This Agreement sets
forth terms and conditions under which an institution of higher education
may receive access to and use The AMICO Library, the collective digital
library of visual and documentary resources of the Art Museum Image
Consortium ("AMICO"), a nonprofit corporation organized under the laws
of the District of Columbia. This Agreement is made and entered into
as of this _______ day of ________ 1998 (the "Effective Date").
Section 2 PURPOSE
AMICO is operated exclusively
for charitable, educational, and cultural purposes. More specifically,
the purpose of AMICO is to assist its Members: (1) by compiling a collective
digital library of visual and documentary resources documenting works
of art (the "AMICO Library"); (2) by providing dramatically increased
educational access to the documentary resources for the benefit of institutions
of higher education, museums, libraries, schools, and other charitable,
educational, and cultural institutions; and (3) by fostering and promoting
education and advancing knowledge in areas related to The AMICO Library,
including scholarship in the arts, humanities, informational sciences,
and social sciences.
Section 3 DEFINITIONS
"AMICO Library" means
the compilation of AMICO Works and any materials contained therein.
"AMICO Library University
Agreement" means the Agreement under which AMICO establishes the eligibility,
rights and obligations of an institution of higher education to subscribe
to and use The AMICO Library, as provided by an Authorized Distributor.
"AMICO Work" means the
catalog record and all other related multimedia documentation of a work
of art in The AMICO Library.
means an organization authorized by AMICO to provide access to and support
services for The AMICO Library.
"Designated User" means
any person authorized to receive access to and use of The AMICO Library
under the terms and conditions of this Agreement.
"Institution of Higher
Education" means an accredited post-secondary educational institution.
means an Institution of Higher Education authorized by AMICO to receive
access to and use The AMICO Library, through an Authorized Distributor,
under the terms and conditions of this Agreement.
Section 4 AMICO UNIVERSITY
By completing enrollment
and by accepting all of the terms and conditions of this Agreement,
a qualified Institution of Higher Education becomes an AMICO University
Subscriber, entitled to all of the benefits of and subject to all of
the responsibilities of University Subscribers. The policies and procedures
governing the qualifications, rights and obligations of Institutions
of Higher Education as University Subscribers are established by the
Board of Directors of AMICO. Continued acceptance of all the terms and
conditions is a condition of this University Subscription.
Section 5 INTELLECTUAL
5.1 AMICO'S Rights.
The AMICO Library, all of the AMICO Works contained therein, and other
materials related to The AMICO Library are protected under U.S. copyright
law and other applicable intellectual property and proprietary information
laws. The mark, AMICO LIBRARY, and other marks and tradenames used to
identify The AMICO Library are or shall be protected by U.S. trademark
law and other unfair competition laws. University Subscriber hereby
acknowledges that AMICO is the sole and exclusive owner of the rights
described in this section.
5.2 Grant of Rights.
AMICO hereby grants to University Subscriber a non-exclusive, non-transferable,
limited license to use, modify, reproduce, distribute, and publicly
display AMICO Works for educational, research, and scholarly purposes
to Designated Users under the terms of this Agreement. AMICO hereby
grants to University Subscriber a non-exclusive, limited license to
use the AMICO mark to promote the use of The AMICO Library within its
Designated User community. All other uses of The AMICO Library, AMICO
Works, related AMICO materials, and the AMICO Mark requires the permission
of or a separate license from AMICO, or one of its members.
5.3 Fair Use. AMICO
does not intend that the terms of this license in any way limit uses
by Designated Users which are designated by the Copyright Act, article
XXXX (Fair Use).
Section 6 USERS
6.1 Designated Users.
University Subscriber may designate categories of users that may receive
access to and use The AMICO Library under the terms of this Agreement.
Faculty members, enrolled students; university employees and researchers
officially affiliated with the University Subscriber may become Designated
Users. The following groups may not become Designated Users: alumni;
independent contractors; subscribers who pay fees to use university
facilities or services (such as individual users of the university gymnasium);
university tenants; and the members of the household of Designated Users.
6.2 University Museums
and Galleries.> Museums and galleries officially affiliated with the
University Subscriber may gain access to and use The AMICO Library by
entering into a separate AMICO Museum Agreement.
6.3 Limited Access Privilege.
University Subscriber may grant the privilege of limited access to The AMICO Library to: (1) occasional users who are not Designated Users
and who have access to computer terminals physically located on the
site of and under the control and administration of the University Subscriber,
and (2) users of the University Subscriber's online public access catalog
(OPAC) and similar resources, provided that the data displayed on the
University Subscriber's OPAC does not exceed the scope of the data displayed
on the AMICO public website as set forth in the AMICO Public Web Site
Section 7 USE FOR
EDUCATION, RESEARCH, AND SCHOLARSHIP
7.1 Permitted. Access
to and use of The AMICO Library under this Agreement is exclusively
for education, research and scholarship. More specifically, , in addition
to and notwithstanding any privileged use set forth in the U.S.Copyright
Act, Designated Users may receive access to and use The AMICO Library
for: (1) classroom instruction and related activities, (2) student assignments,
(3) public display or public performance in a university museum, gallery
or similar facility, including use in exhibit labels and other components
of the exhibit, (4) public display or public performance as part of
a professional presentation at a seminar, conference, or workshop, or
other such similar professional activity); (5) use in a student or faculty
portfolio, including non-public, display thereof, if such use conforms
to the customary and usual practice in the field; and (6) use in a dissertation,
including reproductions of the dissertation for personal use and library
deposit, if such use conforms to the customary and usual practice in
7.2 Prohibited. Access
to and use of The AMICO Library under this Agreement for any and all
purposes other than education, research and scholarship is prohibited.
More specifically, without express authorization from the copyright
holder, The University Subscriber and Designated Users are strictly
prohibited from: (1) publishing any AMICO Work in any medium or format,
(2) redistributing any AMICO Work by any means beyond the Designated
User community, and (3) storing any AMICO Work, in whole or in part,
beyond the term of this Agreement, unless expressly permitted. In no
event may a University Subscriber or its Designated Users use any AMICO
Work, or any adaptation thereof, in a commercial or business related
manner. The University Subscriber, or persons acting on behalf of the
University Subscriber, is prohibited from using any AMICO Work for fund-raising,
marketing promotion, or public relations.
7.3 Required Notices.
Any and all publicly displayed AMICO Works must: (1) any required copyright
management information, such as the name of the creator of the work,
the name and other identifying information of the copyright owner, terms
and conditions for the uses of the work, and such other information
as may be required by AMICO, (2) minimum documentation of the work of
art, as outlined in the AMICO Distributor Specification and (3) an acknowledgement
of the AMICO Member contributing the multimedia documentation to The AMICO Library, except where such an acknowledgement clearly would compromise
an educational objective (such as examination).
Section 8 ADAPTATIONS
8.1 Integrity of AMICO
Works. The University Subscriber must take all reasonable steps to ensure
the preservation of the integrity of AMICO Works, in whole or in part,
and to protect the moral rights, if any, of the creator of the underlying
original work of art. Any adaptation, alteration, addition to, deletion
from, manipulation, or modification (together "adaptations") of an AMICO
Work, in whole or in part, must be undertaken exclusively for education,
research or scholarship. The University Subscriber must maintain, subject
to audit by AMICO, complete and accurate records of all institutionally
created or systematic adaptations of AMICO Works created under this
Agreement, including a record of the specific educational, research,
or scholarly purpose served by the adaptation.
8.2 Prohibited Practices.
In no event may a Designated User: (1) reproduce or distribute any adaptation
of an AMICO Work, in whole or in part; (2) publish any adaptation of
an AMICO Work, in whole or in part, in any medium or by any means, or
(3) redistribute any adaptation of an AMICO work, outside the Designated
User community specified in this Agreement, in whole or in part, by
8.3 Retention of Adaptations.
Upon termination of this Agreement, the University Subscriber must certify
to AMICO that any and all institutionally created adaptations of AMICO
Works have been destroyed. With the exception of adaptations for student
assignments and for faculty or student portfolios, Designated Users
may not retain any adaptation of an AMICO Work, in whole or in part,
after the termination of this Agreement. The University Subscriber is
obligated to inform Designated Users of this provision both during the
period of use, and if and when the license is terminated.
8.4 Notices Required.
In addition to any other notices required under this Agreement, any
adaptation of AMICO Works, in whole or in part, must: (1) clearly identify
all changes in the image and/or related documentation, and (2) set forth
citations or direct links to the unadapted AMICO Work.
Section 9 DISTRIBUTION
9.1 Authorized Distribution.
University Subscriber may receive access to The AMICO Library through
an AMICO authorized distributor. In 1998-99, the authorized distributor
will be the Research Libraries Group, Inc. ("RLG") under RLG's "Museum
Object Record Service Agreement." The University Service shall be distributed
by RLG on the basis of regular, published distribution schedules, subject
to interruptions beyond the control of AMICO or RLG. Designated Users
may use The AMICO Library at any access point that is controlled by
RLG's user authentication system.
9.2 Local Mounting.
University Subscriber also may receive access to The AMICO Library through
local delivery When The AMICO Library is mounted locally by the University
Subscriber it is governed by the terms of the AMICO Distributor Specification,
in addition to those in this Agreement.
Section 10 SECURITY
10.1 University General
Responsibilities. University Subscriber is responsible for: (1) complying
with all computer security procedures required by AMICO's authorized
distributor, (2) monitoring, exercising control over, and certifying
access to The AMICO Library, (3) taking all other reasonable steps to
ensure the security of The AMICO Library.
10.2 University Policies
and Procedures. University Subscriber is responsible for establishing,
monitoring, and enforcing controls for the proper use of The AMICO Library,
including: (1) adopting and effectively disseminating policies and procedures
governing the proper use of The AMICO Library, including appropriate
sanctions for knowing and willful infringements, (2) providing instruction
to all Designated Users on the proper use of The AMICO Library; and
(3) fully investigating all known infringements and taking appropriate
disciplinary action in cases of knowing and willful infringements.
Section 11 UNAUTHORIZED
11.1 University's Responsibilities.
University Subscriber shall not be responsible for the unauthorized
use or infringement of The AMICO Library by Designated Users provided
that: (1) University Subscriber is in full compliance with the requirements
of section 10 of this Agreement; (2) such unauthorized use or infringement
is without the consent of the University Subscriber, (3) University
Subscriber promptly notifies AMICO of any such unauthorized use or infringement
of which it becomes aware; (4) University Subscriber takes all reasonable
steps to cause such unauthorized use or infringement to cease immediately
and (5) the University Subscriber takes appropriate disciplinary action
against the Designated User. University Subscriber shall cooperate fully
with AMICO in any investigation of such unauthorized use or infringement.
11.2 AMICO's Rights.
AMICO shall have the sole right, at its discretion, to bring any legal
action because of an unauthorized use or infringement of The AMICO Library.
University Subscriber shall not bring any legal action in connection
with an unauthorized use or infringement without first consulting with
Section 12 FEES AND
receiving access to The AMICO Library through AMICO's Authorized Distributor
is responsible for the prompt payment of all subscription fees as defined
by an AMICO schedule, based on numbers of Designated Users, certified
by the University Subscriber. This fee, along with , other applicable
fees charged by the Authorized Distributor for provision of access,
will be collected by the Authorized Distributor as a condition of providing
Section 13 NOTICES
13.1 AMICO. AMICO may
give written notices under this Agreement to University Subscriber by
electronic mail, by a general posting to the University Subscriber,
by facsimile transmission (with receipt confirmed), or by conventional
mail. In the case of electronic or a general posting to the University
Subscriber, notice shall be deemed to have been given on the day of
the delivery of the transmission. In the case of conventional mail,
notice shall be deemed to have given on the fifth business day following
the day of mailing if mailed postage prepaid. Any notice given to the
University Subscriber will constitute notice to all Designated University
13.2 University Subscriber.
University Subscriber must give notice to AMICO by electronic mail or
conventional mail, unless otherwise specified in this Agreement. A notice
by a University Subscriber to AMICO will not change the terms of this
Agreement, or the terms of any AMICO policy or guideline, unless an
authorized officer of AMICO expressly accepts the change in writing.
Notices to AMICO by conventional mail must be sent to:
Section 14 REPRESENTATIONS
14.1 General. AMICO
represents and warrants that it has the authority to enter into this
Agreement. University Subscriber represents and warrants that it is
an Institution of Higher Education and that it has the authority to
enter into this Agreement and to perform all the obligations under this
14.2 Intellectual Property.
AMICO warrants and represents that, to the best of its knowledge, the
use of The AMICO Library under the terms and conditions of this Agreement
shall not infringe the rights of any third party. However, the foregoing
shall not apply to adaptations of AMICO Works created under Section
8 of this Agreement. AMICO makes no warranties and representations,
and expressly disclaims
any liability, with respect to any rights of publicity or privacy and
any moral rights in AMICO Works and other materials in The AMICO Library.
Section 15 INDEMNIFICATION
15. 1 AMICO. AMICO shall
defend and indemnify University Subscriber, its employees, officers,
and directors against any claim or action brought against University
Subscriber arising out of (1) AMICO's breach of any term or condition
of this Agreement; (2) any third party claim for infringement or other
violation of any third party's intellectual property right or proprietary
rights in connection with University Subscriber's authorized uses under
this Agreement except with respect to adaptations of AMICO Works created
under Section 8 of this Agreement. With respect to any such claim or
action, AMICO shall pay any costs, damages, reasonable attorney's fees
or other expenses incurred by the University Subscriber.
15.2 University Subscriber.
University Subscriber shall defend and indemnify AMICO, its employees,
officers, and directors against any claim or action brought against
AMICO in connection with (1) University Subscriber's breach of any term
or condition of this Agreement, and (2) University Subscriber's unauthorized
use of The AMICO Library, and (3) Designated Users unauthorized
uses of The AMICO Library if known to the University Subsciber but not
acted upon by the University as specified in sections 8.2.3 and 10.2.3
of this agreement. With respect to any such claim or action, University
Subscriber shall pay any costs, damages, reasonable attorney's fees
or other expenses incurred by AMICO.
Section 16 REPORTING
16.1 Local Mounting.
The University Subscriber must report, on an annual basis, all AMICO
Works mounted locally for use by Designated Users.
16.2 Use Studies. The
University Subscriber is urged to share with AMICO data from all use
studies conducted with The AMICO Library.
16.3 Policy on Licensed
Resources. The University Subscriber must provide AMICO with a copy
of its policies on the use of licensed resources, and its procedures
for acting against known infringements.
Section 17. WITHDRAWAL
OF WORKS FROM THE AMICO LIBRARY
17.1 Withdrawal of AMICO
Works. AMICO may withdraw specific AMICO Work(s) from The AMICO Library
for good cause shown. Any claim, dispute, or action related to contributed
multimedia documentation by an AMICO Member shall be deemed to establish
good cause for the removal of such a work. The University Subscriber
shall withdraw disputed AMICO Work(s) from institutionally managed local
storage within ten (10) days following the date of notice by AMICO requesting
Section 18.TERM AND
18.1 Term. This Agreement
shall come into force on the Effective Date and shall remain in effect
through the end of the subscription year as defined by the Authorized
DistributorThis Agreement shall automatically be extended for successive
terms provided that the annual subscription fees are paid and no notice
of change of terms is given by AMICO.
18.2 Termination. AMICO
may terminate this Agreement upon at least thirty (30) days' prior written
notice to the University Subscriber because of any failure of the University
Subscriber to perform or observe any material term, agreement or warranty,
or if any representation contained herein is false. The failure of the
University Subscriber to report any infringement of which it becomes
aware shall be deemed to be a material breach of this Agreement. However,
the failure of an Designated User to perform or observe any material
term or condition of this Agreement shall not in itself be grounds for
termination provided that the University Subscriber is discharging its
responsibilities under section 11 of this Agreement.
18.3 Conduct Upon Termination.
Upon termination of this Agreement for any reason, University Subscriber
shall promptly notify all Designated Users that The AMICO Library subscription
has been terminated and shall promptly remove all AMICO Works and AMICO
Library materials from university networks and computers. University
subscriber shall promptly erase or destroy all institutionally created
and/or managed copies of AMICO materials fixed in any physical medium,
including prints, slides, and compact disks to provide certification
to AMICO of their destruction.
18.4 Educational Grace
Period. Under extraordinary circumstances (such as a documented budgetary
crisis) and solely to fulfill the University Subscriber's educational
mission, University Subscriber may continue to provide access to the
locally mounted portions of The AMICO Library for a period of one academic
semester after the expiration of the term of this Agreement and to specific
AMICO Works assigned in current courses for a period of twelve (12)
months after the expiration of the term of this Agreement, subject to
a duty to promptly remit all back subscription fees and other applicable
charges as a condition to renewal of the subscription during the subsequent
forty-eight (48) months. Such a grace period will be granted at AMICOs
discretion. University Subscribers wishing to take advantage of
this provision must submit a documented request.
Section 19 MISCELLANEOUS
19.1 Entirety of the
Agreement. The terms and conditions of this Agreement supercede all
prior oral and written Agreements between the parties with respect to
the subject matter of this Agreement and shall constitute the entire
Agreement between the parties with respect to the matters contained
herein. This Agreement shall not be modified or amended except by writing
duly executed by authorized representatives of the parties.
19.2 Choice of Law.
This Agreement will be interpreted, governed, and enforced under the
laws of the State of New York, without regard to its conflict of law
rules. Any claims or disputes arising out of or relating to this Agreement
shall be resolved by binding arbitration to be held in New York City
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
19.3 No Assignment.
The Parties to this Agreement shall not assign, subcontract, or sublicense
this Agreement or any of the rights and obligations thereunder. IN WITNESS
THEREFORE, the Parties have caused this Agreement to be executed as
the first day and year written first above.
Museum Image Consortium:
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