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".
- 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
"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.
- 2.1 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
- 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
- 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.
- 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
- 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.
- 6.1 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
(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.
- 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 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
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.
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.
No variation or amendment to this Agreement shall bind either party unless
made in writing and signed by or on behalf of both parties.
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.
- 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.
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.
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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