Terms & Conditions Agreement II-1: Framework for a License Agreement for the University Educational Use of AMICO Licensed Digital Content

This version dated August 5, 1997

This document describes a licensing framework for a product based on The AMICO Library, for university educational use, which is intended to be acceptable to both universities and museums. It identifies the terms of a non-exclusive license, outlines permitted uses, defines licensed users, establishes modes of distribution and access, states security and reporting requirements, and assures licensees of continuity of access. Other licenses governing users, uses and terms not covered by this license may be offered by AMICO.

1. Purpose and Goals

This clause outlines the nature of the license granted.

1.1. Universities License Product

This agreement provides universities with licensed access to a product consisting of multimedia digital documentation of works from museum collections, for defined educational uses. The product is a defined portion of The AMICO Library and specific modes of delivery, associated tools and value-added indexes.

1.2. Universities Distribute Product

Licensees are permitted to distribute the licensed content over a secure network and provide secure access on free-standing institutionally-owned computers in order to make it available to members of the University community defined here as Users, for educational purposes defined here as Uses.

2. Parties

This clause establishes who signs the agreement.

2.1. AMICO and the University Sign

The agreement is signed between AMICO and a College or University.

2.1.1. Third-party definition of the boundaries of the University

For the purposes of this license, the University is defined as users with defined relationships to the institution as a whole, as declared to a third-party such as an accrediting agency, governmental body, or authority such as the Carnegie Higher Education Commission. The license is not limited to one or more ñsitesî.

2.1.2. AMICO members which are part of a university

While museums which are AMICO members may license this product under terms specific to them as members of the consortium, such a license will not apply to the Universities of which they are a part.

2.1.3. Potential AMICO members which are part of Licensing University

University rights under this license do not confer on museums which are eligible for membership in AMICO, but have chosen not to participate, any rights to use of the product licensed to their parent university.

3. Grant of license

AMICO grants the University a non-exclusive license to reproduce, perform, and display the licensed works under secure conditions and within the limits of the agreement.

3.1. Licensed Users

Only users as defined may have access.

3.2. Educational Uses

Only educational uses as defined are permitted.

3.3. Non-Transferable

This license is non-transferable.

4. License period

This clause determines the length of the license granted.

4.1. One Year Term

The License is granted for one academic year, in order to accommodate course and network preparation requirements.

4.2. Access Prior to the License Term

Access to the licensed product prior to the term of the license is granted only for University technical personnel engaged to assure that access can be provided when the license term begins.

5. Continuity of access

Recognizing the dependence that develops when courses are build around particular resources, this clause guarantees the University continued access to the licensed product in the event of budgetary crisis. It also acknowledges that special circumstances may require the museums to withdraw certain items from the distributed product during the term of the license.

5.1. Provisions for university budgetary crises

5.1.1. Access to locally mounted portions after termination

Recognizing the damage that would be caused to the academic program of a university if its budget did not allow renewal of its license, ongoing access is granted to locally mounted portions of the product for use for a period of one additional academic semester (no longer than 6 months) after the term of the license expires.

5.1.2. Access to course materials after termination

Access to specific named items used in courses during the licensing period is provided for 12 months after the term of the license expires.

5.1.3. No renewal without back fees

Recognizing the loss of income to AMICO from a university exercising this budget related insurance, the University may not re-subscribe during a subsequent 48 month period without paying back fees for the period covered by an exercise of the continuity of access terms.

5.2. Withdrawal of individual works with disputed rights

Recognizing that actions by artists, their heirs and others might challenge rights which AMICO members transferred to the consortium, AMICO reserves the right to withdraw individual works from the licensed product during the license term. When such situations apply, the University licensee agrees to remove the designated work from all institutionally mounted copies of the content.

6. Failure of the Consortium

Recognizing the dependence upon the AMICO resource when it is used in the curriculum, this clause provides assurances in the event that AMICO fails as a venture.

6.1. Library in escrow

Recognizing the risk of failure of the consortium, AMICO will place its full Library in escrow. Access to licensed products derived from that Library will be guaranteed by the escrow agent for the term of the license.

6.2. Members individually guarantee terms

Further, each AMICO member specifically guarantees licensees continued access to the digital works it supplied to AMICO in the event of the failure of the consortium, for the term granted in existing licenses at the time of failure.

6.3. Museums serve as the archival repository

Reflecting the nature of museums, which are the holders of the original intellectual property and rights licensed in this product, scholars are assured of archival access to the underlying data. The AMICO member museums individually and collectively ensure archival access to the original works and documentation provided to AMICO, just as they already do in fulfillment of their missions as guardians of their collections.

7. Termination

This clause outlines the terms of withdrawal or termination of the license.

7.1. No withdrawal during term

No provision is made for University withdrawal from this agreement during its term.

7.2. Termination upon breach

AMICO can terminate this license upon breach by the University, including failure to report known violations or to take action against infringements. The license will not be terminated for breaches by individuals as long as the University is enforcing the terms of the license and acts against violators.

7.3. Certified removal of materials

Should a University fail to renew its license, any Licensed materials must be removed from any institutionally-owned computers (except itemized content covered under provisions of Continuity of Access, which must be removed as soon as that extension is over). Notice must be given to licensed users that their rights to use copies on personal computers are expired.

7.4. Destruction or Return of Copies

Allcopies on any medium, such as prints, slides, CD's or other formats, made from licensed works during the term of the license must be destroyed or returned when the license expires or is withdrawn. The university must be prepared at any time to provide a list of all such copies created under its auspices.

8. Users

This clause defines licensed users.

8.1. University Community

The licensing university is responsible both for the definition and enumeration of the users comprising its community and should at any time be able to validate the standing of any individual as a member of that community. The University can make the AMICO product available to the entire membership of its ñuniversity communityî as these have been enumerated or categorically defined to a third party (see 2.1.1). The ñuniversity communityî commonly includes:

8.1.1. Faculty

Regular and adjunct faculty can have access.

8.1.2. Staff

Permanent and temporary staff can have access.

8.1.3. Students

Full and part-time students can have access.

8.1.4. Affiliates

Affiliates whose status would make the eligible for a university identification card and who have been defined as part of the University community under the self-describing provisions of 2.1.1 can have access.

8.1.5. Visiting faculty

Visiting faculty can have access during the term of their appointments; faculty on leave to visit other universities can have access while away.

8.1.6. Researchers

Researchers whose status would make them eligible for a university identification card and who have been defined as part of the University community under the self-describing provisions of 2.1.1 can have access.

8.2. Specifically disallowed users:

The following types of users are specifically excluded from gaining access to the product under this license.

8.2.1. Subscribers to resources

Individuals whose affiliation with the University is based on paying for the use of resources, such as the library, or network, rather than for courses are not licensed users, (though other licenses may be offered by AMICO to accommodate them).

8.2.2. Alumni

Alumni are not licensed users under this license (although alumni may be eligible as a group under separate AMICO licenses).

8.2.3. Tenants

Members of loosely affiliated groups renting facilities and services from the University are not licensed users.

8.2.4. Families

Members of the family of licensed users are not covered by this license even if the licensed user is using the product from home, although AMICO may offer a separate license to cover use by such individuals.

8.3. Non-transferable

Licensed users may not provide access, even temporarily, to the product or derivatives of the product to others who are themselves not licensed users.

9. Uses

This clause enumerates uses that are permitted under this license which are intended to extend any uses permitted under fair use by the copyright law. Disallowed uses may be licensed directly from the rights holders or through further licenses with AMICO.

9.1. Allowed uses

Licensed users may view, download, print, copy, perform, display and compile digital works from the licensed product within defined educational contexts and purposes, including:

9.1.1. classroom teaching

Classroom uses, including display are acceptable.

9.1.2. research

Research uses, including manipulation as an aid to study and analysis, are acceptable.

9.1.3. student assignments

Use in student assignments, including the making of derivatives as assignments, is acceptable.

9.1.4. display in an academic gallery

Public exhibition and display, including incorporation within interpretive labels and/or installations, in an academic gallery or within a museum environment is acceptable.

9.1.5. display in a professional context

Public display, by licensed users, in the context of professional activities, such as at a scholarly conference are acceptable.

9.1.6. maintain in a professional portfolio

Maintenance of licensed works even beyond the term of the institutional license, within a student or faculty portfolio, and its off-line, non-public, presentation or display as part of that portfolio in disciplines in which this is a normal requirement of academic practice and expected in the job market, is acceptable.

9.1.7. incorporation in a dissertation

Incorporation of entire works within a dissertation, and the making of personal and library deposit copies of that dissertation with these works in them works even beyond the term of the institutional license, is acceptable.

9.2. Allowed modifications to works

Modification of format and alteration of intellectual and/or visual content of works from the licensed product is permitted for educational purposes within concrete limits as defined below:

9.2.1. Copies

Copies, such as prints, photographs, or digital copies, may be created for licensed uses, but may not be retained by anyone beyond the term of the license except in the limited context of student assignments and portfolios outlined above.

9.2.2 Manipulation and Alteration

The educational benefits of manipulation and alteration are recognized by this license and constrained only within the bounds of the academic tradition of proper citation and the moral rights of creators. Quotation, critique and alteration of texts and manipulation or alteration of images are permitted, if the use takes place within an educational context and purpose and the moral rights of artists and authors are respected. The results of such exercises should include explicit identification of what changes have been made to images and accompanying documentation and include citations and/or direct links to the unmodified copy.

9.3. Specifically disallowed uses:

The following uses are specifically disallowed under this license and separate permissions must be sought for each such use:

9.3.1. Redistribution

Redistribution, including re-transmission and/or public display of the product orcopiescreated from it, in other than the educational contexts specified and/or accessible to users not covered by this license, is not permitted

9.3.2. Commercial use

Commercial use, including charging fees for any event or venue which includes licensed content, is not permitted. Neither commercial uses of content which originated in authorized classroom uses nor incorporation of the content into works of art offered for sale, which were originally created as authorized research or educational uses, are permitted.

9.3.3. Publication

Publication in any medium or format is not permitted.

9.3.4. University fund-raising, promotion, marketing and other public relations

University fund-raising, promotion, marketing and other public relations using licensed content is not permitted.

9.3.5. Long-term storage

Downloading for storage in any medium or format beyond the term of the license is not permitted.

9.3.6. Modification of the distributed product

Modification of work as stored in the distributed first copy of the product is not permitted. An unmodified copy must at all times be provided for reference.

9.3.7. Reposting manipulated images

Re-posting of manipulated images to the campus servers, except to support access requirements within defined and limited curricular requirements, is not permitted. If this is done, a record must be kept by the University and these manipulated images must be deleted as soon as the defined curricular purpose has been served.

9.3.8. Display without credit

Display in any medium or format without the specified credit line except during formal examinations when such a credit line would interfere with an educational measure, is not permitted.

9.3.9. Mounting without data

Local mounting without the defined minimum textual data associated with the work immediately accessible, is not permitted.

10. Authorized Access by Unlicensed Users

10.1. Individuals with access to public terminals

Unlicensed users with access to publicly available university library services on the site of the University can have read-only access to AMICO licensed products. Means for downloading and printing may not be provided to such users.

10.2. Remote users of library catalogues

Unlicensed users with remote access to publicly available library catalogues in which tombstone data and thumbnail images from AMICO products mounted on licensed campus networks are incorporated may have access to this limited cataloging data.

11. Format of the Product

This clause defines the way in which AMICO products will be delivered

11.1. Standard technical formats

AMICO products will be delivered in standard technical formats, published by AMICO prior to the beginning of each licensing year.

11.2. Standard Documentation

Documentation will follow standards published by AMICO and established with reference to community practices. University licensees will be encouraged to participate in AMICO standards setting processes.

12. Distribution

This clause defines the means by which the AMICO products are made available.

12.1. Regular distribution schedules

AMICO products will be made available through existing distributors, and through AMICO itself, according to regular, published, distribution schedules. It will be available both for local delivery on the campus network of the Licensee and via remote access through the AMICO Server or mechamisms established by other distributors.

12.1.1. Access means established annually

Specific means of access to AMICO products will be established on an annual basis.

12.2. Universities may mount data locally

The University may make all or part of the product available on its campus network or local systems.

12.2.1. Must mount assigned works

Items used in classroom assignments, placed on reserve as part of a course review or assignment, incorporated into exhibits, or used in other ways that will generate predictably regular use over a period of time, must be made available over the campus network or on free-standing institutional computers when universities choose the option of receiving the Library through AMICO rather than another distributor.

12.2.2. AMICO Server may be used

The remainder of the licensed product can be consulted through the AMICO Server, subject to the usage charges described under fees, or used through agreements between the licensee and an AMICO distributor.

12.3. Alternate distribution channels

Under the license, the University will have access to the full product for local mounting or, alternatively, may take advantage of the following distribution channels:

12.3.1. Catalogue on AMICO Server for Ordering Content

A catalogue including thumbnail images, mounted on the AMICO Server, that enables ordering of digital works for local delivery.

12.3.2. Works on the AMICO Server for Ad Hoc Use

The licensed AMICO library consisting of detailed documentation and high-resolution images of works can be consulted on the AMICO Server.

12.3.3 Distributors

Third party distributors will be contracted to provide The AMICO Library for licensees. These distributors will have different arrangements for access.

13. Points of Access

13.1. Campus Access

Licensed users may have access from anywhere on the University campus, including:

13.1.1. Classrooms

Access may be available from classrooms.

13.1.2. Student dormitories

Access may be available from student dormitories.

13.1.3. Campus research facilities

Access may be available from media centers, visual resource collections, laboratories and other venues on campus which support research.

13.1.4. Libraries

Access may be available from campus libraries.

13.2. Remote Access

Licensed users may have remote access from anywhere, including:

13.2.1. Homes

Access may be available from home if involved in educational uses as student or as part of their university employment

13.2.2. Remote facilities of the University

Access may be available from another location, including one belonging to another institution (for example, when distance education students enrolled in the academic program of the University meet in facilities owned by a non-licensee).

14. Acknowledgment

This clause establishes requirements for acknowledgment or credit of licensed works

14.1. Documentation always appears

Documentation supplied with the work in the AMICO product must always be made available.

14.1.1. Curriculum-based exceptions allowed

This requirement can be waived under specified circumstances where the appearance of documentation would impede curricular goals (e.g. testing). The licensee must keep records of all such waivers requested and/or granted for AMICO review.

14.2. Displays credit AMICO Institution

Licensees agree that credit lines which acknowledge both AMICO institutions and any underlying copyrights in the distributed works (supplied in the product), will appear with all works except in acknowledged situations, such as testing, where this interferes with curricular goals.

15. Requirements for security and monitoring

This clause establishes requirements for ensuring the security of AMICO products, as mounted on the campus network, and for monitoring access to it.

15.1. University maintains secure network

The University is responsible for exercising control over access, including local networked access, and for documenting its security practices.

15.2. User authentication

User authentication should be same as that used for licensed software and/or access to funds. Kerberos-like controls considered preferable at this time.

15.3. Policies and Procedures

Licensees must have policies and procedures for control and use of licensed products and must make the terms of licenses known to all users. Policies must include severe sanctions for willful violations by any licensed user including appropriate disciplinary processes for faculty, staff or students.

15.4. Certify users' access to AMICO Server

The university must certify users access to AMICO servers (e.g. from campus authorization service to ensure valid identification of remote users.)

16. Reporting requirements

This clause establishes requirements for reporting the level and type of use of the AMICO products.

16.1. Reporting on infringements Universities must report all known and suspected infringements of the license as soon as they are made known to university officials, together with the course of action which the University proposes to pursue with respect to known or suspected infringers. Updates should be filed on a timely basis as each case develops. Failure to report or act against violators is cause for termination of this license.

16.2. Reporting on use Universities must report classroom assigned or reserve room assigned works annually. If data is known, universities are requested to report total annual campus hits. If user and/or use categories, or item level data is collected, universities are requested to report this also. The purpose of all use reporting is to assist AMICO in planning future products to meet the needs of universities.

16.3. Universities share results of studies Universities conducting studies of usage are asked to share results with AMICO.

17. Fees This clause establishes the bases for fees paid by the University to license AMICO products.

17.1. Annual license fee Licensees will pay an annual license fee, calculated on a simple per capita basis, independent of amount of use.

17.2. Fee based on product size and features

Fees will be set on a sliding scale, based on the number of works in the product and the overhead of administering the product delivery option.

17.3. Access fees for AMICO Server

If Licensee opts to provide primary access to the product using the AMICO Server, volume based access level charges will apply to uses after a defined ïregular levelÍ of use (to be defined by the AMICO Board and calculated based on total institutional size per year).

17.3.1. Usage charges capped at annual license amount

Any use-based charges will be capped so as not to exceed 100% of the base annual license fee, in order to lend predictability to costing.

17.3.2. Server usage figures regularly reported

Server usage figures will be reported regularly to the institutional administrators.

18. Warranties and Indemnification

This clause establishes assurances on the part of the University and AMICO.

18.1. No further clearance needed for these uses

AMICO warrants that works it provides under this license do not require further rights clearance for any use authorized under this license. Other products and licenses may be offered which include works, especially by living artists, where rights are partially encumbered.

18.2. AMICO indemnifies the Licensee

AMICO indemnifies the Licensee against any infringement that falls within the bounds of the uses permitted under this license.

18.3. Licensees will seek rights for other uses

Licensees assure AMICO that they will seek rights for uses not specified in this agreement.

18.4. Licensees will act against infringers

Licensees Universities assure AMICO that they will actively enforce this agreement, and take necessary action against infringers.

18.4.1. Violations reported immediately

The University must immediately report known use violations and act against violators within framework of institutional policy.

19. Authorized Representative

This clause identifies the representatives of the parties to the agreement.

19.1. For the University

The University names its representative.

19.1.1. Secure delivery of the AMICO product

Orders for images placed through the AMICO server will be fulfilled by shipping fixed media the University representative or via system-to-system communication by a fixed and secure route

19.2. For AMICO

The management signs agreements on behalf of AMICO

20. Communications

This clause governs queries and communications regarding the agreement.

20.1. Inquiries to AMICO, not member

All inquiries regarding the terms of this agreement should be directed to AMICO, not to the contributing member.

Copyright Archives & Museum Informatics, the Art Museum Network and the Association of Art Museum Directors.

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