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AMICO Rights Committee

SCHEDULE 7:

SCRAN IT LIMITED

TERMS AND CONDITIONS OF USE

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".

1. DEFINITIONS
In these Conditions:-

    "Agreement": these Conditions and the application form overleaf completed and signed by the User;

    "Commencement Date": the date on which any SCRAN Digitised Records are first made available to the User;

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

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

    "Improvements": all improvements, updates, amendments or additions made to the SCRAN Digitised Records whether made by SCRAN IT or the User;

    "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;

    "Licence": the licence granted to the User in respect of the SCRAN Digitised Records pursuant to clause 2;

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

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

    "SCRAN Multi-media Programmes": any and all multi-media programmes developed by SCRAN IT or recipients of grant funding from SCRAN from time to time which are made available to SCRAN IT and its licencees for Educational Purposes;

    "SCRAN Resource Data Set": a working database developed and compiled by SCRAN IT from the resource data sets prepared by 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.

2. LICENCE
2.1 The SCRAN Digitised Records and all Intellectual Property Rights therein are owned by or licensed to SCRAN IT. The User shall not use or exploit the SCRAN Digitised Records or any part thereof save in accordance with this Agreement.

2.2 SCRAN IT grants to the User throughout the term of this Agreement a non-exclusive non-transferable licence to use the SCRAN Digitised Records (other than the SCRAN Resource Data Set) for Educational Purposes only (the "Licence") and accordingly permits use of the SCRAN Digitised Records (other than the SCRAN Resource Data Set) for such Purposes by:-

    2.2.1 any employees of the User;

    2.2.2 any student, school child or other person attending the User's premises; and

    2.2.3 where the User is a museum, gallery, library, community centre or other exhibition open to the public, any member of the public visiting the User's premises.

2.3 The User may not sell, resell or otherwise make the information contained in the SCRAN Digitised Records available in any manner or on any media to any third party unless the User has been granted prior written consent by SCRAN IT. If the User applies to SCRAN IT for such consent, the parties shall discuss and agree the terms on which SCRAN IT is prepared to make available any of the SCRAN Digitised Records, including the scope of the licence and the level of any royalty payable to SCRAN IT.
3. ANNUAL SUBSCRIPTION
3.1 The annual subscription (together with any value added tax applicable) shall be levied by SCRAN IT annually in advance with effect from the Commencement Date and shall be payable by the User within 30 days of receipt of SCRAN IT's invoice.

3.2 SCRAN IT shall be entitled to vary the annual subscription for the coming year on giving not less than 30 days notice to the User.

3.3 SCRAN IT reserves the right to charge the User interest in respect of the late payment of any sum at the rate of 2 per cent per annum above the base rate from time to time of The Bank of Scotland from the due date until payment.
4. DELIVERY
SCRAN IT shall deliver the SCRAN Digitised Records to the User by one or more of the means specified in the application form overleaf.
5. ACCURACY OF INFORMATION
5.1 SCRAN IT reserves the right to change the content, presentation, user facilities or availability of any part of the SCRAN Digitised Records and to make changes in any software used to make the SCRAN Digitised Records available at its sole discretion.

5.2 While SCRAN IT have no reason to believe that there are any inaccuracies or defects in the information contained in the SCRAN Digitised Records, SCRAN IT makes no representation gives no warranty express or implied with regard to the information contained in or any part of the SCRAN Digitised Records including (without limitation) the fitness of such information or part for any purposes whatsoever and SCRAN IT accepts no liability for loss suffered or incurred by the User as a result of the User's reliance on the SCRAN Digitised Records.
6. LIABILITY
6.1 Subject to Clauses 5.2 and 6.2, SCRAN IT's entire liability to the User in respect of any breach of its contractual obligations under this Agreement and any negligent act or omission arising under or in connection with this Agreement shall be limited to the amount of the annual subscription paid by the User for that year in which the breach, act or omission occurs in respect of each such breach, act or omission.

6.2 SCRAN IT's liability to the User for death or personal injury resulting from the negligence of SCRAN IT or its employees shall not be limited.

6.3 Subject to the above and to the extent permitted by law, SCRAN IT shall not be liable to the User 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 User as a result of an action brought by a third party).
7. USER'S OBLIGATIONS
7.1 The User warrants and agrees with SCRAN IT that:-

    (i) all rights and title in and to the SCRAN Digitised Records are expressly reserved to SCRAN IT;

    (ii) the User shall immediately provide full particulars to SCRAN IT in the event that the User becomes aware of any actual or threatened claims by any third party in connection with the SCRAN Digitised Records; and

    (iii) save in accordance with Clause 2.3 the User shall not use or exploit any part or parts of the SCRAN Digitised Records for any purpose other than Educational Purposes.

7.2 The User shall indemnify SCRAN IT and keep SCRAN IT fully indemnified from and against all actions, proceedings, claims, demands, costs and damages arising directly or indirectly as a result of breach or non-performance by the User of its obligations under this Agreement.

7.3 Clause 7 shall survive termination of this Agreement for any reason.
8. IMPROVEMENTS
Improvements in the SCRAN Digitised Records shall be supplied to the User by SCRAN IT in its sole discretion from time to time.
9. TERM AND TERMINATION
9.1 This Agreement shall commence on the Commencement Date and shall continue thereafter unless earlier terminated in accordance with this clause 9 or unless the licences of the SCRAN Digitised Records in favour of SCRAN IT terminate.

9.2 SCRAN IT may terminate this Agreement by giving 1 month's notice in writing to the User at any time.

9.3 The User may terminate this Agreement by giving 1 month's notice to SCRAN IT expiring on the anniversary of the Commencement Date or any subsequent anniversary of that date.

9.4 Either party may terminate this Agreement forthwith by written notice to the other party if the other party is in breach of any obligation on it hereunder and, in the case of a breach capable of remedy, it shall not have been remedied by the defaulting party within 28 days of written notice specifying the breach and requiring its remedy, or if the other party becomes insolvent, has a receiver appointed over the whole or any part of its assets, enters into any voluntary arrangement or otherwise compounds with creditors, or has an order made or resolution passed for it be wound up (otherwise than in furtherance of a scheme for amalgamation or reconstruction) or an administrative order is made in respect of it or (in the case of the User) if any analogous event occurs in respect of the User.

9.5 Termination of this Agreement shall be without prejudice to the accrued rights and obligations of the parties.

9.6 Termination of this Agreement for any reason shall not bring to an end:-

    (i) the User's obligations to pay any annual subscription which has accrued due; and

    (ii) the obligations on the User under clauses 7.2 and 9.7;

9.7 On termination of this Agreement for any reason, the User shall cease to use the SCRAN Digitised Records and shall deliver up to SCRAN IT on request all copies of the SCRAN Digitised Records in its possession and all information, manuals, documents and software relating to the SCRAN Digitised Records.
10. FORCE MAJEURE
10.1 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.
10.2 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.
11. GENERAL
11.1 No variation or amendment to this Agreement shall bind either party unless made in writing and signed by or on behalf of both parties.

11.2 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.
12. 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.
13. ASSIGNATION
13.1 Subject to clause 13.2, 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.

13.2 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.
14. 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.
15. 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.


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