DIGITAL THEATRE.COM LIMITED, a company registered in England and Wales under company number 06570330, having its registered office at 185 Park Street, London SE1 9DY, United Kingdom ("Digital Theatre").
(A) Digital Theatre is a company specializing in the creation, marketing, delivery and distribution of high quality filmed versions of theatrical productions (“Films”). Digital Theatre runs an educational website www.digitaltheatreplus.com on which Films, documentaries and other educational materials and content are made available on a subscription basis to educational institutions (the service provided to subscribers by Digital Theatre on the Digital Theatre Plus Website is referred to in this Agreement as “Digital Theatre Plus” and Digital Theatre will notify Institution if the name of the service should change).
(B) The Institution wishes to be granted a licence to the Films, documentaries and other educational materials and content made available on Digital Theatre Plus.
IT IS AGREED AS FOLLOWS
1.1 In this Agreement, the following terms shall have the following meanings:
"Authorised User" means an individual who is authorised by the Institution to have access to its information services (whether on-site or off-site) via Secure Authentication and who is:
- a current student of the Institution (including current pupils, current undergraduates, and current postgraduates as applicable);
- a member of staff of the Institution (whether permanent or temporary);
- a contractor of the Institution whose contract requires access to the Licensed Material; or
- a walk-in user: patrons not affiliated with Institution who are physically present at Institution's site(s) (“walk-ins”).
"Commercial Use" means use for the purpose of monetary reward (whether by or for the Institution or an Authorised User) by means of the sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Material.
“Digital Theatre Plus Website” means the website based at www.digitaltheatreplus.com which url may be changed by Digital Theatre from time to time.
"Educational Purposes" means use for the purpose of education, teaching, distance learning, private study and/or research.
"Intellectual Property Rights” means any patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing-off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Licence Fee" means the fee for the Licence as stated on the Order Form and paid to Digital Theatre.
“Licence Commencement Date” means the date the Institution has access to the Films under this Agreement, unless otherwise stated in the Order Form.
"Licensed Material" means the materials licensed in this Agreement and included in the service known as Digital Theatre Plus being the Films, documentaries and any other educational materials and content made available on Digital Theatre’s Website on a subscription basis via the Institution to Authorised Users.
“Material Breach” means a breach that substantially deprives the non-breaching party of the principal benefit of this agreement or that causes the non-breaching party to suffer irreparable or significant harm, such as but not limited to: non-payment of fees, a breach of the restrictions listed in Clause 4 or Intellectual Property Rights listed in Clause 9.
"Metadata" means information about one or more aspects of the data, such as:
- Mode and method of creation of the data
- Purpose of the data
- Time and date of creation
- Creator or author of the data
- Location on a computer network where the data were created
- Standards used.
For example, a digital image may include metadata that describe how large the picture is, the colour depth, the image resolution, when the image was created, and other data. A text document's metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.
"Modifications" means alterations, additions to, deletions from, manipulations and/or modifications of parts of the Metadata supplied by Digital Theatre in accordance with section 21 of the United Kingdom’s Copyright, Designs and Patents Act 1988.
"Modify" means to alter, add to, delete from, manipulate and/or modify parts of the Metadata.
“Order Form” means the form on Digital Theatre Plus Website through which Institution places a request for access to the Licensed Material as described in more detail in Clause 2.
"Secure Authentication” means using either a secure intranet or the public internet under the protection of a password or other security mechanism providing access limited to Authorised Users.
“Secure Network" means a network which is only accessible to Authorised Users by Secure Authentication.
2. LICENSE GRANT
2.1 To request a licence to the Licensed Material, Institution must fill out the Order Form on the Digital Theatre Plus Website stating the desired date for the licence to start. Digital Theatre will review the Order Form and Institution’s request and confirm acceptance or not to Institution within 72 hours of receipt of the Order Form via e-mail.
2.2 On acceptance of Institution’s Order Form, Digital Theatre grants to the Institution, subject to and in accordance with the terms of the Order Form and this Agreement, a non-exclusive non-transferable, limited licence to access and use the Licensed Material and to allow Authorised Users where applicable to access and use the Licensed Material on the Digital Theatre Plus Website via Secure Authentication and for Educational Purposes.
3. PERMITTED USES
3.1 This Agreement permits the Institution to, for Educational Purposes only, and ensuring that at all times each item shall carry appropriate acknowledgement of the source and copyright owner:
3.1.1 display, download and print those parts of the Licensed Material which are made available on the Digital Theatre Plus Website as downloadable PDF documents (for the avoidance of doubt this excludes any audio visual material) for the purpose of promoting or testing the Licensed Material or for training Authorised Users or at the request of Authorised Users;
3.1.2 make and distribute copies of training material as may be required for the purpose of using the Licensed Material in accordance with this Agreement;
3.1.3 mount and use Metadata in bespoke and commercially available library systems to manage library operations;
3.1.4 allow Authorised Users, for Educational Purposes only to:
(a) access the Licensed Material by Secure Authentication in order to search, retrieve, display and view the Licensed Material as permitted on the Digital Theatre Plus Website;
(b) modify the Metadata and create new Metadata of the Licensed Material;
(c) electronically save those parts of the Licensed Material which are made available on the Digital Theatre Plus Website as downloadable PDF documents;
(d) print out single copies of those parts of the Licensed Material which are made available on Digital Theatres’ Website as downloadable PDF documents;
(e) incorporate parts of the Licensed Material which are made available on the Digital Theatre Plus Website as downloadable PDF documents and or links to other parts of the Licensed Material in printed and electronic course packs to be used in the course of instruction and/or in virtual learning environments hosted on a Secure Network. Authorised Users must specify the title and copyright owner of the Licensed Material used in the course packs. Course packs in other formats, such as Braille, may also be offered to Authorised Users;
(f) incorporate those parts of the Licensed Material which are made available on the Digital Theatre Plus Website as downloadable PDF documents in printed or electronic form in assignments and portfolios, theses and in dissertations (“the Academic Works”), and to make reproductions of the Academic Works for personal use and library deposit; and
(g) use the Licensed Material to perform and engage in text mining/data mining activities solely for academic research and Educational Purposes.
3.2 This Agreement shall be deemed to complement and extend the rights of the Institution and Authorised Users under the United Kingdom’s Copyright, Designs and Patents Act 1988 and Copyright (Visually Impaired Persons) Act 2002 and nothing in this Agreement shall constitute a waiver of any statutory rights held by the Institution and Authorised Users from time to time under these Acts or any amending legislation.
4.1 Except where this Agreement states otherwise, the Institution and Authorised Users may not:
4.1.1 sell or resell the Licensed Material, Metadata and/or Modifications unless Digital Theatre has given the Institution or an Authorised User specific prior permission in writing to do so;
4.1.2 remove, obscure or alter copyright notices, acknowledgments or other means of identification or disclaimers other than Metadata;
4.1.3 alter or adapt the Licensed Material (save for Metadata), except to the extent necessary to make it perceptible on a computer screen, or as otherwise allowed under this Agreement. For the avoidance of doubt, no alteration of the words or the order of audio visual material is allowed;
4.1.4 display or distribute any part of the Licensed Material on any electronic network, including the internet other than by a Secure Network;
4.1.5 use all or any part of the Licensed Material for any Commercial Use or for any purpose other than Educational Purposes; and
4.1.6 provide access and/or allow use of the Licensed Material by anyone other than Authorised Users.
4.2 This Clause will continue to apply after termination of this Agreement for any reason.
5. RESPONSIBILITIES OF DIGITAL THEATRE
5.1 Digital Theatre agrees to use reasonable endeavours to:
5.1.1 make the Licensed Material available to the Institution and Authorised Users following acceptance of this Agreement by both parties and continued availability of the Licensed Material will be dependent upon Institution paying the Licence Fee in cleared funds by the date requested of them;
5.1.2 make the Licensed Material available to the Institution and Authorised Users 24 hours a day (except when routine maintenance is carried out), and to restore access to the Licensed Material as soon as possible after any interruption or suspension of the Digital Theatre Plus service;
5.1.3 provide customer support services relating to the Digital Theatre Plus service to Authorised Users by e-mail or over the phone during normal working hours in the United Kingdom. Customer support on phone is from 9.00 am to 5.00 pm on business days UK time. Digital Theatre will respond to all customer enquiries via email within 24 hours;
5.1.4 provide such electronic product documentation (for example: user guides and promotional materials) to the Institution free of charge as Digital Theatre shall have available. Digital Theatre will allow copies of all such documentation to be made and distributed by the Institution to Authorised Users provided it is either duplicated in full, or a proper ownership acknowledgement is included.
6. RESPONSIBILITIES OF INSTITUTION
6.1 The Institution agrees to:
6.1.1 give passwords or other secure access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not give their passwords or other Secure Authentication information to anyone else;
6.1.2 provide lists of valid IP addresses to Digital Theatre and update those lists regularly as agreed by the parties from time to time;
6.1.3 use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Material;
6.1.4 use all reasonable efforts to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this Agreement; and
6.1.5 use all reasonable efforts to work with Digital Theatre to monitor compliance with the terms of this Agreement and notify Digital Theatre immediately and provide full particulars on becoming aware of any of the following:
(a) any unauthorised access to or use of the Licensed Material or unauthorised use of any of Institution's password(s); or
(b) any breach by itself or an Authorised User of the terms of this Agreement.
As soon as the Institution is aware of any breach of the terms of this Agreement by itself or an Authorised User, the Institution further agrees promptly to fully investigate and initiate procedures in accordance with the Institution's standard practice and use all reasonable efforts to ensure that such activity ceases and to prevent any recurrence.
6.2 The Institution undertakes to Digital Theatre that the computer system through which the Digital Theatre Plus Website and therefore the Licensed Material will be used is configured, and procedures are in place, to prohibit access to the Licensed Material by any person other than an Authorised User, that it shall inform the Authorised Users about the conditions of use of the Licensed Material including using a Secure Authentication process, and that during the term of this Agreement, the Institutions will make best efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.
6.3 The Institution shall be liable to Digital Theatre for any damages arising from any breach by the Institution of this Clause 6.
7. LICENCE FEE
7.1 The Institution will, within 30 days of receipt of Digital Theatre’s acceptance of Institution’s signed Order Form, pay the Licence Fee to Digital Theatre for the rights granted to the Licensed Material for the amount and upon terms agreed amongst and between the Institution and Digital Theatre.
7.2 Payments to Digital Theatre shall be made by wire transfer to:
Sort Code: 20-78-98
Account name: Digital Theatre
Account number: 23030741.
8. TERM AND TERMINATION
8.1 This Agreement will be effective from the date Institution receives Digital Theatre’s acceptance of Institution’s signed Order Form and the term of this Agreement will be for the term specified in the Order Form (the “Initial Term”) and will remain in full force and effect for the duration of that term, unless terminated earlier or extended as provided for in this Clause 8.
8.2 This Agreement may continue automatically beyond the end of the Initial Term on the same terms but subject to License Fee increases on three (3) months’ notice by Digital Theatre (with the Institution retaining the ability to terminate at the end of the Initial Term if it does not agree to the Licence Fee increase), unless (a) either party sends at least three (3) months’ written notice to the other stating that they do not wish the agreement to continue beyond the Initial Term; or (b) the Agreement has been terminated in accordance with this Clause 8.
8.3 The Institution may cancel their subscription, and therefore terminate this Agreement, within 30 days of signing the Order Form, for any reason. If the Licence Fee has been paid to Digital Theatre prior to the cancellation, Digital Theatre will reimburse the Institution with the Licence Fee in full. The Institution may not cancel their subscription more than 30 days after signing the Order Form.
8.4 Either Digital Theatre or the Institution may terminate this Agreement at any time for a Material Breach 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 and confirms this by written notice to the other party who shall, acting reasonably and without unnecessary delay, confirm the breach has been satisfactorily remedied.
8.5 Upon termination of this Agreement by Digital Theatre due to a Material Breach Digital Theatre shall have the right to immediately cease to authorise online access to the Licensed Material by the Institution and Authorised Users and the Institution shall immediately pay any License Fees owing to Digital Theatre, but in the event that License Fees have been paid in advance, the Institution shall not be entitled to any refund of such License Fees. The Institution and its Authorised Users shall not use any of the copies made of the Licensed Material after the date of termination and the Institution shall be responsible for destroying all such copies of the Licensed Material and, if so requested by Digital Theatre, shall send a certificate confirming the destruction to Digital Theatre.
8.6 Upon termination of this Agreement by the Institution due to a Material Breach by Digital Theatre under Clause 8.3, the Institution (i) shall have the right to a pro-rata refund of 50% of the Licence Fee for any term of the licence remaining (for example: if the termination occurs at 6 months into the 12 month term, there will be 50% of the term remaining and the Institution will be reimbursed 25% of the Licence Fee) and (ii) shall cease to authorise online access to the Licensed Material by the Institution and Authorised Users.
9. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
9.1 The Institution acknowledges and agrees that all Intellectual Property Rights in the Licensed Material are either the sole and exclusive property of Digital Theatre or are duly licensed to Digital Theatre and that this Agreement does not assign or transfer to the Institution any right, title or interest except for the right to access and use the Licensed Material in accordance with the terms and conditions of this Agreement.
9.2 The Institution acknowledges and agrees that Digital Theatre may suspend access to the Licensed Material with notice in the event of any breach or suspected breach of this Agreement by the Institution or Authorised Users (including any suspected or actual infringement of Digital Theatre’s Intellectual Property Rights) until such time as any issue has been determined and resolved.
9.3 The Institution acknowledges and agrees that Digital Theatre shall have the right to alter, replace or remove any part of the Licensed Material, in the event that such part of the Licensed Material might breach Digital Theatre’s agreement with one or more of its partner archives or might involve any rights clearance issues. Digital Theatre shall be entitled to remove such content at short notice and any replacement materials shall then be deemed to form part of the Licensed Material.
10. REPRESENTATION and WARRANTIES
10.1 Digital Theatre warrants to the Institution to the best of its knowledge that the Licensed Material and all Intellectual Property Rights therein are owned by or licensed to Digital Theatre and that the Licensed Material used as contemplated in this Agreement does not infringe any third party Intellectual Property Rights, subject to Clauses 9.2 and 9.3.
10.2 While Digital Theatre has no reason to believe that there are any inaccuracies or defects in the information contained in the Licensed Material, Digital Theatre makes no representation and gives no warranty express or implied with regard to the information contained in or any part of the Licensed Material including (without limitation) the fitness of such information or part for any purposes whatsoever and Digital Theatre accepts no liability for loss suffered or incurred by the Institution or Authorised Users as a result of their reliance on the Licensed Material.
10.3 In no circumstances will Digital Theatre be liable to the Institution for any loss resulting from a cause over which Digital Theatre 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.
10.4 The Institution agrees to notify Digital Theatre 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 Material and do all things reasonably required to assist Digital Theatre in such claims. It is expressly agreed that upon such notification, or if Digital Theatre becomes aware of such a claim from other sources, Digital Theatre may remove such work(s) from the Licensed Material. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a Material Breach of this Agreement.
10.6 Except as provided for in Clause 6.3 or Clause 10.1, neither the Institution nor Digital Theatre will be liable to the other in contract or negligence or otherwise for:
10.6.1 any special, indirect, incidental, punitive or consequential damages;
10.6.2 loss of direct or indirect profits, business, contracts, revenue or anticipated savings; or
10.6.3 for any increased costs or expenses.
10.7 No party limits its liability for:
10.7.1 death or personal injury to the extent it results from its negligence, or of its employees or agents in the course of their engagement; and
10.7.2 its own fraud or that of its employees or agents in the course of their engagement.
11. FORCE MAJEURE
11.1 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.
11.2 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.
12.1 Except as permitted for under this Agreement, neither this Agreement nor any of the rights and obligations under it may be assigned by the Institution without obtaining the prior written consent of Digital Theatre, such consent shall not unreasonably be withheld or delayed. In any permitted assignment by Institution, the Institution shall procure and ensure that the assignee shall assume all rights and obligations of the Institution under this Agreement and agrees to be bound to all the terms of this Agreement.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 In relation to the operation of this Agreement and as between each other, the parties shall conduct themselves in good faith.
13.2 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
13.2 Any disagreement about the operation of this Agreement shall be settled by the matter being promptly referred to a senior executive from each of the parties, authorised to agree a solution. The senior executives shall have 30 days from the raising of the disagreement to discuss and resolve the matter. If the senior executives cannot resolve the matter it shall be referred for resolution to an arbitrator from the London Court of International Arbitration agreed by the parties. The expert shall act as an amicable mediator and each of the parties shall in good faith co-operate with his reasonable requests. If the expert is unable to mediate a resolution within 60 days of his appointment, either of the parties may resort to formal legal action.
14.1 All notices required to be given under this Agreement shall be given in writing in English and sent by courier, email or special delivery to the relevant addressee at its address set out below, or to such other address as may be notified from time to time under this Agreement, and all such notices shall be deemed to have been received three (3) days after the date of posting in the case of special delivery or dispatch in the case of courier:
if to the Institution: the address notified by the Institution
if to Digital Theatre: Digital Theatre.com Limited
185 Park Street, London SE1 9DY
Attention: Frank Hyman/Michael Allen
15.1 This Agreement and its Schedules constitute the entire agreement between the parties relating to the Licensed Material 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.
15.2 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.
15.3 The provisions of this Agreement are separable and, if any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.
15.4 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.