised Records are used together with any records provided by other recipients of grant funding from SCRAN then the royalty shall be apportioned between the Contributor and such other recipients on a pro rata basis. In the event that any of the Contributor's Digitised Records are not available for commercial use, the Contributors shall identify such and notify SCRAN IT accordingly.
3. WARRANTY AND INDEMNITY
3.1 The Contributor hereby warrants and undertakes to SCRAN IT as follows:-

    3.1.1 it is the owner or licensed user of all Intellectual Property Rights comprised in or arising from the Contributor's Digitised Records and the Contributor's Documentation (including, without limitation, the copyright in any computer program) and the Contributor has not and shall not enter into any arrangement which may conflict with this Agreement;

    3.1.2 it is the sole beneficial owner of or has obtained all the permissions or other approvals required of the beneficial owner of each of the Works to the digitisation and inclusion of such work in the Contributor's Digitised Records and the Contributor's Documentation and to the granting of this licence in favour of SCRAN IT;

    3.1.3 to the best of its knowledge and belief the use and publication of the Contributor's Digitised Records or any part thereof or the Contributor's Documentation by SCRAN IT in accordance with this Agreement shall not infringe and is not likely to infringe the rights of any third parties;

    3.1.4 that the Contributor shall, immediately it becomes aware of any infringement by third parties of any Intellectual Property Rights in the Contributor's Digitised Records or the Contributor's Documentation or any alleged infringement by the Contributor of any Intellectual Property Rights owned by third parties, inform SCRAN IT and the Contributor shall diligently and promptly prosecute or defend, at its expense, any proceedings brought in respect of such infringement and keep SCRAN IT informed at all times of the position and progress of the proceedings;

    3.1.5 the right to be identified as defined in section 77 of the Copyright Designs and Patents Act 1988 ("the 1988 Act") has not been asserted by the author of any of the Works, or where such assertion has been made, the relevant author is identified as such in the relevant part of the Contributor's Digitised Records, a waiver of the right to object to derogatory treatment of any of the Works pursuant to section 80 of the 1988 Act has been obtained from the author of the Works and none of the Works has been falsely attributed to any author contrary to section 84 of the 1988 Act;

    3.1.6 the Contributor has used all reasonable endeavours to ensure that all statements purporting to be facts in the Contributor's Digitised Records are true and correct and no advice, formula or instruction in the Contributor's Digitised Records will, if followed or implemented by any person cause loss, damage or injury to them or any other person;

    3.1.7 the Contributor's Digitised Records meet the Specification, have been prepared with all due diligence and care, and shall be free from material defects in design, workmanship and materials and shall contain any information and Works specified by SCRAN IT;

    3.1.8 the Contributor has used all reasonable endeavours to ensure that the Contributor's Digitised Records or any part or parts thereof, are not obscene or blasphemous or offensive to religion or defamatory of any person and do not contain any material which has been obtained in violation of the Interception of Communications Act 1985, or the Official Secrets Act 1989 and nothing contained in the Contributor's Digitised Records would if published constitute a contempt of court;

    3.1.9 where the Contributor is a museum or a gallery, the Contributor has obtained and shall maintain its full registered status under the Museum & Galleries Registration Scheme;

    3.1.10 where any Works of unknown authorship are comprised or copied in digital form into the Contributor's Digitised Records, the Contributor has made all reasonable enquiries to identify the author of such Works; and

    3.1.11 that whenever requested by SCRAN IT, the Contributor shall apply to any of the Contributor's Digitised Records, the Contributor's Documentation or any products deriving therefrom, any promotional, marketing or publicity materials or any packaging relating thereto, the logo or trademark of the Millennium Commission and/or SCRAN IT in a form approved by the Millennium Commission or SCRAN IT (as appropriate).

3.2 The Contributor indemnifies and shall keep SCRAN IT fully and effectively indemnified from and against all liability, costs, losses, claims and expenses suffered or incurred by SCRAN IT directly or indirectly as a result of any breach of any of the warranties in clause 3.1 or of any obligation of the Contributor under this Agreement.

3.3 Each of the warranties and undertakings contained in this clause 3 is deemed to be repeated as at the date of delivery of each part of the Contributor's Digitised Records to SCRAN IT.
4. INFORMATION
The Contributor shall provide free of charge all such information in its possession necessary to enable SCRAN IT to incorporate the Contributor's Digitised Records (or any part thereof) into the SCRAN Digitised Records and to use, sub-licence and otherwise deal with the Contributor's Digitised Records in accordance with this Agreement. The Contributor agrees to provide such other assistance including training as is reasonably necessary to successfully incorporate the Contributor's Digitised Records (or any part thereof) into the SCRAN Digitised Records.
5. IMPROVEMENTS
5.1 As part of the administration of its collection, the Contributor shall review the content, organisation and layout of the Contributor's Digitised Records at regular intervals and shall identify any updating, improvement or other changes which may be required as a result of such review. The Contributor shall adhere to the terms of any guidance issued by SCRAN IT or any of the Founder Members from time to time which relates to the administration and review of any digitised records of its collection and shall keep SCRAN IT informed on a regular basis of the need for any updating, improvement or other changes.

5.2 Where any changes are identified by the Contributor pursuant to Clause 5.1 in respect of any Contributor's Base Data Sets or if changes to any Contributor's Base Data Sets are suggested by SCRAN IT, the Contributor shall update such files at its cost and provide a copy of such updated files to SCRAN IT as soon as practicable.

5.3 Where any updating, improvement or other changes require to be made to any Contributor's Resource Data Sets, Contributor's Full Data Sets or Contributor's Multi-media Programmes whether identified by the Contributor, SCRAN IT or any third party, the Contributor shall advise SCRAN IT of such changes and following discussion with the Contributor, SCRAN IT shall:-

    5.3.1 decide what Improvements (if any) require to be made;

    5.3.2 assess the timescale for the making of such Improvements;

    5.3.3 specify the procedure for the making of such Improvements by or on behalf of the Contributor and/or by or on behalf of SCRAN IT.

5.4 The parties agree that the costs of all Improvements to be made pursuant to Clause 5.3 shall be assessed and agreement will be reached on the responsibility for meeting such costs prior to either party commencing work on the implementation of any Improvements.

5.5 The provisions of Clause 2 shall apply to all Improvements.
6. TERM AND TERMINATION
6.1 SCRAN IT shall be entitled to terminate this Agreement forthwith by notice on the happening of any of the following:-

    6.1.1 on breach by the Contributor of any material obligation on it hereunder which, in the case of a breach capable of remedy, shall not have been remedied by the Contributor within 28 days of written notice from SCRAN IT specifying the breach and requiring its remedy;

    6.1.2 on the insolvency of the Contributor, on the appointment of a receiver or administrator over the whole or any part of its assets, on the entry of the Contributor into any voluntary arrangement or on the Contributor compounding with creditors or having an order made or a resolution passed for it to be wound up (otherwise than in furtherance of a scheme for amalgamation or reconstruction on terms previously approved by SCRAN IT) or on an administration order being made in respect of the Contributor or if any analogous event occurs in respect of the Contributor; or

    6.1.3 on the ownership or control of the Contributor passing into the hands of any person which SCRAN IT in its reasonable discretion considers unsuitable for any reason.

6.2 In the event that:-

    6.2.1 SCRAN IT becomes insolvent or a receiver is appointed over the whole or any part of its assets, or SCRAN IT enters into any voluntary arrangement or otherwise compounds with its creditors or an order is made or a resolution is passed for SCRAN IT to be wound up (otherwise than in furtherance of a scheme for amalgamation or reconstruction) or an administration order is made in respect of SCRAN IT; or

    6.2.2 the ownership or control of SCRAN IT changes, then this Agreement shall automatically terminate without any requirement to give notice and the terms of paragraph 8.2 of any Offer shall apply.

6.3 Subject to clause 6.1.3 the parties agree that in the event that the Contributor is abolished and replaced with any successor body, such successor shall be held in all respects to be a party to this Agreement.

6.4 The provisions of clause 2 shall survive any termination of this Agreement pursuant to clause 6.1 and SCRAN IT shall remain licensed in perpetuity to use the Contributor's Digitised Records and the Contributor's Documentation as held by SCRAN IT at the date of termination.
7. FORCE MAJEURE
7.1 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.

7.2 For the purposes of this Agreement "Force Majeure" shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party concerned.
8. GENERAL
8.1 The terms and conditions contained in this Licence may be amended by SCRAN IT following agreement with the Contributor and other existing contributors. No amendment or variation to the terms of this Agreement shall be effective unless agreed in writing on behalf of SCRAN.

8.2 Failure by either party hereto 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.
9. NOTICES
Any notice required to be given hereunder by either party to the other shall be in writing and shall be served by sending the same by registered or recorded delivery post to the address of the other party as given herein or to such other address as that party may have previously notified to the party giving notice as its address for such service.
10. ASSIGNATION
10.1 Subject to clause 10.2, neither party shall be entitled to assign the benefit or burden of this Agreement, whether in whole or in part, without obtaining the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.

10.2 SCRAN IT shall be entitled to assign all or any part of the benefit or burden of this Agreement to SCRAN or any other member of the SCRAN Group and to any other charitable institution or institutions having objects similar to the objects of SCRAN and which prohibit the distribution of its or their income and property to its or their members to an extent at least as great as are imposed on SCRAN by virtue of the terms of its Memorandum of Association.
11. ARBITRATION
Any dispute arising out of or in connection with this Agreement shall be referred to the arbitration of an arbiter appointed by agreement between the parties or, in default of agreement, nominated on the application of either party by the President for the time being of The Law Society of Scotland.
12. RESTRICTIVE TRADE PRACTICES ACT 1976
Any restriction contained in this Agreement or in any arrangement of which this Agreement forms part by virtue of which this Agreement or such arrangement is subject to the Restrictive Trade Practices Act 1976 shall be of no effect until the day following the day on which particulars of this Agreement and of any such arrangement have been delivered to the Office of Fair Trading and the parties agree to use their best endeavours to provide such particulars as soon as reasonably practicable after the date of this Agreement.
13. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with Scots law and the parties hereby submit to the exclusive jurisdiction of the Scottish courts: IN WITNESS WHEREOF.


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