This License Agreement is made effective as of 1-5-2006 between Monit, the Licensor and the end user, the Authorised User.
In consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
I. Content of Licensed Materials; Grant of License
The materials that are the subject of this Agreement shall consist of electronic information published or otherwise made available by the Licensor (hereinafter referred to as the "Licensed Materials").
End User will be known as the Authorised User and shall acknowledge that the copyright and title to the Licensed Materials and any trademarks or service marks relating thereto remain with the Licensor. The Authorised User shall have no right, title or interest in the Licensed Materials except as expressly set forth in this Agreement.
Licensor hereby grants to the Authorised User non-exclusive use of the Licensed Materials and the right to use the Licensed Materials in accordance with this Agreement.
II. Delivery/Access of Licensed Materials to the Authorised User
Licensor will provide the Licensed Materials to the Authorised User in the following manner:
Network Access. The Licensed Materials will be stored at one or more Licensor locations in digital form accessible by telecommunications links between such locations and authorised networks of the Authorised User.
Physical Media. Copies of the Licensed Materials will be provided to the Authorised User on physical media (e.g., Digital Video Disk, CD-ROM, digital tape) for use on Licensee's network and workstations.
File Transfer. Copies of the Licensed Materials will be provided to the Authorised User through electronic transfer (by means of File Transfer Protocol or otherwise).
The Authorised User shall make payment to Licensor for use of the Licensed Materials pursuant to the terms set forth in Appendix A, attached hereto.
IV. Authorised Use of Licensed Materials
Authorised User. "Authorised Users" are:
Persons Affiliated with the Authorised User. Full and part time employees (including faculty, staff, and independent contractors and franchisees) of the Authorised User and the institution of which it is a part, regardless of the physical location of such persons.
Walk-ins. Patrons not affiliated with the Authorised User who are physically present at the Authorised Users site(s) ("walk-ins").
Authorised Uses. The Authorised User may make all use of the Licensed Materials as is consistent with the Fair Use Provisions of Australia and international law. Nothing in this Agreement is intended to limit in any way whatsoever any Authorised User’s rights under the Fair Use provisions of Australia or international law to use the Licensed Materials.
The Licensed Materials may not be used for purposes of research, education or other non-commercial use.
Display. The Authorised User shall not have the right to publicly display the Licensed Materials unless first authorised in writing by the Licensor.
Digitally Copy. The Authorised User may download and digitally copy a reasonable portion of the Licensed Materials under the Fair Use provisions of Australia and international law.
Print Copy. The Authorised User may print a reasonable portion of the Licensed Materials in accordance to normal business operations only.
Archival/Backup Copy. Upon the request of the Authorised User, the Licensor shall create one (1) copy of the entire set of Licensed Materials to be maintained as a backup or archival copy during the term of this Agreement or as required to exercise the Authorised User’s rights under Section XIII, "Perpetual License", of this Agreement.
Electronic Reserve. The Authorised User may not use any portion of the Licensed Materials for use in connection with specific courses of instruction unless first authorised in writing by the Licensor.
Databases. Licensed Materials are held in the form of databases, compilation, or a collection of information. The Authorised User shall be not be permitted to extract or use information contained in the database for educational, scientific, or research purposes. Use of databases including extraction and manipulation of information is provided for the purpose of normal business operations only.
Electronic Links. Licensor shall provide electronic links to the Licensed Materials from Licensor's web page(s), and will do so in ways that will increase the usefulness of the Licensed Materials to the Authorised User. Licensor staff will assist the Authorised User upon request in creating such links effectively. Licensor may make changes in the appearance of such links and/or in statements accompanying such links as necessary.
Caching. The Authorised User may make such local digital copies of the Licensed Materials as are necessary to ensure efficient use by appropriate browser or other software.
Scholarly Sharing. The Authorised User may not transmit to a third party colleague in hard copy or electronically any amounts of the Licensed Materials for personal use or scholarly, educational, or scientific research or professional use or re-sale without the Licensors written approval. In addition, the Authorised User has no right to use, figures, tables and brief excerpts from the Licensed Materials in the Authorised User's own scientific, scholarly and educational works without the Licensors written approval.
V. Access by and Authentication of the Authorised User
The Authorised User shall be granted access to the Licensed Materials pursuant to the following:
IP Addresses. The Authorised User shall be identified and authenticated by the use of Internet Protocol ("IP") addresses provided by Licensor.
Passwords. The Authorised User shall be identified and authenticated by the use of usernames and passwords assigned by Licensor. Licensor shall be responsible for issuing and terminating passwords.
Public keys/Certificates. The Authorised User shall be identified and authenticated by means of public-key and X.509 certificates.
Developing Protocols. The Authorised User shall be identified and authenticated by such means and protocols as may be developed during the term of this Agreement.
VI. Specific Restrictions on Use of Licensed Materials
Unauthorised Use. The Authorised User shall receive an activation Login Code from the Licensor to access any Licensed Material. Except as specifically provided elsewhere in this agreement The Authorised User shall not knowingly permit anyone other than the Authorised User to use the Licensed Materials.
Modification of Licensed Materials. The Authorised User shall not modify or create a derivative work of the Licensed Materials without the prior written permission of Licensor.
Removal of Copyright Notice. The Authorised User may not remove, obscure or modify any copyright or other notices included in the Licensed Materials.
Commercial Purposes. Other than as specifically permitted in this Agreement, the Authorised User may not use the Licensed Materials for commercial purposes, including but not limited to the sale of the Licensed Materials or bulk reproduction or distribution of the Licensed Materials in any form.
VII. Licensor Performance Obligations
Availability of Licensed Materials. Within 28 days from payment, Licensor shall make the Licensed Materials available to the Authorised User.
Documentation. Licensor will provide and maintain help files and other appropriate user documentation.
Support. Licensor will offer activation or installation support, including assisting with the implementation of any Licensor software. Licensor will offer reasonable levels of continuing support to assist the Authorised User in use of the Licensed Materials. Licensor will make its personnel available by email, phone or fax during normal business hours for feedback, problem-solving, or general questions.
Training. Licensor will provide appropriate training to the Authorised User relating to the use of the Licensed Materials and any Licensor software.
Quality of Service. Licensor shall use reasonable efforts to ensure that the Licensor's server or servers have sufficient capacity and rate of connectivity to provide the Authorised User with a quality of service comparable to current standards in the on-line information provision industry in the Authorised User’s locale.
Licensor shall use reasonable efforts to provide continuous service with an average of 90% up time per month. The 90% down-time includes periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of additional Licensed Materials as they become available, and downtime related to the failure of equipment or services outside the control of Licensor, including but not limited to public or private telecommunications services or internet nodes or facilities. Scheduled downtime will be performed at a time to minimize inconvenience to the Authorised User.
If the Licensed Materials fail to operate in conformance with the terms of this Agreement, the Authorised User shall immediately notify Licensor, and Licensor shall promptly use reasonable efforts to restore access to the Licensed Materials as soon as possible. In the event that Licensor fails to repair the nonconformity in a reasonable time, Licensor shall reimburse the Authorised User in an amount that the nonconformity is proportional to the total Fees owed by the Authorised User under this Agreement.
Notification of Modifications of Licensed Materials. Licensee understands that from time to time the Licensed Materials may be added to, modified, or deleted from by Licensor and/or that portions of the Licensed Materials may migrate to other formats. Licensor shall give prompt notice of any such changes to the Authorised User. Failure by Licensor to provide such reasonable notice shall be grounds for immediate termination of the Agreement by the Authorised User. If any modifications render the Licensed Materials less useful to the Authorised User, the Authorised User may treat such modifications as a material breach subject to the Early Termination provisions of this Agreement below.
Completeness of Content. Where applicable, Licensor will inform the Authorised User of instances where online content differs from the print versions of the Licensed Materials.
Where applicable, Licensor shall use reasonable efforts to ensure that the online content is at least as complete as print versions of the Licensed Materials, represents complete, accurate and timely replications of the corresponding content contained within the print versions of such Materials, and will cooperate with the Authorised User to identify and correct errors or omissions.
Continued Training. Licensor will provide regular system and project updates to the Authorised User as they become available. Licensor will not provide free of charge any additional training to the Authorised User’s staff made necessary by any updates or modifications to the Licensed Materials or any Licensor software.
Notice of "Click-Through" License Terms or Other Means of Passive Assent. In the event that Licensor requires the Authorised User to agree to terms relating to the use of the Licensed Materials before permitting the Authorised User to gain access to the Licensed Materials (commonly referred to as "click-through" licenses), or otherwise attempts to impose such terms on the Authorised User through mere use or viewing of the Authorised Materials, Licensor shall provide the Authorised User with notice of and an opportunity to comment on such terms prior to their implementation. In no event shall such terms materially differ from the provisions of this Agreement. In the event of any conflict between such terms and this Agreement, the terms of this Agreement shall prevail.
Withdrawal of Licensed Materials. Licensor reserves the right to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. Licensor shall give written notice to the Authorised User of such withdrawal no later than 7 days following the removal of any item pursuant to this section. If any such withdrawal renders the Licensed Materials less useful to Authorised User, Licensor shall reimburse the Authorised User in an amount that the withdrawal is proportional to the total Fees owed by Licensee under this Agreement.
Usage Data. Licensor shall provide to the Authorised User statistics regarding the usage of the Licensed Materials in conformance with the Guidelines for the Statistical Measures of Usage of Web-Based Indexed, Abstracted, and Full Text Resources (November 1998), adopted and approved by the International Consortium of Library Consortia.
VIII. Licensee Performance Obligations
Provision of Notice of License Terms to the Authorised User. Licensor shall make reasonable efforts to provide the Authorised User with appropriate notice of the terms and conditions under which access to the Licensed Materials is granted under this Agreement including, in particular, any limitations on access or use of the Licensed Materials as set forth in this Agreement.
Protection from Unauthorised Use. Licensee shall use reasonable efforts to inform the Authorised User of the restrictions on use of the Licensed Materials. In the event of any unauthorised use of the Licensed Materials by the Authorised User, Licensor may terminate such Authorised User's access to the Licensed Materials, (b) Licensor may terminate the access of the Internet Protocol ("IP") address(es) from which such unauthorised use occurred. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to the Authorised User (in no event less than 7 days) and cooperating with the Authorised User to avoid recurrence of any unauthorised use.
Maintaining Confidentiality of Access Passwords. Where access to the Licensed Materials is to be controlled by use of passwords, the Authorised User shall issue log-on identification numbers and passwords and use reasonable efforts to ensure that the Authorised User does not divulge their numbers and passwords to any third party. The Authorised User shall also maintain the confidentiality of any institutional passwords provided by Licensor.
IX. Mutual Performance Obligations
Confidentiality of User Data. Licensor agrees to maintain the confidentiality of any data relating to the usage of the Licensed Materials by the Authorised User. Such data may be used solely for purposes directly related to the Licensed Materials and may only be provided to third parties in aggregate form. Raw usage data, identifying specific users shall not be provided to any third party.
Implementation of Developing Security Protocols. Licensor shall cooperate in the implementation of security and control protocols and procedures as they are developed during the term of this Agreement.
This Agreement shall continue in effect until the Authorised User falls into arrears with monthly registration fees - commencing on the Effective Date.
This Agreement shall be renewable at the end of the current term for a successive monthly term unless either party gives written notice of its intention not to renew 7 days before expiration of the current term.
XII. Early Termination
In the event that either party believes that the other materially has breached any obligations under this Agreement, or if Licensor believes that the Authorised User has exceeded the scope of the License, such party shall so notify the breaching party in writing. The breaching party shall have 7 days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within 7 days, the non-breaching party shall have the right to terminate the Agreement without further notice.
Upon Termination of this Agreement online access to the Licensed Materials by the Authorised User shall be terminated. Licensor may terminate the access of the Internet Protocol ("IP") address (es). Authorised copies of Licensed Materials shall be retained by Licensor and used subject to the terms of this Agreement.
In the event of early termination permitted by this Agreement, the Authorised User shall be entitled to a pay any outstanding fees owing to Licensor for any remaining period of the Agreement from the date of termination.
XIII. Perpetual License
Except for termination for cause, Licensor hereby grants to the Authorised User nonexclusive, royalty-free, perpetual license to use any Licensed Materials that were accessible during the term of this Agreement. Such use shall be in accordance with the provisions of this Agreement, which provisions shall survive any termination of this Agreement. The means by which the Authorised User shall have access to such Licensed Materials shall be in a manner and form substantially equivalent to the means by which access is provided under this Agreement.
Subject to the Limitations set forth elsewhere in this Agreement:
Licensor warrants that it has the right to license the rights granted under this Agreement to use Licensed Materials, that it has obtained any and all necessary permissions from third parties to license the Licensed Materials, and that use of the Licensed Materials by the Authorised User in accordance with the terms of this Agreement shall not infringe the copyright of any third party. The Licensor shall indemnify and hold the Authorised User harmless for any losses, claims, damages, awards, penalties, or injuries incurred, including reasonable attorney's fees, which arise from any claim by any third party of an alleged infringement of copyright or any other property right arising out of the use of the Licensed Materials by the Authorised User in accordance with the terms of this Agreement. This indemnity shall survive the termination of this agreement. NO LIMITATION OF LIABILITY SET FORTH ELSEWHERE IN THIS AGREEMENT IS APPLICABLE TO THIS INDEMNIFICATION.
Licensor warrants that the physical medium, if any, on which the Licensed Materials is provided to the Authorised User will be free from defects for a period of 3 months from delivery.
XV. Limitations on Warranties
Notwithstanding anything else in this Agreement:
Neither party shall be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of data, business interruption, or loss of profits, fines or penalties arising out of the use of or the inability to use the Licensed Materials.
Licensor makes no representation or warranty, and expressly disclaims any liability with respect to the content of any Licensed Materials, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the disclosure of confidential information.
Except for the express warranties stated herein, the Licensed Materials are provided on an "as is" basis, and Licensor disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Materials or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Licensor makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Licensor further expressly disclaims any warranty or representation to the Authorised User, or to any third party.
Each party shall indemnify and hold the other harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable attorney's fees, which arise from any alleged breach of such indemnifying party's representations and warranties made under this Agreement, provided that the indemnifying party is promptly notified of any such claims. The indemnifying party shall have the sole right to defend such claims at its own expense. The other party shall provide, at the indemnifying party's expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request. This indemnity shall survive the termination of this Agreement.
XVII. Assignment and Transfer
Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
XIX. Dispute Resolution
In the event any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute.
XX. Force Majeure
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
XXI. Entire Agreement
This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written.
No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorised representatives of Licensor and the Authorised User.
If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
XXIV. Waiver of Contractual Right
Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
All notices given pursuant to this Agreement shall be in writing and may be hand delivered, or shall be deemed received within 7 days after mailing if sent by registered or certified mail, return receipt requested. If any notice is sent by facsimile, confirmation copies must be sent by mail or hand delivery to the specified address. Either party may from time to time change its Notice Address by written notice to the other party.
PO Box 534,
Lilydale Vic Australia 3140