Version 1.6 09/08/10
DATED
2012
THE JISC CONTENT PROCUREMENT COMPANY LIMITED
(TRADING AS JISC COLLECTIONS)
-andBIRMINGHAM CITY UNIVERSITY
-andUNIVERSITY OF MANCHESTER
-andCRANFIELD UNIVERSITY
-and –
INSTITUTION
________________________________________
JISC JOURNAL USAGE STATISTICS PORTAL SERVICE PARTICIPATION
________________________________________
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JISC JOURNAL USAGE STATISTICS PORTAL SERVICE PARTICIPATION
THIS DEED is made
day of
2012
BETWEEN: THE JISC CONTENT PROCUREMENT COMPANY LIMITED
(TRADING AS JISC COLLECTIONS) (Company Number
05747339), a company incorporated in England and Wales and limited
by guarantee whose registered offices is at Ground Floor, Brettenham
House South, Lancaster Place, London WC2E 7EN ("JISC
Collections").
AND
BIRMINGHAM CITY UNIVERSITY acting through Evidence
Base, Library and Learning Resources, Perry Barr, Birmingham, B42
2SU
AND
THE UNIVERSITY OF MANCHESTER acting through Mimas of
Faculty of Humanities, Oxford Road, Manchester, M13 9PL
AND
CRANFIELD UNIVERSITY of Cranfield, Bedfordshire, MK43 0AL
(referred collectively as "the Consortium")
AND
[INSTITUTION]
RECITALS
WHEREAS the Consortium has been awarded funding by JISC for the Service called
“Journal Usage Statistics Portal”;
AND WHEREAS Journal Usage Statistics Portal is the name of the portal which
gathers COUNTER compliant usage statistics from mainly NESLi2 publishers for use
by participating NESLi2 libraries to analyse usage data across titles;
AND WHEREAS the Consortium partners have entered into a Consortium
Agreement for the Journal Usage Statistics Portal Service which sets out the activities
and responsibilities of each partner in the Consortium;
AND WHEREAS the Consortium has contacted the publishers participating in
NESLi2 for their co-operation in the Journal Usage Statistics Portal Service and has
signed agreements with those publishers that have agreed to participate;
AND WHEREAS the parties are desirous of reaching agreement for the Consortium
to collect the COUNTER-compliant Usage Statistics (as hereafter defined) of the
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Institution from the participating publisher’s websites on their behalf for the purposes
and on the terms and conditions as set out in this Deed.
IT IS AGREED AS FOLLOWS
1.
DEFINITIONS
1.1
In this Deed, the following terms shall have the following meanings:
“COUNTER-compliant Usage Statistics” means usage data compliant with the
latest version of the COUNTER
Standards
"Institutions"
means such NESLI2-eligible institutions
that have agreed to use the service and
have signed an agreement with the
Consortium in which they have given
their permission to the Consortium to
collect
their
COUNTER-compliant
Usage Statistics on their behalf from the
Publisher.
"Service"
means the JISC Journal Usage Statistics
Portal
"SUSHI Protocol"
means the Standardized Usage Statistics
Harvesting Initiative (SUSHI) Protocol
standard (ANSI/NISO Z39.93-2007)
which defines an automated request and
response model for the harvesting of
electronic resource usage data utilizing a
Web services framework.
1.2
Headings contained in this Deed 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.
THE AGREEMENT
2.1
The Institution hereby agrees to permit the Consortium to collect COUNTERcompliant Usage Statistics on their behalf from NESLi2 publisher’s websites
for use in the Journal Usage Statistics Portal Service in accordance with this
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Deed. The Consortium hereby agrees to perform the activities as set out in
Clauses 3 and 4 in accordance with this Deed.
3.
PERMITTED USES/ACTIVITIES
3.1
The Institution hereby agrees to:
3.1.1. permit the Consortium to include its COUNTER-compliant Usage
Statistics in the database created for the Journal Usage Statistics Portal
Service;
3.1.2
permit the Consortium to display the COUNTER-compliant Usage
Statistics via the Journal Statistics Portal Service;
3.1.2
permit the Consortium to show the COUNTER-compliant Usage
Statistics to other participating libraries in the Journal Usage Statistics
Portal Service for benchmarking purposes, where permitted by
participating Publishers; and
3.1.3
be identified in the Journal Usage Statistics Portal Service by: (1)
institutional name; (2) JISC Band and (3) institutional group.
4.
RESPONSIBILITIES OF THE CONSORTIUM
4.1
The Consortium agrees to:
4.1.1
only provide access to any COUNTER-compliant Usage Statistics
collected by the Consortium to authorized users from other
participating institutions in the Journal Usage Statistics Portal Service
and the Consortium partners;
4.1.2
use authentication for access to the Journal Usage Statistics Portal
Service; and
4.1.3
permit JISC Collections to use the COUNTER-compliant Usage
Statistics in the Journal Usage Statistics Portal Service database for
negotiation purposes with publishers within the framework of NESLi2.
5.
TERM AND TERMINATION
5.1
The term of this Deed will be for three (3) years, which begins on 1 August
2010 and will remain in full force and effect until 31 July 2013 unless
terminated earlier as provided for in this Clause 5.
5.2
The Institution may terminate this Deed at any time on the material breach or
repeated other breaches by the Consortium or any of its partners of any
obligation on its part under this Deed by serving a written notice on the other
identifying the nature of the breach. The termination will become effective
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thirty (30) days after receipt of the written notice unless during the relevant
period of thirty (30) working days the defaulting party remedies the breach
forthwith by written notice to the other party.
5.3
Upon termination, the COUNTER-compliant Usage Statistics collected by the
Consortium prior to such termination may be retained and used by the
Consortium in accordance with this Deed.
6.
FORCE MAJEURE
6.1
Any party’s failure to perform any term or condition of this Deed 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 Deed.
6.2
If any party to this Deed is prevented or delayed in the performance of any of
its obligations under this Deed 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.
7.
ASSIGNMENT
7.1
Save as permitted under this Deed, neither this Deed nor any of the rights and
obligations under it may be sub-contracted or assigned by any party without
obtaining the prior written consent of the other parties. The other Parties shall
not unreasonably withhold such written consent. In any permitted assignment,
the assignor shall procure and ensure that the assignee shall assume all rights
and obligations of the assignor under this Deed and agrees to be bound to all
the terms of this Deed.
8.
DATABASE RIGHTS
The Institution hereby agrees that any database rights created by the
Consortium as part of the JISC Journal Usage Statistics Portal Service shall be
the ownership of University of Manchester.
9.
GOVERNING LAW AND DISPUTE RESOLUTION
9.1
This Deed shall be governed by and construed in accordance with English law
and the parties irrevocably agree that any dispute arising out of or in
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connection with this Deed will be subject to and within the exclusive
jurisdiction of the English courts.
9.2
The parties agree to use best efforts to resolve disputes in an informal manner,
by decision of the Chief Executive Officer of JISC Collections and the
Institution. Where the parties agree that a dispute arising out or in connection
with this Deed 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.
9.3
Any person to whom a reference is made under Clause 9.2 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.
9.4
Each party shall provide the expert with such information and documentation
as he may reasonably require for the purposes of his decision.
9.5
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.
10.
NOTICES
10.1
All notices required to be given under this Deed 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 Deed, and all such notices shall be deemed to have been received (a)
twenty-four (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 Consortium:
Lorraine Estelle
Chief Executive Officer
JISC Collections
Brettenham House South
5 Lancaster Place
London WC2E 7EN
Email: l.estelle@jisc.ac.uk
if to the Institution
[insert details here]
11.
GENERAL
11.1
This Deed and its Schedules constitute the entire Deed between the parties and
supersede all prior communications, understandings and agreement (whether
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written or oral) relating to its subject matter and may not be amended or
modified except by agreement of both parties in writing.
11.2
The Schedules shall have the same force and effect as if expressly set in the
body of this Deed and any reference to this Deed shall include the Schedules.
11.3
The invalidity or unenforceability of any provision of this Deed shall not
affect the continuation in force of the remainder of this Deed.
11.4
The rights of the parties arising under this Deed shall not be waived except in
writing. Any waiver of any of a party's rights under this Deed or of any breach
of this Deed by the other party shall not be construed as a waiver of any other
rights or of any other or further breach. Failure by any party to exercise or
enforce any rights conferred upon it by this Deed 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.
11.5
Nothing in this Deed shall be construed to create any relationship of
partnership, agency or employment between any of the parties.
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IN WITNESS WHEREOF THE PARTIES HERETO HAVE EXECUTED THIS
DEED ON THE DATE FIRST WRITTEN ABOVE:
[Institution]
SIGNED AS A DEED by [NAME]
________________________
Position:
(Signature)
In the presence of:
_________________________
Position:
(Signature)
Address:
JISC Collections
SIGNED AS A DEED by [NAME]
________________________
Position:
(Signature)
In the presence of:
_______________________
(Signature)
Position:
Address:
Birmingham City University
SIGNED AS A DEED by [NAME]
________________________
Position:
(Signature)
In the presence of:
_______________________
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(Signature)
Position:
Address:
Cranfield University
SIGNED AS A DEED by [NAME]
________________________
Position:
(Signature)
In the presence of:
_______________________
(Signature)
Position:
Address:
University of Manchester
SIGNED AS A DEED by [NAME]
________________________
Position:
(Signature)
In the presence of:
_______________________
(Signature)
Position:
Address:
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