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Terms and conditions of access: institutions

'Institution' means an institution or organisation that has purchased a subscription or access to a Monash University ePress or Monash University Publishing publication or has been provided with a free subscription, where access is provided by one of the following methods, defined further in clause 5 of the 'Institutional subscription licence agreement':

  • IP address
  • proxy IP range
  • trusted proxy
  • domain

Use of Monash University ePress and Monash University Publishing content by institutions is subject to the terms and conditions in the following 'Institutional subscription licence agreement'. (Monash University ePress is an imprint of Monash University Publishing.)

Institutional subscription licence agreement

1

Definitions

"Authorised Users" are current members of faculty and other staff of the Institution (whether on a permanent, temporary, contract or visiting basis) and enrolled students of the Institution, regardless of the physical location of such persons.

"Commercial Purposes" means the purposes of monetary reward (whether by or for the Institution or an Authorised User) by means of the sale, resale, loan, transfer, hire or other forms of exploitation of the Licensed Materials. For the avoidance of doubt:

  1. the payment of a fee in order to be a registered user is deemed not to constitute Commercial Purposes.
  2. neither recovery of direct costs by the Institution from Authorised Users and Walk-in-Users, nor use by the Institution, Authorised User, or Walk-in-User of the Licensed Material in the course of research funded by a commercial organisation is deemed to constitute Commercial Purposes.

"Course Packs" means a collection or compilation of materials (e.g. book chapters, journal articles) assembled by members of staff of the Institution for use by students in connection with specific courses of instruction offered by the Institution to its students.

"Date of purchase" means that date given as 'Date' on the invoice supplied by Monash University Publishing to the Institution as part of the process of purchasing the Licensed Material.

"Electronic Reserve" means electronic copies of materials (e.g. book chapters, journal articles) made and stored on the Secure Network by the Institution for use by students in connection with specific courses of instruction offered by the Institution to its students.

"Open Access" means material that Monash University Publishing has made available online to the general public free of charge.

"Monash University Publishing's Representative" means a third party appointed from time to time by Monash University Publishing to act on Monash University Publishing's behalf, who may execute this Licence on behalf of Monash University Publishing and undertake any or all of Monash University Publishing's obligations under this Licence, as agreed between Monash University Publishing and Monash University Publishing's Representative.

"Licensed Material" means the electronic version/s of the journals and/or books purchased by the Institution, and includes:

  1. back issues of purchased journals where those back issues were published online by Monash University Publishing;
  2. those portions of the Licensed Material that are Open Access.

"Secure Network" means a network (whether a standalone network or a virtual network within the Internet) which is only accessible to Authorised Users approved by the Institution whose identity is authenticated at the time of log-in and periodically thereafter consistent with current best practice, and whose conduct is subject to regulation by the Institution.

"Licence Period" means the length of usage time bought by the Institution.

"Walk-in-Users" means persons who are not Authorised Users but who are permitted users of the Institution's library or information service and who are permitted to access the Secure Network from computer terminals located within the Premises of the Institution.

2

Grant of licence

2.1

The Institution acknowledges and agrees that ownership of copyright in the Licensed Material and of rights to any trade or service marks relating to the Licensed Material remain with Monash University Publishing. Neither the Institution nor its Authorised Users or Walk-in-Users shall have any right or interest in the Licensed Materials except as expressly set forth in this Agreement.

2.2

Monash University Publishing hereby grants to the Institution a non-exclusive, revocable, non-transferable license to use the Licensed Materials and the right to provide the Licensed Materials to Authorised Users and Walk-in-Users for the same use in accordance with clause 2.8 of this Agreement, below.

2.3

The Institution shall not permit anyone other than Authorised Users and Walk-in-Users to use the Licensed Materials.

2.4 The Institution may make such local temporary copies of the Licensed Material as are necessary to ensure efficient use of the Licensed Material by Authorised Users and Walk-in-Users, provided that such use is subject to the terms and conditions of this Licence.

2.5

The Institution shall not alter, delete, make additions to, or in any way modify the Licensed Material or create derivative works based upon Licensed Material without the prior written permission of Monash University Publishing, and shall prohibit Authorised Users and Walk-in-Users from doing the same.

2.6

The Institution may not remove, obscure, or modify any copyright or other notice(s) included in the Licensed Material and shall prohibit Authorised Users and Walk-in-Users from doing the same.

2.7

The Institution may not use the Licensed Material for commercial purposes, including, but not limited to, the sale of Licensed Materials or bulk or partial reproduction or distribution of the Licensed Material in any form, and shall use all reasonable methods to prevent the Authorised Users and Walk-in-Users from using the Licensed Material for Commercial Purposes.

2.8

Use of Licensed Materials. The Licensed Materials may be used for purposes of research, education, or other noncommercial purposes as follows:

  1. Print Copy. The Institution, Authorised Users and Walk-in-Users may print only such portion(s) of the licensed materials as would qualify as fair use under the Australian Copyright Act.
  2. Archival/Backup Copy. The Institution may create copies of the Licensed Materials to be maintained as backup or archival copies. For the avoidance of doubt, access to and use of archival and backup copies shall be subject to the terms and conditions of this Licence.
  3. Electronic Links. The Institution may provide electronic links to the Licensed Materials from the Institution's web page(s), and is encouraged to do so in ways that will increase the usefulness of the Licensed Materials to Authorised Users and Walk-in-Users. The Institution may make changes in the appearance of such links and/or in statements accompanying such links as reasonably requested by Monash University Publishing.
  4. Caching. The Institution may make such local digital copies of the Licensed Materials as are necessary to ensure efficient use by Authorised Users and Walk-in-Users by appropriate browser or other software.
  5. Indices. The Institution may use the Licensed Materials in connection with the preparation of or access to integrated indices to the Licensed Materials, including author, article, abstract and keyword indices.
  6. Interlibrary Loan. The Institution may, in accordance with the copyright laws of the country in which the Institution conducts the majority of its operations, fulfill requests from other institutions, a practice commonly called Interlibrary Loan. Where the Institution is an Australian-based institution, the Institution agrees to fulfill such requests in compliance with the Australian Interlibrary Resource Sharing (ILRS) Code. The ILRS Code is available from http://alia.org.au/interlibrary.lending/ilrs.code.html
  7. Course Packs. The Institution may incorporate parts of the Licensed Materials in printed or electronic Course Pack collections for the use of Authorised Users in the course of instruction provided by the Institution, but not for Commercial Use. Where the Institution offers Course Packs to Authorised Users who have a print disability, such Course Packs may be in a format suitable for assisting such persons. Each such item shall carry appropriate acknowledgement of the source, listing title and author of the extract, title and author of the work, and the publisher.
    1. Where the Institution is an Australian-based institution, the Institution exercises its rights under clause 2.8g pursuant to Part VB of the Australian Copyright Act and any Licensed Material reproduced or copied pursuant to this clause is subject to inclusion in a CAL sample under Part VB.
    2. Any reproduction and communication of the Licensed Materials by the Institution under clause 2.8g must be solely for the educational purposes of the Institution: such use for other non-commercial purposes is expressly excluded.
  8. Electronic Reserve. The Institution may, in accordance with the copyright laws of the country in which the Institution conducts the majority of its operations, incorporate parts of the Licensed Materials in Electronic Reserve collections for the use of Authorised Users in the course of instruction at the Institution, but not for Commercial Use. Each such item shall carry appropriate acknowledgement of the source, listing title and author of the extract, title and author of the work, and the publisher. Copies of such items shall be deleted by the Institution when they are no longer used for such purpose.
    1. Any reproduction and communication of the Licensed Materials by the Institution under clause 2.8h must be solely for the educational purposes of the Institution: such use for other non-commercial purposes is expressly excluded.

2.9

Fair use. Nothing in this Agreement is intended to limit any rights the Institution, Authorised Users, and Walk-in-Users might have under the fair use provisions of the Australian Copyright Act.

3

Prohibited uses

3.1

Unauthorised Use. Except as specifically provided elsewhere in this agreement, the Institution shall not knowingly permit anyone other than Authorised Users and Walk-in-Users to use the Licensed Materials.

3.2

Modification of Licensed Materials. The Institution shall not modify or create a derivative work of the Licensed Materials without the prior written permission of Monash University Publishing.

3.3

Removal of Copyright Notice. The Institution may not remove, obscure or modify any copyright or other notices included in the Licensed Materials.

3.4

Commercial Purposes. Other than as specifically permitted in this Agreement, The Institution may not use the Licensed Materials for Commercial Purposes, including but not limited to the sale of the Licensed Materials or bulk reproduction or distribution of the Licensed Materials in any form.

4

Delivery of/Access to Licensed Materials

 

Monash University Publishing will provide the Licensed Materials to the Institution in the following manner:

Network access: The Licensed Materials will be stored at one or more locations, determined by Monash University Publishing, in digital form accessible by telecommunications links between such locations and the authorised locations of the Institution.

5

Access by and Authentication of Authorised Users and Walk-in-Users

  The Institution, its Authorised Users and Walk-in-Users shall be granted access to the Licensed Materials by one of the following methods, the chosen method being selected by the Institution as part of the online access-activation process.

5.1

IP Address. Authorised Users and Walk-in-Users are identified and authenticated by the use of Internet Protocol ("IP") address/es provided by Institution to Monash University Publishing as part of the online access-activation process.

5.2

Proxy IP Range. Authorised Users and Walk-in-Users are identified and authenticated by the use of a range of authorised proxy IP addresses provided by the Institution to Monash University Publishing as part of online the access-activation process.

5.3

Trusted Proxy. Authorised Users are identified and authenticated by the Institution behind an authorised proxy IP or range of authorised proxy IPs provided by the Institution to Monash University Publishing as part of the online access-activation process. Walk-in-Users are authenticated by the use of Internet Protocol ("IP") address/es provided by Institution to Monash University Publishing as part of the online access-activation process.

5.4

Domain. Authorised Users and Walk-in-Users are identified and authenticated by use of a domain which corresponds to a particular IP range provided by the Institution to Monash University Publishing as part of the online access-activation process.

5.5

Developing Protocols. In the event the Institution develops alternate processes of identifying and authenticating Authorised Users and Walk-in-Users during the term of this Agreement, The Institution may use such protocols only upon prior written approval by Monash University Publishing.

6

Monash University Publishing Performance

6.1

Availability of Licensed Materials. Monash University Publishing shall make all reasonable efforts to make the Licensed Materials available to Institution within a reasonable amount of time following payment by Institution.

6.2

Documentation. Monash University Publishing will make all reasonable effort to provide and maintain help files and other appropriate user documentation.

6.3

Support. Monash University Publishing will offer activation or installation support and will offer reasonable levels of continuing support to assist the Institution and Authorised Users in the use of the Licensed Materials.

6.4

Service. Monash University Publishing will make all reasonable efforts to provide service twenty-four (24) hours a day, seven (7) days a week; however, during said time, periods of downtime may occur. Down-time includes periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of additional Licensed Materials as they become available, and downtime related to the failure of equipment or services outside the control of Monash University Publishing, including, but not limited to, public or private telecommunications services or internet nodes or facilities.

6.5

Copyright. Monash University Publishing warrants to the Institution that the Licensed Materials used as contemplated by this Licence do not infringe the copyright rights of any person. Monash University Publishing shall indemnify and hold the Institution harmless from and against any loss, damage, costs, liability and expenses (including reasonable legal and professional fees) arising out of any legal action taken against the Institution claiming actual or alleged infringement of such rights. This indemnity shall not apply if the Institution has amended the Licensed Materials in any way not permitted by this Licence.

6.6

Notification of Modifications of Licensed Materials. Monash University Publishing may, from time to time, add to, modify, or delete and/or migrate portions or all of the Licensed Materials to other formats.

6.7

Withdrawal of Licensed Materials. Monash University Publishing reserves the right to withdraw from the Licensed Materials any item or part of an item for which it no longer retains the right to publish, or which it has reasonable grounds to believe infringes copyright or is defamatory, obscene, unlawful or otherwise objectionable. Monash University Publishing shall inform the Institution of such withdrawal within a reasonable amount of time following the removal of any item pursuant to this section.

7

Institution Performance

7.1

Compliance with the terms of this Agreement. The Institution will make all reasonable efforts to ensure compliance with the terms of this Agreement by its Authorised Users and Walk-in-Users, and will collaborate with Monash University Publishing where any breach of this Agreement by Authorised Users or Walk-in-Users occurs or is made known to the Institution by Monash University Publishing.

7.2

Maintaining Confidentiality of Access Passwords. Where access to the Licensed Materials is to be controlled by use of passwords, the Institution shall issue log-on identification numbers and passwords to each Authorised User and use reasonable efforts to ensure that Authorised Users do not divulge their numbers and passwords to any third party. The Institution shall use its best efforts to maintain the confidentiality of any institutional passwords provided by Monash University Publishing.

8

Mutual Performance

8.1

Confidentiality of User Data. Monash University Publishing and the Institution agree to maintain the confidentiality of any data relating to the usage of the Licensed Materials by the Institution and its Authorised Users and Walk-in-Users, unless said information must be disclosed pursuant to applicable state or federal law. Such data may be used solely for purposes directly related to the Licensed Materials and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party.

8.2

Implementation of Developing Security Protocols. The Institution and Monash University Publishing shall cooperate in the implementation of security and control protocols and procedures as they are developed by either party during the term of this Agreement.

9

Limitation of Liability

9.1

Monash University Publishing shall not be liable for any indirect, special, incidental, punitive, or consequential damages, including, but not limited to, loss of data, business interruption, or loss of profits, arising out of the use or inability to use the licensed materials, whether in contract or in tort.

9.2

Except as expressly provided in this License, Monash University Publishing makes no representations or warranties or any kind, express or implied, including but not limited to, warranties of design; accuracy of the information contained in the Licensed Materials; merchantability or fitness of use for a particular purpose. The Licensed Materials are supplied 'as is'.

9.3

Except as expressly provided for in this Agreement, under no circumstances shall Monash University Publishing or Monash University Publishing's Representative be liable to the Institution or any other person, including but not limited to Authorised Users and Walk-in-Users, for any special, exemplary, incidental or consequential damages of any character arising out of the inability to use, or the use of, the Licensed Materials. Irrespective of the cause or form of action, Monash University Publishing's aggregate liability for any claims, losses, or damages arising out of any breach of this Licence shall in no circumstances exceed the Fee paid by Institution to Monash University Publishing under this Licence in respect of the Licence Period during which such claim, loss or damage occurred. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. Regardless of the cause or form of action, the Institution may bring no action arising from this Licence more than 12 months after the cause of action arises.

10

Assignment and Transfer

 

The Institution may not transfer or assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of Monash University Publishing.

11

Governing Law

 

This Agreement shall be governed by the laws of the state of Victoria, Australia. The state courts in Victoria, Australia, or the courts of the Australian federal or commonwealth jurisdiction, where applicable, shall have jurisdiction to hear any dispute, as applicable, under this Agreement.

12

Dispute Resolution

 

If any difference arises between the parties on the meaning of this Licence or their rights and obligations, it shall first be referred to an independent expert appointed by agreement of the parties, such person being an expert with specialised skills in that matter, on such terms as the parties agree and who must be a person not having any material relationship with either of the parties (an "independent expert").

12.1

Failure to agree on an independent expert. Where any provision of this Agreement provides expressly for any matter to be determined by an independent expert and the parties fail to agree on a person within 14 days of notice from either party, then either party may refer the matter of appointment to the chief administration officer of the Dispute Settlement Centre (Victoria) with a request that a person be appointed with expertise in the matters in dispute.

12.2

The independent expert. The independent expert appointed pursuant to clause 12:

  1. in its discretion may engage one or more experts, consultants or assistants to help with its determination and the fees and other costs and expenses incurred in engaging such experts, consultants or assistants constitute part of the costs and expenses of the determination
  2. must act as an expert and not as an arbitrator and the provisions of any arbitration legislation shall not apply and Monash University Publishing and the Institution undertake to treat its determination as binding and conclusive upon them; and
  3. must within 14 days of its appointment accept submissions from both parties as to the matters for determination and must state its determination of those matters within 90 days of its appointment.

12.3

Disputes referred to arbitration. Except where agreement has been reached between the parties pursuant to clause 12, if the Agreement requires that a matter in dispute be referred to arbitration, or if any dispute or difference arises between the parties with respect to any matter arising from or in connection with the Agreement that cannot be settled by negotiation between the parties, such dispute or difference must be referred to determination by the Dispute Settlement Centre (Victoria) ('the Centre'). The parties shall pay their own arbitration costs, including incidentals.

13

Termination

13.1

This Licence shall be terminated:

  1. if the Institution [wilfully] defaults in making payment and fails to remedy such default within thirty (30) days of notification in writing by Monash University Publishing.
  2. if Monash University Publishing commits a material or persistent breach of any term of this Agreement and fails to remedy the breach (if capable of remedy) within thirty (30) days of notification in writing by the Institution
  3. if the Institution commits a wilful material and persistent breach of Monash University Publishing's copyright or other intellectual property rights or of the provisions of clauses 2 or 3
  4. if either party becomes insolvent or becomes subject to receivership, liquidation or similar external administration.

13.2

On termination, all rights and obligations of the parties automatically terminate.

13.3

On termination of this Agreement for cause as specified in clauses 13.1a and 13.1c, the Institution shall immediately cease to distribute or make available the Licensed Materials to Authorised Users and Walk-in-Users, with the exception of those portions of the Licensed Material which are Open Access.

13.4

On termination of this License by the Institution for cause as specified in clause 13.1b, Monash University Publishing shall forthwith refund the proportion of the payment that represents the paid but un-expired part of the Licence Period.
13.5 After termination of this Agreement (save for material breach by the Institution of its obligations under this Agreement), the Institution may continue to provide Authorised Users and Walk-in-Users with access to the Licensed Material as subscribed to during the Licence Period using archival or backup copies made under clause 2.8b. The Institution is further permitted to make such copies or reformat the Licensed Material contained in the archival or backup copies in any way to ensure their future preservation and accessibility in accordance with this Licence. For the avoidance of doubt, access and use of backup and archival copies mounted on the Institution's servers shall be subject to the terms and conditions of this Licence.

14

General

14.1

Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, terrorism, insurrections, labor disputes, and/or any other cause beyond the reasonable control of the party whose performance is affected.

14.2

Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall negotiate in good faith on a replacement provision designed to express the original intent of the parties in a lawful manner.

14.3

Waiver. Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.

14.4

Notices. All notices given pursuant to this Agreement shall be in writing and shall be deemed received within 14 business days after mailing if sent by registered or certified mail, return receipt requested. If any notice is sent by email or fax, confirmation copies must be sent by mail or hand delivery.

14.5

Headings. The section headings in this Agreement are used for convenience only, are not substantive, and shall not be interpreted to define, describe, or otherwise limit the interpretation of the provision under the section headings or of the Agreement as a whole.

14.6

Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior and contemporaneous communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. No amendment to this Agreement shall be effective unless it is in writing.