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Education

1. DEFINITIONS

1.1 In this Sub-Licence, the following expressions shall have the following meanings:

"Authorised Demonstrators" means nominated employees of the Licensee who may use the Licensed Product in accordance with the provisions as laid down in this Agreement free of charge for demonstration, training or administrative purposes.

"Authorised Users" means means individuals who are authorised by the Sub-Licensee to access the Sub-Licensee’s information services whether from a computer or terminal on the Sub-Licensee’s Secure Network, or off site via a modem link to a valid IP address on the Sub-Licensee’s Secure Network and who are affiliated to the Sub-Licensee as a current student, faculty member or employee of the Sub-Licensee. Persons who are not a current student, faculty member or an employee of the Sub-Licensee, but who are permitted to access the Secure Network from computer terminals within the Sub-Licensee’s Premises ["Walk-In Users"] are also deemed to be Authorised Users, only for the time they are within the Premises. Walk-In Users may not be given means to access the Licensed Work when they are not within the Premises.

"Commercial Use" means the use of the whole or parts of the Licensed Product for any reason which generates a profit.

"Daily Mirror Digital Archive", 1903-current date ("DMDA") is an electronic database of items published in The Daily Mirror between 1903-current date and all subsequent issues published.

"Daily Express Digital Archive", 1900-current date ("DEDA") is an electronic database now being created of items in the Daily Express between 1900-current date and all subsequent issues published.

"Daily Star Digital Archive", 1978-current date ("DSDA") is an electronic database now being created of items in the Daily Star between 1978-current date and all subsequent issues published

"Educational Purposes" means for the purpose of education, teaching, distance learning, private study and/or research.

"Fee" means the fee payable as set out in Services on this website by a Licensee to the Licensor to access and use the Licensed Product pursuant to this DMDA, DEDA, SEDA, DSDA and SSDA Sub-Licence Agreement.

"Intellectual Property Rights" means 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.

"Licensed Work" means the product(s) licensed in this Agreement known to the parties as ‘DMDA’, ‘DEDA’, SEDA, ‘DSDA’ and ‘SSDA’.

"Outright Purchase" means the purchase by the Licensee of a copy of a section of the DMDA, DEDA, SEDA, DSDA and/or SSDA to be held by the Sub-Licensee or to be held pro tem by Digitorial for access by the Sub-Licensee under the terms of this Agreement.

"Secure Network" means a network (whether a stand alone network or a virtual network within the Internet) which is accessible only to Authorised Users whose identities are authenticated by the Sub-Licensee at the time of log-in and periodically thereafter consistent with current best practice and whose conduct is subject to regulation by the Sub-Licensee. A cache server or other server or network which can be assessed by unauthorised users is not a Secure Network for these purposes.

"Star on Sunday Digital Archive", 2002-current date ("SSDA") is an electronic database of items in the Daily Star on Sunday between 2002-current date and all subsequent issues published

"Sunday Express Digital Archive", 1915-current date ("SEDA") is an electronic database now being created of items in the Sunday Express between 1900-current date and all subsequent issues published.

"Work" means any discrete element of the licensed product which may be identified as a single entity for the purposes of copyright and intellectual property.

1.2 Headings contained in this Agreement are for reference purposes only and shall not be deemed to be an indication of the meaning of the clause to which they relate.

1.3 Where the context so implies, words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and vice versa.

2. GRANT OF SUB-LICENCE

2.1 Digitorial hereby grants the Sub-Licensee a non-exclusive and non-transferable sub-licence to access and use the Licensed Work and to allow Authorised Users to access and use the Licensed Work throughout the term of this Agreement by means of a Secure Network for Educational Purposes only.

3. USE OF THE LICENSED WORK

3.1 Throughout the term of this Agreement the Sub-Licensee may for Educational Purposes only:

3.1.1 make local electronic copies of all or part of the Licensed Work, provided that such use is subject to all the terms and conditions of this Agreement and does not result in the making duplicate copies of the entire Licensed Work;

3.1.2 allow Authorised Users to access the Licensed Work by means of a Secure Network in order to search, view, retrieve and display, and otherwise use portions thereof;

3.1.3 allow Authorised Users to electronically save portions of the Licensed Work;

3.1.4 allow Authorised Users to print out single copies of portions of the Licensed Work;

3.1.5 allow Authorised Users to incorporate parts of the Licensed Work in printed or electronic course packs or multi-media works for the use of Authorised Users in the course of instruction. Each item shall carry appropriate acknowledgement of the source, listing title and copyright owner. Electronic copies of such items shall be deleted, when this Agreement is terminated. Course packs in non-electronic non-print perceptible form, such as Braille, may also be offered to Authorised Users;

3.1.6 allow Authorised Users to incorporate parts of the Licensed Work in printed or electronic form in assignments, portfolios and in dissertations, including reproductions of the dissertation for personal use and library deposit, if such use conforms to the customary and usual practice of the Sub-Licensee. Each item shall carry appropriate acknowledgement;

3.1.7 display, download, print parts of the Licensed Work for the purpose of promotion of the Licensed Work, testing of the product, or for training Authorised Users;

3.1.8 publicly display or publicly perform as part of a professional presentation at a seminar, conference, or workshop, or other such similar professional activity;

3.1.9 make such copies of network training material as may be required for the purpose of using the Licensed Work in accordance with this Agreement.

3.2 Nothing in this Sub-Licence shall constitute a waiver of any statutory right available and held by the Sub-Licensee from time to time under the Copyright, Designs and Patent Act 1988 or any amending legislation.

4. RESTRICTIONS

4.1 The Sub-Licensee and Authorised Users may not:

4.1.1 sell, resell, redistribute, publish or otherwise make the information contained in the Licensed Work available in any manner or on any media to any one other than an Authorised User unless the Sub-Licensee has been granted prior written consent by MGN Ltd. and/or Express Newspapers Ltd;

4.1.2 remove, obscure or modify copyright notices, text acknowledging or other means of identification or disclaimers as they appear;

4.1.3 make printed or electronic copies of multiple extracts of the Licensed Work for any purpose, beyond those authorised by this Agreement;

4.1.4 display or distribute any part of the Licensed Work on any electronic network, including without limitation the Internet and the World Wide Web, and any other distribution medium now in existence or hereinafter created, other than by a Secure Network;

4.1.5 permit anyone other than Authorised Users to access or use the Licensed Work;

4.1.6 use all or any part of the Licensed Work for any Commercial Use or for any purpose other than Educational Purposes;

4.1.7 permit the Licensed Product to be electronically transmitted to any other recipient except where the recipient is an Authorised User under the terms of this DMDA, DEDA, SEDA, DSDA, SSDA Agreement;

4.2 This Clause shall survive termination of this Agreement for any reason.

5. RESPONSIBILITIES OF THE SUB-LICENSEE

5.1 The Sub-Licensee will:

5.1.1 issue passwords or other access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not divulge their passwords or other access information to any third party;

5.1.2 use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Work by means of the Sub-Licensee’s Secure Network;

5.1.3 use all reasonable efforts to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this Sub-Licence;

5.1.4 use all reasonable efforts to monitor compliance and notify MGN Ltd. and/or Express Newspapers Ltd. and Digitorial immediately and provide full particulars on becoming aware of any of the following: (a) any unauthorised use of any of the Sub-Licensee’s password(s); or (b) any breach by an Authorised User of the terms of this Sub-Licence. Upon becoming aware of any breach of the terms of this Sub-Licence the Sub-Licensee further agrees promptly to fully investigate and initiate disciplinary procedures in accordance with the Sub-Licensee’s standard practice and use all reasonable effort to ensure that such activity ceases and to prevent any recurrence;

5.1.5 comply with all computer security procedures required by MGN Ltd. and/or Express Newspapers Ltd. and Digitorial and take all reasonable steps to ensure the security of the Licensed Work;

5.1.6 provide lists of valid IP addresses to Digitorial and update those lists on a regular basis the frequency of which will be agreed by the parties from time to time;

5.1.7 undertake promptly to substitute, delete or amend (or give Digitorial access to any copy of the database held by the Sub-Licensee to substitute, delete or amend) the Licensed Works as notified by Digitorial Ltd. or MGN Ltd. or Express Newspapers Ltd. in writing.

6. RESPONSIBILITIES OF DIGITORIAL

6.1 Digitorial shall ensure access and use of the Licensed Work in accordance with the provisions as laid down in this Agreement.

6.2 Digitorial shall cause support to be provided to the Sub-Licensee and to Authorised Users in accordance with the terms set forth in the published product description form.

7. USAGE DATA

7.1 Where and as required by the Licensee, make available or otherwise provide access to usage data which shall be compiled by the Licensor during the term of this Agreement including the provision of use statistics to be compiled on a per Licensee basis (provided always that Licensees may require such data on a monthly basis and that any collection of such data shall not conflict with any privacy and data protection laws that may from time to time apply to the parties) and deliver such data to Licensees; OR provide the means to allow the Licensee to collect such data.

8. FEE

8.1 The Licensee shall pay to the Licensor for each year of the term of this Sub-Licence a Fee. The Fee receivable from the Licensee shall be calculated in accordance with the appropriate charges as set out in Services on this website. It should be noted that by returning a signed copy of this Agreement the Licensee accepts that it is legally bound to the payment of the total fee applicable over the whole term of the Agreement. All prices are exclusive of VAT.

8.2 The Licensor will invoice the Licensee for the Fees payable and due as set out in Services, at the address set out below:

Frank Walker,
Digitorial Ltd.
Church Villas,
Ecchinswell,
Newbury,
RG20 4TT

Invoices shall be due and payable no later than thirty (30) days after being issued by the Licensor or their authorised subscription agent

9. TERM AND TERMINATION

9.1 The Term of this Agreement will commence upon the date of signature and will remain in full force and effect for a period of twelve months, unless terminated earlier as provided for in this Clause 9.

9.2 Either party may terminate this Agreement at any time on the material or persistent breach by the other of any obligation on its part under this Agreement by serving a written notice on the other identifying the nature of the breach. The termination will become effective thirty (30) days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach forthwith by written notice to the other party.

9.3 Notwithstanding anything to the contrary herein, this Agreement will automatically terminate if the DMDA Licence Agreements between Digitorial and MGN Ltd. and/or Express Newspapers Ltd. terminate for any reason. Digitorial shall make reasonable endeavours not to cause the DMDA Licence Agreement between Digitorial and MGN Ltd. and/or Express Newspapers Ltd. to terminate.

9.4 Further notwithstanding anything to the contrary herein, upon a breach by the Sub-Licensee, on-line access to the Licensed Work shall be terminated. Unless previously delivered, a copy of the section of the database bought by Outright Purchase will be delivered by Digitorial to the Sub-Licensee.

9.5 Upon termination and expiration of this Agreement, print copies of parts of the Licensed Work and Adaptations made by Authorised Institutions and Authorised Users may be retained and used subject to the terms of Clause 3 and 4 of this Agreement, which terms shall survive any termination of this Agreement. The use of electronic copies of Licensed Works not included in any Outright Purchase after the expiration or termination of this Agreement requires the authorisation from MGN Ltd. and/or Express Newspapers Ltd. and the conditions of use are not subject to this Agreement.

10. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

10.1 The Sub-Licensee acknowledges that all copyrights, patent rights, trademarks, database rights, trade secrets and other intellectual property rights relating to the Licensed Work are the sole and exclusive property of MGN Ltd. or Express Newspapers Ltd. or are duly licensed to MGN Ltd. or Express Newspapers Ltd. and that this Sub-Licence does not assign or transfer to the Sub-Licensee any right, title or interest therein except for the right to use the Licensed Work in accordance with the terms and conditions of this Agreement.

11. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

11.1 The Sub-Licensee represents and warrants that it has sufficient authority and rights to enter into and perform its obligations under this Agreement.

11.2 Digitorial represents and warrants that it has the right to grant the Sub-Licence and that the use of the Licensed Work by Authorised Users is in accordance with the terms of this Agreement shall not infringe the copyright of any third party. The foregoing shall not apply to improper usage of the Licensed Work by the Sub-Licensee or Authorised Users. Digitorial makes no representation or warranty, and expressly disclaims any liability with respect to the content of the Licensed Work 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.

11.3 Digitorial shall indemnify and keep indemnified Sub Licensee against any and all costs, claims, demands, expenses, losses and liabilities of whatsoever nature arising out of or in connection with any infringement of Intellectual Property Rights of any third party by the possession or use of the Licensed Works by Sub Licensee as permitted by this Licence The Sub-Licensee agrees to notify Digitorial and MGN Ltd. and/or Express Newspapers Ltd. immediately and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with works contained in the Licensed Work. It is expressly agreed that upon such notification, or if MGN Ltd. and/or Express Newspapers Ltd. becomes aware of such a claim from other sources, MGN Ltd. and/or Express Newspapers Ltd. may remove such work(s) from the Licensed Work. At the request of MGN Ltd. and/or Express Newspapers Ltd, the Sub-Licensee will remove such work(s) from any copies of the Licensed Work maintained by the Sub-Licensee. At Digitorial's request and expense, Sub Licensee shall permit Digitorial to conduct all negotiations and litigation in respect of the 3rd party claim. Sub Licensee shall give all reasonable assistance and Digitorial shall pay Sub Licensee’s costs and expenses incurred.

11.4 This indemnity shall not apply to infringements or breaches arising directly from the combination of the Licensed Works with other content or material not supplied under this Licence or by the use of the Licensed Works in breach of the terms of this Licence by the sub Licensee.

11.5 Subject to the above and to the extent permitted by law, Digitorial shall not be liable to the Sub-Licensee 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 Sub-Licensee as a result of an action brought by a third party.

11.6 MGN Ltd. and/or Express Newspapers Ltd. reserves the right to change the content, presentation, user facilities or availability of parts of the Licensed Work and to make changes in any software used to deliver the Licensed Work at its sole discretion. A notification will be given to the Sub-Licensee of substantial changes to the Licensed Work.

11.7 Other than the express warranties stated in this Clause 11, the Licensed Work is provided on an "as is" basis, and Digitorial disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Work or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Digitorial further expressly disclaims any warranty or representation to Authorised Users, or to any third party. Digitorial accepts no liability for loss suffered or incurred by the Authorised Institution or Authorised Users as a result of their reliance on the Licensed Work.

11.8 The Sub-Licensee represents to Digitorial that its computer system through which the Licensed Work will be used is configured, and procedures are in place, to prohibit access to the Licensed Work by any person other than an Authorised User; that it shall inform Authorised Users about the conditions of use of the Licensed Work; and that during the term of this Agreement, the Sub-Licensee will continue to make all reasonable efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.

12. FORCE MAJEURE

12.1 Either party’s failure to perform any term or condition of this Agreement as a result of circumstances beyond the control of the relevant party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities) ["Force Majeure"] shall not be deemed to be, or to give rise to, a breach of this Agreement.

12.2 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.

12.3 If the Force Majeure Event prevails for a continuous period of more than [six] months, any party may terminate this agreement by giving [30 days´] written notice to the other party. On the expiry of this notice period, this licence will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this licence occurring prior to such termination.

13. ASSIGNMENT

13.1 Neither this Agreement nor any of the rights under it may be assigned or sub-licensed by either party without obtaining the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. All the terms of this Agreement will be binding upon any permitted successor to any party.

14. GOVERNING LAW AND DISPUTE RESOLUTION

14.1 This Agreement shall be governed by and construed in accordance with English law and the parties irrevocably agree that any dispute arising out of or in connection with this Agreement will be subject to and within the jurisdiction of the English courts.

14.2 Where the parties agree that a dispute arising out of or in connection with this Agreement would best be resolved by the decision of an expert, they will agree upon the nature of the expert required and together appoint a suitable expert by agreement. In default of agreement upon whom to appoint as a suitable expert, such expert shall upon the request of either party be appointed by the Chair for the time being of the Committee of Vice-Chancellors and Principals.

14.3 Any person to whom a reference is made under Clause 14.2 shall act as expert and not as an arbitrator and his decision (which shall be given by him in writing and shall state the reasons for his decision) shall be final and binding on the parties except in the case of manifest error or fraud.

14.4 Each party shall provide the expert with such information and documentation as he may reasonably require for the purposes of his decision.

14.5 The costs of the expert shall be borne by the parties in such proportions as the expert may determine to be fair and reasonable in all circumstances or, if no determination is made by the expert, by the parties in equal proportions.

15. NOTICES

15.1 All notices required to be given under this Agreement shall be given in writing in English and sent by electronic mail, fax or first class registered or recorded delivery to the relevant addressee at its address set out below, or to such other address as may be notified by either party to the other from time to time under this Agreement, and notices shall be deemed to have been received (a) 24 hours after successful transmission in the case of electronic mail or fax; (b) fourteen (14) days after the date of posting in the case of first class registered or recorded delivery:

if to Digitorial
Frank Walker
Digitorial Ltd.
Church Villas,
Ecchinswell
Newbury
RG20 4TT

Fax: 020 3008 5441
Email: walker@digitorial.co.uk

If to the Sub-Licensee
[As stated in the Acceptance of Sub-Licence Form]

16. GENERAL

16.1 This Agreement and its Schedules constitute the entire agreement between the parties relating to the Licensed Work and supersede all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of both parties in writing.

16.2 The Schedules shall have the same force and effect as if expressly set in the body of this Agreement and any reference to this Agreement shall include the Schedules.

16.3 MGN Ltd. or Express Newspapers Ltd. may enforce the terms of this Agreement subject to and in accordance with the terms of the Agreement and the provisions of the Contract (Rights of Third Parties) Act 1999, as amended or substituted from time to time, otherwise a person who is not a party to the Agreement has no right to enforce any term of the Agreement.

16.4 The invalidity or unenforceability of any provision of this Agreement shall not affect the continuation in force of the remainder of this Agreement.

16.5 The rights of the parties arising under this Agreement shall not be waived except in writing. Any waiver of any of a party’s rights under this Agreement or of any breach of this Agreement by the other party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by either party 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.

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Library

1. DEFINITIONS

1.1 In this Agreement, the following terms shall have the following meanings:

"Authorised Demonstrators" means nominated employees of the Licensee who may use the Licensed Product in accordance with the provisions as laid down in this Agreement free of charge for demonstration, training or administrative purposes.

"Authorised Users" means individuals holding a valid Library Membership Card issued by the Licensee. This allows access to the Licensee’s information services whether from a computer or terminal on the Licensee’s Secure Network, or off site via a modem or other link to a valid IP address on the Licensee’s Secure Network, or that of the Licensor in cases where remote access is gained via this route. Persons who do not hold a current Library Membership Card issued by the Licensee or are an employee of the Licensee, shall be permitted to access the Secure Network from computer terminals within the Library Premises of the Licensee and shall be deemed to be Authorised Users, only for the time they are within said Library Premises. Such Users may not be given means to access the Licensed Product when they are not within the Licensee’s Library Premises.

"Commercial Use" means the use of the whole or parts of the Licensed Product for any reason which generates a profit.

"Daily Mirror Digital Archive", 1903-current date ("DMDA") is an electronic database of items published in The Daily Mirror between 1903-current date and all subsequent issues published.

"Daily Express Digital Archive", 1900-current date ("DEDA") is an electronic database now being created of items in the Daily Express between 1900-current date and all subsequent issues published.

"Daily Star Digital Archive", 1978-current date ("DSDA") is an electronic database now being created of items in the Daily Star between 1978-current date and all subsequent issues published

"Fee" means the fee payable as set out in Services on this website by a Licensee to the Licensor to access and use the Licensed Product pursuant to this DMDA, DEDA, SEDA, DSDA and SSDA Sub-Licence Agreement.

"Intellectual Property Rights" means 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.

"Library Premises" means the physical premises of the library or libraries operated by a Licensee including vehicles designated as mobile libraries and other physical premises from which the Licensee provides access to its library services but whose primary use may not be for the provision of library services.

"Licensed Product" means the product(s) licensed in this Agreement known to the parties as ‘DMDA’, ‘DEDA’, SEDA, ‘DSDA’ and ‘SSDA’.

"Personal Use" means for any purpose other than Commercial Use, including but not limited to education, teaching, distance learning, private study and/or research.

"Project" means the provisions of access and use of the Licensed Product by Licensees and their Authorised Users pursuant to the terms of this Agreement.

"Secure Network" means a network (whether a stand alone network or a virtual network within the Internet) which is only accessible to Authorised Users whose identities are authenticated by the Licensee, or by the licensor on behalf of the licensee, at the time of log-in and periodically thereafter consistent with current best practice and whose conduct is subject to the bye-laws and acceptable use policies of the Licensee. A cache server or other server or network which can be accessed by unauthorised users is not a Secure Network for these purposes.

"Star on Sunday Digital Archive", 2002-current date ("SSDA") is an electronic database of items in the Daily Star on Sunday between 2002-current date and all subsequent issues published.

"Sunday Express Digital Archive", 1915-current date ("SEDA") is an electronic database now being created of items in the Sunday Express between 1900-current date and all subsequent issues published.

"Work" means any discrete element of the licensed product which may be identified as a single entity for the purposes of copyright and intellectual property.

1.2 Headings contained in this Agreement are for reference purposes only and shall not be deemed to be an indication of the meaning of the clause to which they relate.

1.3 Where the context so implies, words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and vice versa.

2. LICENCE GRANT

2.1 The Licensor agrees to grant and the Licensee agrees to pay the Fee set out in Schedule 1 for a non-exclusive and non-transferable licence to access and use the Licensed Product and to allow Authorised Users to access and use the Licensed Product throughout the term of this Agreement by means of a Secure Network.

3. USE OF THE LICENSED PRODUCT

3.1 Throughout the term of this Agreement the Licensee may for all purposes proper to the execution of the licensee's activities as a public library authority:

3.1.1 make local electronic copies of parts of the Licensed Product AND/OR make local electronic copies of individual Works, or parts of Works within the Licensed Product, provided that such use is subject to all the terms and conditions of this Agreement, and does not result in the making of duplicate copies of the entire Licensed Product

3.1.2 allow Authorised Users to access the Licensed Product (and Licensed Works therein) by means of a Secure Network in order to search, view, retrieve and display, and otherwise use portions thereof. Such access may be either at Library Premises or remotely using secure login procedures;

3.1.3 allow Authorised Users to electronically save portions of the Licensed Product AND/OR Licensed Works therein subject to the same conditions as set out at 3.1.1;

3.1.4 allow Authorised Users to print out single copies of portions of the Licensed Product AND/OR Works therein subject to the same conditions as set out at 3.1.1. Copies in non-electronic, non-print perceptible form such as Braille may also be made available to Authorised Users;

3.1.5 the use of email to send copies of materials. This will be subject in particular to the requirements of 4.1.2. See 4.1.7 also.

3.1.6 display, download, print parts of the Licensed Product for the purpose of promotion of the Licensed Product, testing of the Licensed Product, or for training Authorised Users;

3.1.7 publicly display or publicly demonstrate the Licensed Product or Work as part of a professional presentation at a seminar, conference, or workshop, or other such similar professional activity;

3.1.8 make such copies of and network training material as may be required for the purpose of using the Licensed Product in accordance with this Agreement.

3.2 Nothing in this Agreement shall constitute a waiver of any statutory right available and held by the Licensee from time to time under the Copyright, Designs and Patent Act 1988 or any amending legislation.

4. RESTRICTIONS

4.1 The Licensee and Authorised Users may not:

4.1.1 sell, resell, redistribute, publish or otherwise make the information contained in the Licensed Product available in any manner or on any media to any one other than an Authorised User unless the Licensee has been granted prior written consent by MGN Ltd. or Express Group Newspapers respectively;

4.1.2 remove, obscure or modify copyright notices, text acknowledging or other means of identification or disclaimers as they appear;

4.1.3 make printed or electronic copies of multiple extracts of the Licensed Product AND/OR Licensed Works therein for any purpose, beyond those authorised by this Agreement;

4.1.4 display or distribute any part of the Licensed Product on any electronic network, including without limitation the Internet and the World Wide Web, and any other distribution medium now in existence or hereinafter created, other than by a Licensee’s Secure Network;

4.1.5 permit anyone other than Authorised Users to access or use the Licensed Product;

4.1.6 use all or any part of the Licensed Product for any purpose other than that covered by the terms of this agreement;

4.1.7 permit the Licensed Product to be electronically transmitted to any other recipient except where the recipient is an Authorised User under the terms of this DMDA, DEDA, SEDA, DSDA, SSDA Agreement;

4.2 This Clause shall survive termination of this Agreement for any reason.

5. RESPONSIBILITIES OF THE LICENSEE

5.1 The Licensee will:

5.1.1 promote and publicise the availability of the Licensed Product to target audiences

5.1.2 issue passwords or other access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not divulge their passwords or other access information to any third party;

5.1.3 use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Product by means of a Secure Network;

5.1.4 use all reasonable efforts to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this Agreement;

5.1.5 use all reasonable efforts to monitor compliance and notify Digitorial immediately and provide full particulars on becoming aware of any of the following (a) any unauthorised use of any of the Licensee's password(s); or (b) any breach by an Authorised User of the terms of this Agreement. Upon becoming aware of any breach of the terms of this Agreement the Licensee further agrees to take action in accordance with the Licensee's standard practice;

5.1.6 comply with all computer security procedures required by Digitorial and take all reasonable steps to ensure the security of the Licensed Product;

5.1.7 provide such information as is necessary on the configuration of the Secure Network to Digitorial to ensure access to the Licensed Product by the Licensee’s Authorised Users. This may include, lists of valid IP addresses where appropriate; updates to those lists on a regular basis the frequency of which will be agreed by the parties from time to time.

6. RESPONSIBILITIES OF THE LICENSOR

6.1 The Licensor agrees to:

6.1.1 provide access and allow use of the Licensed Product in accordance with the provisions as laid down in this Agreement and its Schedules attached hereto

6.1.2 allow nominated staff of the Licensee to act as Authorised Demonstrators in accordance with the provisions as laid down in this Agreement for the purpose of publicising and promoting the Licensed Product to target audiences.

6.1.3 provide the Licensee, 30 days before commencement of this Agreement, with information sufficient to enable access to the Licensed Product in accordance with the terms in this Agreement;

6.1.4 make the Licensed Product available to the Licensee and its Authorised Users at all times and on a twenty-four hour basis, ensuring a minimum of 99% availability save for routine maintenance notified in advance to the Licensee, and to restore access to the Licensed Product as soon as possible in the event of an interruption or suspension of the service. Should an unplanned interruption or suspension occur, caused by a fault on the Licensor’s hardware or software, the Licensee will be notified immediately by the licensor and an estimate of the time of restoration be given within 30 minutes of notification or the service restored within 30 minutes of notification whichever is the sooner. In the event of a loss of more than 5% of Licensed Product service availability time from the Licensor during the subscription period, the Licensee shall be reimbursed that portion of the Fees on a pro-rata basis;

6.1.5 provide sufficient server capacity and bandwidth for access by Authorised Users in order to comply with its obligations under this Agreement;

6.1.6 provide for customer support services for the Licensee via e-mail or phone, including answering e-mail inquiries relating to the use, functionality and content of the Licensed Product within 48 hours of their receipt, and telephone enquiries within the same working day;

6.1.7 provide on-site training from appropriate staff as follows: at cost by prior written agreement;

6.1.8 provide electronic product documentation free of charge. The Licensor allows copies of all documentation to be made and distributed by the Licensee provided it is either duplicated in full, or a proper ownership acknowledgement is included;

6.1.9 where and as required by the Licensee, make available or otherwise provide access to usage data which shall be compiled by the Licensor during the term of this Agreement including the provision of use statistics to be compiled on a per Licensee basis (provided always that Licensees may require such data on a monthly basis and that any collection of such data shall not conflict with any privacy and data protection laws that may from time to time apply to the parties) and deliver such data to Licensees; OR provide the means to allow the Licensee to collect such data.

In all cases, such data will follow the most recent releases of the COUNTER codes of practice at http://www.projectcounter.org/index.html and/or the International Coalition of Library Consortia (ICOLC) Guidelines for Statistical Measures of usage of Web-based Information Resources set out at http://www.library.yale.edu/consortia/webstats06.htm. As a minimum, usage data will include, number of sessions, number of queries, number of menu selections and number of full content units examined for both onsite and remote access as applicable;

6.1.10 provide access to the Licensed Product using an authentication system agreed between the Licensee and Licensor, subject to securing any necessary permissions, licences or consents (including, without limitation, any necessary permissions, licences or consents in respect of intellectual property rights).

7. SECURITY

7.1 Access to the Licensed Product by the Licensee is only permitted by means of a Secure Network and will be controlled through the use of IP addresses and/or passwords or by such other means as may be agreed by the parties from time to time.

7.2 The Licensor and Licensee shall agree computer security procedures required to ensure the security of the Licensed Product;

7.3 The Licensor reserves the right to withdraw access to the Licensed Product from the Licensee in the event of the detection by automatic of other means of abuse of the Licensed Product.

8. PAYMENT

8.1 The Licensee shall pay to the Licensor for each year of the term of this Sub-Licence a Fee. The Fee receivable from the Licensee shall be calculated in accordance with the appropriate charges as set out in Services on this website. It should be noted that by returning a signed copy of this Agreement the Licensee accepts that it is legally bound to the payment of the total fee applicable over the whole term of the Agreement. All prices are exclusive of VAT.

8.2 The Licensor will invoice the Licensee for the Fees payable and due as set out in Services, at the address set out below:

Frank Walker,
Digitorial Ltd.
Church Villas,
Ecchinswell,
Newbury,
RG20 4TT

Invoices shall be due and payable no later than thirty (30) days after being issued by the Licensor or their authorised subscription agent

9. TERM AND TERMINATION

9.1 The term of this Agreement will be for twelve (12) months, which begins on the date of this Agreement and will remain in full force and effect until the first anniversary of such date, unless terminated earlier as provided for in this Clause 9.

9.2 Either party may terminate this Agreement at any time on the material or persistent breach by the other of any obligation on its part under this Agreement by serving a written notice on the other identifying the nature of the breach. The termination will become effective thirty days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach forthwith by written notice to the other party.

9.3 This Agreement may be terminated by the Licensee on written notice if the Licensor becomes insolvent, admits insolvency or a general inability to pay its debts as they become due, has appointed a receiver or administrative receiver over it or over any part of its undertaking or assets, passes a resolution for winding up other than a bona fide plan of solvent amalgamation or reconstruction, files a petition for protection under any applicable bankruptcy code, or has filed against it or becomes subject to an insolvent petition in bankruptcy or an order to that effect.

9.4 This Agreement may be terminated by the Licensor on written notice if the Licensee is subject to a statutory reconstruction which does not provide for the continuation of the Licensee’s functions or the continuing performance of the Licensee’s obligations under this Agreement.

9.5 Upon termination or the expiry of this Agreement, the Licensor shall cease to authorise all on-line access to the Licensed Product by Authorised Users. All rights under this Agreement will be automatically terminated, except for such rights of action as will have accrued prior to such termination and any obligation which expressly or impliedly continue in force after such termination.

9.6 Upon termination of this Agreement by the Licensee due to a material breach by the Licensor, the Licensor will reimburse the Licensee a pro rata proportion of the then remaining Fee for the unexpired period of the Agreement. Such reimbursement may also take the form of agreed in-kind services. The Licensor shall not be obligated to return any portion of the Fee for termination by the Licensor due to the Licensee's breach pursuant to clause 9.2 or termination pursuant to clause 9.3 or 9.4.

10. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

10.1 The Licensee acknowledges that all copyrights, patent rights, trademarks, database rights, trade secrets and other intellectual property rights relating to the Licensed Product, are the property of the Licensor or duly licensed to the Licensor and that this Agreement does not assign or transfer to the Licensee any right, title or interest therein except for the right to use the Licensed Product in accordance with the terms and conditions of this Agreement.

11. PROPRIETARY NOTICES AND TRADE MARKS

11.1 The parties will co-operate to develop materials to be used in promoting the Project. The parties agree that neither of them will make any official press release or other formal publicity relating to the Project without first obtaining in each case the prior written consent of the other party which consent will not be unreasonably withheld or delayed.

12. REPRESENTATION, WARRANTIES AND INDEMNIFICATION

12.1 The Licensee represents and warrants that it has sufficient authority and rights to enter into and perform its obligations under this Agreement.

12.2 The Licensor warrants to the Licensee that the Licensed Product and all intellectual property rights therein are owned by or licensed to the Licensor and that the Licensed Product used as contemplated in this Agreement do not infringe any copyright or other proprietary or intellectual property rights of any natural or legal person. The Licensor agrees that the Licensee shall have no liability and the Licensor will indemnify, defend and hold the Licensee harmless against any and all damages, liabilities, claims, causes of action, attorneys' fees and costs incurred by the Licensee in defending against any third party claim of intellectual property rights infringements or threats of claims thereof with respect of the Licensee's use of the Licensed Product or any other use of the Licensed Product in accordance with this Agreement, provided that: (1) the use of the Licensed Product has been in full compliance with the terms and conditions of this Agreement ; (2) the Licensee(s) provide the Licensor with prompt notice of any such claim or threat of claim; (3) the Licensee co-operates fully with the Licensor in the defence or settlement of such claim; and (4) the Licensor has sole and complete control over the defence or settlement of such claim.

12.3 The Licensor reserves the right at any time to withdraw from the Licensed Material 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, incorrect or otherwise objectionable; to change the content, presentation, user facilities or availability of parts of the Licensed Product; and to make changes in any software used to make the Licensed Product available at their sole discretion. The Licensor will give written notice to the Licensee(s) at least thirty (30) days in advance of any anticipated specification change or withdrawal applicable to the Licensed Material except in cases where the item(s) infringes copyright or is defamatory, obscene, unlawful, incorrect or otherwise objectionable where such material may be removed without notice. In the event of withdrawal by the Licensor of the Licensed Material or any part thereof and if applicable during the 30 day period, the Licensee shall have the right to terminate the Agreement and to be made a pro rata refund of the Fee taking into account the amount of material withdrawn and the remaining unexpired period of the Agreement.

12.4 While the Licensor has no reason to believe that there are any inaccuracies or defects in the information contained in the Licensed Product, the Licensor makes no representation and gives no warranty express or implied with regard to the information contained in or any part of the Licensed Product including (without limitation) the fitness of such information or part for any purposes whatsoever and the Licensor accepts no liability for loss suffered or incurred by the Licensee(s) or Authorised Users as a result of their reliance on the Licensed Product.

12.5 In no circumstances will the Licensor be liable to the Licensee for any loss resulting from a cause over which the Licensor does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorised access, theft, or operator errors.

12.6 The Licensee agrees to notify the Licensor immediately and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with any works contained in the Licensed Product. It is expressly agreed that upon such notification, or if the Licensor becomes aware of such a claim from other sources, the Licensor may remove such work(s) from the Licensed Product. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a material breach of this Agreement.

12.7 Nothing in this Agreement shall make the Licensee liable for breach of the terms of this Agreement by any Authorised User provided that the Licensee did not cause, knowingly assist or condone the continuation of such breach after becoming aware of an actual breach having occurred.

12.8 The Licensee shall undertake to the Licensor that the computer system through which Licensed Product will be used is configured, and procedures are in place, to prohibit access to the Licensed Product by any person other than an Authorised User, that it shall inform the Authorised Users about the conditions of use of the Licensed Product, and that during the term of this Agreement, the Licensee will continue to make reasonable efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.

13. FORCE MAJEURE

13.1 Either party’s failure to perform any term or condition of this Agreement as result of circumstances beyond the control of the relevant party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities) "Force Majeure" shall not be deemed to be, or to give rise to, a breach of this Agreement.

13.2 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.

14. ASSIGNMENT

14.1 Save as permitted for under this Agreement, neither this Agreement nor any of the rights and obligations under it may be assigned or sub-licensed by either party without obtaining the prior written consent of the other party, such consent shall not unreasonably be withheld or delayed. Any permitted successors to any party shall be required to agree to be bound to the terms of this Agreement.

15. CONFIDENTIALITY

15.1 During the term of this Agreement each party may receive confidential information of the other party, including without limitation proprietary information, inventions, trade secrets, confidential know-how and other technical, business and operational information related to the development or provision of the Licensed Product or to the businesses of the parties. Except as otherwise transferred in accordance with the terms of this Agreement, and subject to the terms of section 16 below, all confidential information will remain the exclusive property of the disclosing party and neither party may disclose any confidential information of the other party to any third party for any reason without the prior written consent of such other party, nor to any of such party’s employees or staff other than those who have a need to know in order to provide the services contemplated by this Agreement.

15.2 The parties acknowledge and agree that the obligation to respect confidentiality of the other’s confidential information will survive any expiry or termination of this Agreement.

16. FREEDOM OF INFORMATION

16.1 The Licensor will note the Licensee’s obligations under the Freedom of Information Act 2000 and in particular that the Licensee may be required to provide information relating to this Agreement or the Licensor to a person in order to comply with its obligations under the Act.

16.2 The Licensor will facilitate the Licensee’s compliance with the Licensee’s obligations under the Freedom of Information Act 2000 and comply with requests from the Licensee for that purpose within 10 working days of the request being made.

16.3 For the purposes of this Agreement "confidential information" shall exclude any information that the licensee is obligated to disclose to a person under the provisions of the Freedom of Information Act 2000 and any codes of practice and guidance issued by the Government.

17. GOVERNING LAW AND DISPUTE RESOLUTION

17.1 This Agreement shall be governed by and construed in accordance with English law and the parties irrevocably agree that any dispute arising out of or in connection with this Agreement will be subject to and within the jurisdiction of the English courts.

17.2 The parties agree to make every effort to resolve disputes in an informal manner, by decision of the Head of Library Service of the Licensee, or their nominated representative and the Executive Director of the Licensor, or their nominated representative. Where the parties agree that a dispute arising out of or in connection with this Agreement would best be resolved by the decision of an expert, they will agree upon the nature of the expert required and together appoint a suitable expert by agreement.

17.3 Any person to whom a reference is made under Clause 17.2 shall act as expert and not as an arbitrator and their decision (which shall be given by them in writing and shall state the reasons for their decision) shall be final and binding on the parties except in the case of manifest error or fraud.

17.4 Each party shall provide the expert with such information and documentation as they may reasonably require for the purposes of their decision.

17.5 The costs of the expert shall be borne by the parties in such proportions as the expert may determine to be fair and reasonable in all circumstances or, if no determination is made by the expert, by the parties in equal proportions.

18. NOTICES

18.1 All notices required to be given under this Agreement shall be given in writing in English and sent by electronic mail, fax or first class registered or recorded delivery to the relevant addressee at its address set out below, or to such other address as may be notified by either party to the other from time to time under this Agreement, and all such notices shall be deemed to have been received (a) 24 hours after successful transmission in the case of electronic mail or fax; (b) fourteen (14) days after the date of posting in the case of first class registered or recorded delivery:

if to the Licensee:
As stated in the Acceptance of Sub-licence Form

if to the Licensor:
Frank Walker,
Digitorial Ltd.
Church Villas,
Ecchinswell
Newbury
RG20 4TT

Fax: 020 3008 5441
Email: walker@digitorial.co.uk

19. GENERAL

19.1 This Agreement and its Schedules constitute the entire agreement between the parties relating to the Licensed Product and supersede all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of both parties in writing.

19.2 The Schedules shall have the same force and effect as if expressly set in the body of this Agreement and any reference to this Agreement shall include the Schedules.

19.3 No provision in this Agreement is intended to be enforceable by a person who is not a party to this Agreement

19.4 The invalidity or unenforceability of any provision of this Agreement shall not affect the continuation in force of the remainder of this Agreement.

19.5 The rights of the parties arising under this Agreement shall not be waived except in writing. Any waiver of any of a party's rights under this Agreement or of any breach of this Agreement by the other party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by either party 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.

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Personal

1. DEFINITIONS

1.1 In this Sub-Licence, the following expressions shall have the following meanings:

"Authorised user" means the Sub-Licensee.

"Commercial Use" means the use of the whole or parts of the Licensed Product for any reason which generates a profit.

"Daily Mirror Digital Archive", 1903-1980 ("DMDA") is an electronic database of items published in The Daily Mirror between 1903-1980 inclusive.

"Daily Express Digital Archive", 1900-current date ("DEDA") is an electronic database now being created of items in the Daily Express between 1900-current date and all subsequent issues published.

"Daily Star Digital Archive", 1978-current date ("DSDA") is an electronic database now being created of items in the Daily Star between 1978-current date and all subsequent issues published.

"Intellectual Property Rights" means 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.

"Licensed Work" means the product(s) licensed in this Agreement known to the parties as ‘DMDA’, ‘DEDA’, SEDA, ‘DSDA’ and ‘SSDA’.

"Personal Purposes" means for the purpose of private study and/or research.

"Star on Sunday Digital Archive", 2002-current date ("SSDA") is an electronic database of items in the Daily Star on Sunday between 2002-current date and all subsequent issues published.

"Sunday Express Digital Archive", 1915-current date ("SEDA") is an electronic database now being created of items in the Sunday Express between 1900-current date and all subsequent issues published.

"Work" means any discrete element of the licensed product which may be identified as a single entity for the purposes of copyright and intellectual property.

1.2 Headings contained in this Agreement are for reference purposes only and shall not be deemed to be an indication of the meaning of the clause to which they relate.

1.3 Where the context so implies, words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and vice versa.

2. GRANT OF SUB-LICENCE

2.1 Digitorial hereby grants the Sub-Licensee a non-exclusive and non-transferable sub-licence to access and use the Licensed Work throughout the term of this Agreement for Personal Purposes only.

3. USE OF THE LICENSED WORK

3.1 Throughout the term of this Agreement the Sub-Licensee may for Personal Purposes only:

3.1.1 make local electronic copies of all or part of the Licensed Work, provided that such use is subject to all the terms and conditions of this Agreement and does not result in the making duplicate copies of the entire Licensed Work;

3.1.2 search, view, retrieve and display, and otherwise use portions thereof;

3.1.3 electronically save portions of the Licensed Work;

3.1.4 print out single copies of portions of the Licensed Work;

3.1.5 incorporate parts of the Licensed Work in printed or electronic course packs or multi-media works for personal use. Each item shall carry appropriate acknowledgement of the source, listing title and copyright owner. Electronic copies of such items shall be deleted, when this Agreement is terminated;

3.1.6 incorporate parts of the Licensed Work in printed or electronic form in assignments, portfolios and in dissertations, including reproductions of the dissertation for personal use and library deposit, if such use conforms to the customary and usual practice of the Sub-Licensee. Each item shall carry appropriate acknowledgement;

3.1.7 display, download, print parts of the Licensed Work for the purpose of promotion of the Licensed Work, testing of the product;

3.1.8 publicly display or publicly perform as part of a professional presentation at a seminar, conference, or workshop, or other such similar professional activity;

3.1.9 make such copies of network training material as may be required for the purpose of using the Licensed Work in accordance with this Agreement.

3.2 Nothing in this Sub-Licence shall constitute a waiver of any statutory right available and held by the Sub-Licensee from time to time under the Copyright, Designs and Patent Act 1988 or any amending legislation.

4. RESTRICTIONS

4.1 The Sub-Licensee may not:

4.1.1 sell, resell, redistribute, publish or otherwise make the information contained in the Licensed Work available in any manner or on any media to any one unless the Sub-Licensee has been granted prior written consent by MGN Ltd. and/or Express Newspapers Ltd;

4.1.2 remove, obscure or modify copyright notices, text acknowledging or other means of identification or disclaimers as they appear;

4.1.3 make printed or electronic copies of multiple extracts of the Licensed Work for any purpose, beyond those authorised by this Agreement;

4.1.4 display or distribute any part of the Licensed Work on any electronic network, including without limitation the Internet and the World Wide Web, and any other distribution medium now in existence or hereinafter created;

4.1.5 permit anyone other than Authorised User to access or use the Licensed Work;

4.1.6 use all or any part of the Licensed Work for any Commercial Use or for any purpose other than Personal Purposes;

4.1.7 permit the Licensed Product to be electronically transmitted to any other recipient except where the recipient is an Authorised User under the terms of this DMDA, DEDA, SEDA, DSDA, SSDA Agreement;

4.2 This Clause shall survive termination of this Agreement for any reason.

5. RESPONSIBILITIES OF THE SUB-LICENSEE

5.1 The Sub-Licensee will:

5.1.1 not divulge their passwords or other access information to any third party;

5.1.2 use all reasonable efforts to monitor compliance and notify MGN Ltd. and/or Express Newspapers Ltd. and Digitorial immediately and provide full particulars on becoming aware of any unauthorised use of any of the Sub-Licensee’s password(s);

5.1.3 comply with all computer security procedures required by MGN Ltd. and/or Express Newspapers Ltd. and Digitorial and take all reasonable steps to ensure the security of the Licensed Work;

6. RESPONSIBILITIES OF DIGITORIAL

6.1 Digitorial shall ensure access and use of the Licensed Work in accordance with the provisions as laid down in this Agreement.

6.2 Digitorial shall cause support to be provided to the Sub-Licensee in accordance with the terms set forth in the published product description form.

7. USAGE DATA

7.1 Where and as required by the Licensee, make available or otherwise provide access to usage data which shall be compiled by the Licensor during the term of this Agreement including the provision of use statistics to be compiled on a per Licensee basis (provided always that Licensees may require such data on a monthly basis and that any collection of such data shall not conflict with any privacy and data protection laws that may from time to time apply to the parties) and deliver such data to Licensees; OR provide the means to allow the Licensee to collect such data.

8. FEE

8.1 The Licensee shall pay to the Licensor for each term of this Sub-Licence a Fee in accordance with the appropriate charges as set out in Services on this website. It should be noted that by agreeing to pay the Fee the Licensee accepts that it is legally bound to the payment of the total fee applicable over the whole term of the Agreement. All prices are exclusive of VAT.

9. TERM AND TERMINATION

9.1 The Term of this Agreement will commence upon the activation of the Licensee’s account and will remain in full force and effect for the licensed period, unless terminated earlier as provided for in this Clause 9.

9.2 Either party may terminate this Agreement at any time on the material or persistent breach by the other of any obligation on its part under this Agreement by serving a written notice on the other identifying the nature of the breach. The termination will become effective no more than thirty (30) days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach forthwith by written notice to the other party.

9.3 Notwithstanding anything to the contrary herein, this Agreement will automatically terminate if the DMDA Licence Agreements between Digitorial and MGN Ltd. and/or Express Newspapers Ltd. terminate for any reason. Digitorial shall make reasonable endeavours not to cause the DMDA Licence Agreement between Digitorial and MGN Ltd. and/or Express Newspapers Ltd. to terminate.

9.4 Further notwithstanding anything to the contrary herein, upon a breach by the Sub-Licensee, on-line access to the Licensed Work shall be terminated

9.5 Upon termination and expiration of this Agreement, print copies of parts of the Licensed Work and Adaptations made by Authorised Users may be retained and used subject to the terms of Clause 3 and 4 of this Agreement, which terms shall survive any termination of this Agreement. The use of electronic copies of Licensed Works after the expiration or termination of this Agreement requires the authorisation from MGN Ltd. and/or Express Newspapers Ltd. and the conditions of use are not subject to this Agreement.

10. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

10.1 The Sub-Licensee acknowledges that all copyrights, patent rights, trademarks, database rights, trade secrets and other intellectual property rights relating to the Licensed Work are the sole and exclusive property of MGN Ltd. or Express Newspapers Ltd. or are duly licensed to MGN Ltd. or Express Newspapers Ltd. and that this Sub-Licence does not assign or transfer to the Sub-Licensee any right, title or interest therein except for the right to use the Licensed Work in accordance with the terms and conditions of this Agreement.

11. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

11.1 The Sub-Licensee represents and warrants that it has sufficient authority and rights to enter into and perform its obligations under this Agreement.

11.2 Digitorial represents and warrants that it has the right to grant the Sub-Licence and that the use of the Licensed Work by Authorised Users is in accordance with the terms of this Agreement shall not infringe the copyright of any third party. The foregoing shall not apply to improper usage of the Licensed Work by the Sub-Licensee. Digitorial makes no representation or warranty, and expressly disclaims any liability with respect to the content of the Licensed Work 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.

11.3 Digitorial shall indemnify and keep indemnified Sub Licensee against any and all costs, claims, demands, expenses, losses and liabilities of whatsoever nature arising out of or in connection with any infringement of Intellectual Property Rights of any third party by the possession or use of the Licensed Works by Sub Licensee as permitted by this Licence The Sub-Licensee agrees to notify Digitorial and MGN Ltd. and/or Express Newspapers Ltd. immediately and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with works contained in the Licensed Work. It is expressly agreed that upon such notification, or if MGN Ltd. and/or Express Newspapers Ltd. becomes aware of such a claim from other sources, MGN Ltd. and/or Express Newspapers Ltd. may remove such work(s) from the Licensed Work. At the request of MGN Ltd. and/or Express Newspapers Ltd, the Sub-Licensee will remove such work(s) from any copies of the Licensed Work maintained by the Sub-Licensee. At Digitorial's request and expense, Sub Licensee shall permit Digitorial to conduct all negotiations and litigation in respect of the 3rd party claim. Sub Licensee shall give all reasonable assistance and Digitorial shall pay Sub Licensee’s costs and expenses incurred.

11.4 This indemnity shall not apply to infringements or breaches arising directly from the combination of the Licensed Works with other content or material not supplied under this Licence or by the use of the Licensed Works in breach of the terms of this Licence by the sub Licensee.

11.5 Subject to the above and to the extent permitted by law, Digitorial shall not be liable to the Sub-Licensee 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 Sub-Licensee as a result of an action brought by a third party.

11.6 MGN Ltd. and/or Express Newspapers Ltd. reserves the right to change the content, presentation, user facilities or availability of parts of the Licensed Work and to make changes in any software used to deliver the Licensed Work at its sole discretion. A notification will be given to the Sub-Licensee of substantial changes to the Licensed Work.

11.7 Other than the express warranties stated in this Clause 11, the Licensed Work is provided on an "as is" basis, and Digitorial disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Work or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Digitorial further expressly disclaims any warranty or representation to Authorised Users, or to any third party. Digitorial accepts no liability for loss suffered or incurred by Authorised Users as a result of their reliance on the Licensed Work.

11.8 The Sub-Licensee represents to Digitorial that its computer system through which the Licensed Work will be used is configured, and procedures are in place, to prohibit access to the Licensed Work by any person other than an Authorised User; and that during the term of this Agreement, the Sub-Licensee will continue to make all reasonable efforts to bar non-permitted access.

12. FORCE MAJEURE

12.1 Either party’s failure to perform any term or condition of this Agreement as a result of circumstances beyond the control of the relevant party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities) ["Force Majeure"] shall not be deemed to be, or to give rise to, a breach of this Agreement.

12.2 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.

12.3 If the Force Majeure Event prevails for a continuous period of more than [six] months, any party may terminate this agreement by giving [30 days´] written notice to the other party. On the expiry of this notice period, this licence will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this licence occurring prior to such termination.

13. ASSIGNMENT

13.1 Neither this Agreement nor any of the rights under it may be assigned or sub-licensed by either party without obtaining the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. All the terms of this Agreement will be binding upon any permitted successor to any party.

14. GOVERNING LAW AND DISPUTE RESOLUTION

14.1 This Agreement shall be governed by and construed in accordance with English law and the parties irrevocably agree that any dispute arising out of or in connection with this Agreement will be subject to and within the jurisdiction of the English courts.

14.2 Where the parties agree that a dispute arising out of or in connection with this Agreement would best be resolved by the decision of an expert, they will agree upon the nature of the expert required and together appoint a suitable expert by agreement.

14.3 Any person to whom a reference is made under Clause 14.2 shall act as expert and not as an arbitrator and his decision (which shall be given by him in writing and shall state the reasons for his decision) shall be final and binding on the parties except in the case of manifest error or fraud.

14.4 Each party shall provide the expert with such information and documentation as he may reasonably require for the purposes of his decision.

14.5 The costs of the expert shall be borne by the parties in such proportions as the expert may determine to be fair and reasonable in all circumstances or, if no determination is made by the expert, by the parties in equal proportions.

15. NOTICES

15.1 All notices required to be given under this Agreement shall be given in writing in English and sent by electronic mail, fax or first class registered or recorded delivery to the relevant addressee at its address set out below, or to such other address as may be notified by either party to the other from time to time under this Agreement, and notices shall be deemed to have been received (a) 24 hours after successful transmission in the case of electronic mail or fax; (b) fourteen (14) days after the date of posting in the case of first class registered or recorded delivery:

if to Digitorial
Frank Walker
Digitorial Ltd.
Church Villas,
Ecchinswell
Newbury RG20 4TT

Fax: 020 3008 5441
Email: walker@digitorial.co.uk

if to the Sub-Licensee
As stated in the Sub-Licensee’s registration.

16. GENERAL

16.1 This Agreement and its Schedules constitute the entire agreement between the parties relating to the Licensed Work and supersede all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of both parties in writing.

16.2 The Schedules shall have the same force and effect as if expressly set in the body of this Agreement and any reference to this Agreement shall include the Schedules.

16.3 MGN Ltd. or Express Newspapers Ltd. may enforce the terms of this Agreement subject to and in accordance with the terms of the Agreement and the provisions of the Contract (Rights of Third Parties) Act 1999, as amended or substituted from time to time, otherwise a person who is not a party to the Agreement has no right to enforce any term of the Agreement.

16.4 The invalidity or unenforceability of any provision of this Agreement shall not affect the continuation in force of the remainder of this Agreement.

16.5 The rights of the parties arising under this Agreement shall not be waived except in writing. Any waiver of any of a party’s rights under this Agreement or of any breach of this Agreement by the other party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by either party 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.

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Business

1. DEFINITIONS

1.1 In this Sub-Licence, the following expressions shall have the following meanings:

"Authorised Demonstrators" means nominated employees of the Licensee who may use the Licensed Product in accordance with the provisions as laid down in this Agreement free of charge for demonstration, training or administrative purposes.

"Authorised Purposes" means for the purpose of private study and/or research.

"Authorised Users" means means individuals who are authorised by the Sub-Licensee to access the Sub-Licensee’s information services whether from a computer or terminal on the Sub-Licensee’s Secure Network, or off site via a modem link to a valid IP address on the Sub-Licensee’s Secure Network and who are affiliated to the Sub-Licensee as an employee of the Sub-Licensee. Persons who are not an employee of the Sub-Licensee, but who are permitted to access the Secure Network from computer terminals within the Sub-Licensee’s Premises ["Walk-In Users"] are also deemed to be Authorised Users, only for the time they are within the Premises. Walk-In Users may not be given means to access the Licensed Work when they are not within the Premises.

"Commercial Use" means the use of the whole or parts of the Licensed Product for any reason which generates a profit.

"Daily Mirror Digital Archive", 1903-1980 ("DMDA") is an electronic database of items published in The Daily Mirror between 1903-1980 inclusive.

"Daily Express Digital Archive", 1900-current date ("DEDA") is an electronic database now being created of items in the Daily Express between 1900-current date and all subsequent issues published.

"Daily Star Digital Archive", 1978-current date ("DSDA") is an electronic database now being created of items in the Daily Star between 1978-current date and all subsequent issues published

"Fee" means the fee payable as set out in Services on this website by a Licensee to the Licensor to access and use the Licensed Product pursuant to this DMDA, DEDA, SEDA, DSDA and SSDA Sub-Licence Agreement.

"Intellectual Property Rights" means 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.

"Licensed Work" means the product(s) licensed in this Agreement known to the parties as ‘DMDA’, ‘DEDA’, SEDA, ‘DSDA’ and ‘SSDA’.

"Secure Network" means a network (whether a stand alone network or a virtual network within the Internet) which is accessible only to Authorised Users whose identities are authenticated by the Sub-Licensee at the time of log-in and periodically thereafter consistent with current best practice and whose conduct is subject to regulation by the Sub-Licensee. A cache server or other server or network which can be assessed by unauthorised users is not a Secure Network for these purposes.

"Star on Sunday Digital Archive", 2002-current date ("SSDA") is an electronic database of items in the Daily Star on Sunday between 2002-current date and all subsequent issues published

"Sunday Express Digital Archive", 1915-current date ("SEDA") is an electronic database now being created of items in the Sunday Express between 1900-current date and all subsequent issues published.

"Work" means any discrete element of the licensed product which may be identified as a single entity for the purposes of copyright and intellectual property.

1.2 Headings contained in this Agreement are for reference purposes only and shall not be deemed to be an indication of the meaning of the clause to which they relate.

1.3 Where the context so implies, words importing the singular number shall include the plural and vice versa and words importing the masculine shall include the feminine and vice versa.

2. GRANT OF SUB-LICENCE

2.1 Digitorial hereby grants the Sub-Licensee a non-exclusive and non-transferable sub-licence to access and use the Licensed Work and to allow Authorised Users to access and use the Licensed Work throughout the term of this Agreement by means of a Secure Network for Authorised Purposes only.

3. USE OF THE LICENSED WORK

3.1 Throughout the term of this Agreement the Sub-Licensee may for Authorised Purposes only:

3.1.1 make local electronic copies of all or part of the Licensed Work, provided that such use is subject to all the terms and conditions of this Agreement and does not result in the making duplicate copies of the entire Licensed Work;

3.1.2 allow Authorised Users to access the Licensed Work by means of a Secure Network in order to search, view, retrieve and display, and otherwise use portions thereof;

3.1.3 allow Authorised Users to electronically save portions of the Licensed Work;

3.1.4 allow Authorised Users to print out single copies of portions of the Licensed Work;

3.1.5 allow Authorised Users to incorporate parts of the Licensed Work in printed or electronic course packs or multi-media works for the use of Authorised Users in the course of instruction. Each item shall carry appropriate acknowledgement of the source, listing title and copyright owner. Electronic copies of such items shall be deleted, when this Agreement is terminated. Course packs in non-electronic non-print perceptible form, such as Braille, may also be offered to Authorised Users;

3.1.6 allow Authorised Users to incorporate parts of the Licensed Work in printed or electronic form in assignments, portfolios and in dissertations, including reproductions of the dissertation for personal use and library deposit, if such use conforms to the customary and usual practice of the Sub-Licensee. Each item shall carry appropriate acknowledgement;

3.1.7 display, download, print parts of the Licensed Work for the purpose of promotion of the Licensed Work, testing of the product, or for training Authorised Users;

3.1.8 publicly display or publicly perform as part of a professional presentation at a seminar, conference, or workshop, or other such similar professional activity;

3.1.9 make such copies of network training material as may be required for the purpose of using the Licensed Work in accordance with this Agreement.

3.2 Nothing in this Sub-Licence shall constitute a waiver of any statutory right available and held by the Sub-Licensee from time to time under the Copyright, Designs and Patent Act 1988 or any amending legislation.

4. RESTRICTIONS

4.1 The Sub-Licensee and Authorised Users may not:

4.1.1 sell, resell, redistribute, publish or otherwise make the information contained in the Licensed Work available in any manner or on any media to any one other than an Authorised User unless the Sub-Licensee has been granted prior written consent by MGN Ltd. and/or Express Newspapers Ltd;

4.1.2 remove, obscure or modify copyright notices, text acknowledging or other means of identification or disclaimers as they appear;

4.1.3 make printed or electronic copies of multiple extracts of the Licensed Work for any purpose, beyond those authorised by this Agreement;

4.1.4 display or distribute any part of the Licensed Work on any electronic network, including without limitation the Internet and the World Wide Web, and any other distribution medium now in existence or hereinafter created, other than by a Secure Network;

4.1.5 permit anyone other than Authorised Users to access or use the Licensed Work;

4.1.6 use all or any part of the Licensed Work for any Commercial Use or for any purpose other than Educational Purposes;

4.1.7 permit the Licensed Product to be electronically transmitted to any other recipient except where the recipient is an Authorised User under the terms of this DMDA, DEDA, SEDA, DSDA, SSDA Agreement;

4.2 This Clause shall survive termination of this Agreement for any reason.

5. RESPONSIBILITIES OF THE SUB-LICENSEE

5.1 The Sub-Licensee will:

5.1.1 issue passwords or other access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not divulge their passwords or other access information to any third party;

5.1.2 use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Work by means of the Sub-Licensee’s Secure Network;

5.1.3 use all reasonable efforts to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this Sub-Licence;

5.1.4 use all reasonable efforts to monitor compliance and notify MGN Ltd. and/or Express Newspapers Ltd. and Digitorial immediately and provide full particulars on becoming aware of any of the following: (a) any unauthorised use of any of the Sub-Licensee’s password(s); or (b) any breach by an Authorised User of the terms of this Sub-Licence. Upon becoming aware of any breach of the terms of this Sub-Licence the Sub-Licensee further agrees promptly to fully investigate and initiate disciplinary procedures in accordance with the Sub-Licensee’s standard practice and use all reasonable effort to ensure that such activity ceases and to prevent any recurrence;

5.1.5 comply with all computer security procedures required by MGN Ltd. and/or Express Newspapers Ltd. and Digitorial and take all reasonable steps to ensure the security of the Licensed Work;

5.1.6 provide lists of valid IP addresses to Digitorial and update those lists on a regular basis the frequency of which will be agreed by the parties from time to time;

6. RESPONSIBILITIES OF DIGITORIAL

6.1 Digitorial shall ensure access and use of the Licensed Work in accordance with the provisions as laid down in this Agreement.

6.2 Digitorial shall cause support to be provided to the Sub-Licensee and to Authorised Users in accordance with the terms set forth in the published product description form.

7. USAGE DATA

7.1 Where and as required by the Licensee, make available or otherwise provide access to usage data which shall be compiled by the Licensor during the term of this Agreement including the provision of use statistics to be compiled on a per Licensee basis (provided always that Licensees may require such data on a monthly basis and that any collection of such data shall not conflict with any privacy and data protection laws that may from time to time apply to the parties) and deliver such data to Licensees; OR provide the means to allow the Licensee to collect such data.

8. FEE

8.1 The Licensee shall pay to the Licensor for each term of this Sub-Licence a Fee in accordance with the appropriate charges as set out in Services on this website. It should be noted that by agreeing to pay the Fee the Licensee accepts that it is legally bound to the payment of the total fee applicable over the whole term of the Agreement. All prices are exclusive of VAT.

9. TERM AND TERMINATION

9.1 The Term of this Agreement will commence upon the activation of the Licensee’s account and will remain in full force and effect for the licensed period, unless terminated earlier as provided for in this Clause 9.

9.2 Either party may terminate this Agreement at any time on the material or persistent breach by the other of any obligation on its part under this Agreement by serving a written notice on the other identifying the nature of the breach. The termination will become effective no more than thirty (30) days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach forthwith by written notice to the other party.

9.3 Notwithstanding anything to the contrary herein, this Agreement will automatically terminate if the DMDA Licence Agreements between Digitorial and MGN Ltd. and/or Express Newspapers Ltd. terminate for any reason. Digitorial shall make reasonable endeavours not to cause the DMDA Licence Agreement between Digitorial and MGN Ltd. and/or Express Newspapers Ltd. to terminate.

9.4 Further notwithstanding anything to the contrary herein, upon a breach by the Sub-Licensee, on-line access to the Licensed Work shall be terminated.

9.5 Upon termination and expiration of this Agreement, print copies of parts of the Licensed Work and Adaptations made by Authorised Institutions and Authorised Users may be retained and used subject to the terms of Clause 3 and 4 of this Agreement, which terms shall survive any termination of this Agreement. The use of electronic copies of Licensed Works after the expiration or termination of this Agreement requires the authorisation from MGN Ltd. and/or Express Newspapers Ltd. and the conditions of use are not subject to this Agreement.

10. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

10.1 The Sub-Licensee acknowledges that all copyrights, patent rights, trademarks, database rights, trade secrets and other intellectual property rights relating to the Licensed Work are the sole and exclusive property of MGN Ltd. or Express Newspapers Ltd. or are duly licensed to MGN Ltd. or Express Newspapers Ltd. and that this Sub-Licence does not assign or transfer to the Sub-Licensee any right, title or interest therein except for the right to use the Licensed Work in accordance with the terms and conditions of this Agreement.

11. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

11.1 The Sub-Licensee represents and warrants that it has sufficient authority and rights to enter into and perform its obligations under this Agreement.

11.2 Digitorial represents and warrants that it has the right to grant the Sub-Licence and that the use of the Licensed Work by Authorised Users is in accordance with the terms of this Agreement shall not infringe the copyright of any third party. The foregoing shall not apply to improper usage of the Licensed Work by the Sub-Licensee or Authorised Users. Digitorial makes no representation or warranty, and expressly disclaims any liability with respect to the content of the Licensed Work 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.

11.3 Digitorial shall indemnify and keep indemnified Sub Licensee against any and all costs, claims, demands, expenses, losses and liabilities of whatsoever nature arising out of or in connection with any infringement of Intellectual Property Rights of any third party by the possession or use of the Licensed Works by Sub Licensee as permitted by this Licence The Sub-Licensee agrees to notify Digitorial and MGN Ltd. and/or Express Newspapers Ltd. immediately and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with works contained in the Licensed Work. It is expressly agreed that upon such notification, or if MGN Ltd. and/or Express Newspapers Ltd. becomes aware of such a claim from other sources, MGN Ltd. and/or Express Newspapers Ltd. may remove such work(s) from the Licensed Work. At the request of MGN Ltd. and/or Express Newspapers Ltd, the Sub-Licensee will remove such work(s) from any copies of the Licensed Work maintained by the Sub-Licensee. At Digitorial's request and expense, Sub Licensee shall permit Digitorial to conduct all negotiations and litigation in respect of the 3rd party claim. Sub Licensee shall give all reasonable assistance and Digitorial shall pay Sub Licensee’s costs and expenses incurred.

11.4 This indemnity shall not apply to infringements or breaches arising directly from the combination of the Licensed Works with other content or material not supplied under this Licence or by the use of the Licensed Works in breach of the terms of this Licence by the sub Licensee.

11.5 Subject to the above and to the extent permitted by law, Digitorial shall not be liable to the Sub-Licensee 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 Sub-Licensee as a result of an action brought by a third party.

11.6 MGN Ltd. and/or Express Newspapers Ltd. reserves the right to change the content, presentation, user facilities or availability of parts of the Licensed Work and to make changes in any software used to deliver the Licensed Work at its sole discretion. A notification will be given to the Sub-Licensee of substantial changes to the Licensed Work.

11.7 Other than the express warranties stated in this Clause 11, the Licensed Work is provided on an "as is" basis, and Digitorial disclaims any and all other warranties, conditions, or representations (express, implied, oral or written), relating to the Licensed Work or any part thereof, including, without limitation, any and all implied warranties of quality, performance, merchantability or fitness for a particular purpose. Digitorial further expressly disclaims any warranty or representation to Authorised Users, or to any third party. Digitorial accepts no liability for loss suffered or incurred by the Authorised Institution or Authorised Users as a result of their reliance on the Licensed Work.

11.8 The Sub-Licensee represents to Digitorial that its computer system through which the Licensed Work will be used is configured, and procedures are in place, to prohibit access to the Licensed Work by any person other than an Authorised User; that it shall inform Authorised Users about the conditions of use of the Licensed Work; and that during the term of this Agreement, the Sub-Licensee will continue to make all reasonable efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.

12. FORCE MAJEURE

12.1 Either party’s failure to perform any term or condition of this Agreement as a result of circumstances beyond the control of the relevant party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities) ["Force Majeure"] shall not be deemed to be, or to give rise to, a breach of this Agreement.

12.2 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.

12.3 If the Force Majeure Event prevails for a continuous period of more than [six] months, any party may terminate this agreement by giving [30 days´] written notice to the other party. On the expiry of this notice period, this licence will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this licence occurring prior to such termination.

13. ASSIGNMENT

13.1 Neither this Agreement nor any of the rights under it may be assigned or sub-licensed by either party without obtaining the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. All the terms of this Agreement will be binding upon any permitted successor to any party.

14. GOVERNING LAW AND DISPUTE RESOLUTION

14.1 This Agreement shall be governed by and construed in accordance with English law and the parties irrevocably agree that any dispute arising out of or in connection with this Agreement will be subject to and within the jurisdiction of the English courts.

14.2 Where the parties agree that a dispute arising out of or in connection with this Agreement would best be resolved by the decision of an expert, they will agree upon the nature of the expert required and together appoint a suitable expert by agreement.

14.3 Any person to whom a reference is made under Clause 14.2 shall act as expert and not as an arbitrator and his decision (which shall be given by him in writing and shall state the reasons for his decision) shall be final and binding on the parties except in the case of manifest error or fraud.

14.4 Each party shall provide the expert with such information and documentation as he may reasonably require for the purposes of his decision.

14.5 The costs of the expert shall be borne by the parties in such proportions as the expert may determine to be fair and reasonable in all circumstances or, if no determination is made by the expert, by the parties in equal proportions.

15. NOTICES

15.1 All notices required to be given under this Agreement shall be given in writing in English and sent by electronic mail, fax or first class registered or recorded delivery to the relevant addressee at its address set out below, or to such other address as may be notified by either party to the other from time to time under this Agreement, and notices shall be deemed to have been received (a) 24 hours after successful transmission in the case of electronic mail or fax; (b) fourteen (14) days after the date of posting in the case of first class registered or recorded delivery:

if to Digitorial
Frank Walker
Digitorial Ltd.
Church Villas, Ecchinswell
Newbury
RG20 4TT

Fax: 020 3008 5441
Email: walker@digitorial.co.uk

if to the Sub-Licensee
As stated in the Sub-Licensee’s registration.

16. GENERAL

16.1 This Agreement and its Schedules constitute the entire agreement between the parties relating to the Licensed Work and supersede all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of both parties in writing.

16.2 The Schedules shall have the same force and effect as if expressly set in the body of this Agreement and any reference to this Agreement shall include the Schedules.

16.3 MGN Ltd. or Express Newspapers Ltd. may enforce the terms of this Agreement subject to and in accordance with the terms of the Agreement and the provisions of the Contract (Rights of Third Parties) Act 1999, as amended or substituted from time to time, otherwise a person who is not a party to the Agreement has no right to enforce any term of the Agreement.

16.4 The invalidity or unenforceability of any provision of this Agreement shall not affect the continuation in force of the remainder of this Agreement.

16.5 The rights of the parties arising under this Agreement shall not be waived except in writing. Any waiver of any of a party’s rights under this Agreement or of any breach of this Agreement by the other party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by either party 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.

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