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LICENCE AGREEMENT

By Renee Crawford,2014-07-10 17:34
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LICENCE AGREEMENT ...

    LICENCE AGREEMENT

    (Course Packs)

    This Agreement is made the 1st day of December, 2004 between:

    (1) THE HONG KONG REPROGRAPHIC RIGHTS LICENSING SOCIETY LIMITED, a

    limited liability company incorporated in Hong Kong, of 802 Stanhope House, 738 Kings

    Road, Hong Kong (“Licensor”)

    (2) [name, corporate description and address] (“Licensee”) particulars of which are described in

    Schedule I of this Agreement

    WHEREAS

    (1) The Licensor, as agent for the copyright owners of the Licensed Materials, is authorized to

    provide a licence to make Copies of the Licensed Materials.

    (2) The Licensee, being an educational establishment, has requested and the Licensor has agreed

    to grant to the Licensee a non-exclusive and non-transferable licence to make and use Copies

    of the Licensed Materials for preparation of Course Packs subject to the terms and conditions

    set out in this Agreement.

    IT IS HEREBY AGREED as follows:

    TERMS AND CONDITIONS

    1. Definitions

    1.1 In this Agreement the following expressions shall have the following meanings unless the

    context otherwise requires:-

    “Commencement Date” means 1 January 2005

    “Copies” means, in relation to any part of a Work, reproductions in

    hardcopy form which are made by photocopying. For the

    avoidance of doubt, whilst the definition does not in general

    include copies in electronic or digital format, it includes the

    making of copies which are transient (in electronic form or

    otherwise) or storing in electronic form to enable reproduction by

    way of hardcopy form as contemplated by this Agreement;

    provided that such copies in electronic or digital format are

    destroyed upon completion of the Course of Study for the

    purpose of which the copies are made

    “Course of Study means any whole course of study or any segment of a students

    studies provided by the Licensee which is normally regarded as a

    discrete and self-contained unit for the purposes of examination

    or assessment, and which as such would normally carry an

    overall mark or value counting towards the students final

    qualification

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    “Licence Fee” means the licence fee payable by the Licensee to the Licensor

    under clause 6.1 of this Agreement and calculated in accordance “Course Pack” means a compilation of photocopied extracts of Licensed

    with Schedule III of this Agreement Materials, designed in advance to be used in support of a Course

    of Study“Licensed Materials” means the Works described in Schedule II of this Agreement

    subject to such exclusions as are defined therein

    “Term” means a period of two (2) years commencing from the

    Commencement Date

    “Territory” means Hong Kong Special Administrative Region of the People's

    Republic of China

    Textbooks means books written in accordance with any syllabus issued by

    the Hong Kong Curriculum Development Council

    “Work” means a work in which copyright subsists under the Copyright

    Ordinance (Cap. 528, laws of Hong Kong) 1.2 The clause headings in this Agreement are for convenient reference only and shall be

    disregarded in construing this Agreement.

    1.3 In this Agreement, words connoting the singular include the plural and vice versa; and

    references to a person include body corporate or unincorporated and to the person’s executor,

    administrators and successors.

    1.4 Reference to this Agreement or any other agreement shall be deemed to include a reference to

    all schedules and annexure thereto, and shall also include such agreement as amended, varied

    or supplemented from time to time.

    2. Licence

    2.1 In consideration of the payment by the Licensee of the Licence Fee and subject to the terms

    and conditions set out in this Agreement, the Licensor hereby grants to the Licensee a non-

    exclusive and non-transferable right by way of licence to make and use Copies of the Licensed

    Materials for preparation of Course Packs in the Territory during the Term.

    2.2 The Licensee acknowledges that nothing contained in this Agreement shall give the Licensee

    any right, title or interest in or to the Licensed Materials save as granted hereby.

    3. Restrictions and Obligations

    3.1 The Licensee shall not make and use Copies of the Licensed Materials for preparation of

    Course Packs other than for the following purposes:

    (a) instruction by the Licensee's instructors in relation to any Course of Study provided by

    the Licensee; or

    (b) distribution to the Licensee's students for teaching, learning, discussion or classroom

    use in relation to any Course of Study provided by the Licensee.

     For the avoidance of doubt, subject to compliance with the terms set out in this Agreement, the

    Licensee may allow its instructors and students to retain the Course Packs for subsequent

    reference.

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    3.2 The Licensee must ensure that:

    (a) all Copies of the Licensed Materials and Course Packs are only made by:

    (i) the instructors or staff of the Licensee;

    (ii) staff of organizations owned or financed by the Licensee; or

    (iii) staff of any organizations authorized by the Licensor; (b) all Copies of the Licensed Materials and Course Packs are only made within the

    premises of the Licensee, organizations owned or financed by the Licensee, or any

    organizations authorized by the Licensor;

    (c) all Copies of the Licensed Materials and Course Packs are made on the initiative of

    the Licensee's instructors. No Copies of the Licensed Materials or Course Packs may

    be made upon request by any other persons;

    (d) no more than one (1) Course Pack, plus sufficient Copies of that Course Pack for

    distribution to the Licensee's instructors and students, shall be made in relation to the

    same Course of Study. The Licensee shall obtain a unique reference number from the

    Licensor for each Course Pack ("Reference Number"); and (e) with respect to a Course Pack, it shall not include Copies of extracts from more than

    thirty (30) Works.

    3.3 The Licensee shall observe and comply with the following limits when making Copies of the

    Licensed Materials:

    (a) subject to the limits set out in clauses 3.3 (b) to (c) below, each of the Licensee's

    instructors and students may receive no more than one (1) set with respect to the same

    Course Pack;

    (b) with respect to each issue of newspaper, journal or periodical, the Licensee shall not,

    in any one academic year, copy more than one complete article of any length from that

    issue of newspaper, journal or periodical for inclusion in any one single Course Pack;

    and

    (c) with respect to any other Licensed Materials other than newspapers, journals or

    periodicals, the Licensee shall not, in any one academic year, copy more than ten

    percent (10%) or a chapter of that Licensed Material, whichever covers the smaller

    portion of the Licensed Material, for inclusion in any one single Course Pack.

    3.4 The Licensee may apply in writing to the Licensor for consent to make Copies of the Licensed

    Materials in excess of the limits set out in clauses 3.2(e) and 3.3 of this Agreement. The

    Licensor shall make all reasonable efforts to deal with all such applications for consent

    submitted by the Licensee within ten (10) business days after their submission. The relevant

    copyright owners shall have the absolute discretion in deciding: (a) whether to grant the

    permission to the Licensee; and (b) as to the appropriate fee with respect to the permission.

    The Licensee shall not make Copies of the Licensed Materials in excess of the limits set out in

    clauses 3.2(e) and 3.3 without prior written approval from the Licensor.

    3.5 The Licensee agrees to exhibit on the first page of every Course Pack made by compilation of

    Copies of the Licensed Materials a notice setting out the date of making the Copies, the names

    of the authors, the names of the publishers, the titles of the Licensed Materials and the

    publication year, together with the following words:

    “This material (insert the Reference Number) has been copied in accordance with the

    terms of the licence issued by The Hong Kong Reprographic Rights Licensing Society

    Limited. You are not permitted to make any further copy of this material, or to make it

    available to others. No re-sale is permitted.

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    3.6 The Licensee agrees to exercise reasonable diligence in cooperating with the Licensor in any 4. Indemnity educational programmes designed to propagate among the Licensee's instructors, staff and

    students knowledge of laws and policy relating to the protection of intellectual property. 4.1 The Licensee indemnifies the Licensor against all liability incurred by the Licensor as a result

    of or arising out of any breach by the Licensee of any obligation, warranty or other provisions

    of this Agreement.

    4.2 The Licensor indemnifies the Licensee against all liability incurred by the Licensee as a result

    of or arising out of any breach by the Licensor of any obligation, warranty or other provisions

    of this Agreement.

    4.3 Subject to clause 4.4 and without prejudice to the generality of clause 4.2, where a claim is

    made against the Licensee for infringement of copyright arising from making Copies of the

    Licensed Materials under this Agreement, the Licensor indemnifies the Licensee against all

    damages reasonably incurred by it as a result of or arising out of the making of the Copies. 4.4 The Licensee acknowledges where the Licensor notifies it that any specified Works, being

    included as the Licensed Materials before the time of notification, is to be excluded from the

    list of Licensed Materials, the Licensor shall cease to be liable for the making of further Copies

    of such Work by the Licensee commencing from the end of one month following the date of

    notification.

    5. Infringement

    5.1 If the Licensee becomes aware that any other person, firm or company alleges that the making

    of Copies of the Licensed Materials infringes any rights of another party, the Licensee shall

    immediately give the Licensor full particulars in writing thereof and shall make no comment or

    admission to any third party in respect thereof.

    5.2 The Licensor shall have the conduct of all such claims or proceedings and shall in its sole

    discretion decide what action if any to take in respect of any infringement, alleged

    infringement, passing off or any other claim or counterclaim brought or threatened in respect

    of making Copies of the Licensed Materials. For the avoidance of doubt, subject to clause 4.4,

    the Licensor shall indemnify the Licensee against all damages reasonably incurred as

    mentioned in clause 4.3.

    5.3 The Licensee will at the request of the Licensor exercise reasonable diligence in cooperating

    with the Licensor in any action, claim or proceedings brought or threatened in respect of

    making Copies of the Licensed Materials.

    6. Payment

    6.1 The Licensee shall pay to the Licensor the Licence Fee as calculated and in the manner in

    accordance with Schedule III of this Agreement.

    6.2 The Licensee shall within fifteen (15) days of the first day of each January, April, July and

    October following the Commencement Date provide a statement to the Licensor giving

    particulars of the Course Packs made by compilation of Copies of the Licensed Materials

    during the preceding quarter showing the Reference Number, the date of photocopying, the

    name of the author, the name of the publisher, the title, the ISBN, ISSN or ISMN, the edition,

    the publication year, the page numbers of the pages copied, the quantity of Copies made, the

    total number of pages of the original Licensed Materials, the presentation date, duration of the

    Course of Study, the full name of the instructor, the course title, the course code, and the

     Page 4

    respective department/faculty, together with any other particulars as the Licensor may

    reasonably require, as well as the instructors request form (bearing the signature of the

    respective instructor). The Licensee shall also pay the Licence Fee in relation to the Copies

    made during the preceding quarter to the Licensor at the same time as rendering the statement.

    6.3 The Licensee shall keep separate, detailed, true and accurate books and records of all Course

    Packs made to enable the Licensor to check the accuracy of the information contained in the

    statements rendered under clause 6.2 of this Agreement.

    6.4 The Licensor shall be entitled to examine all books and records prepared and kept by the

    Licensee pursuant to clause 6.3 of this Agreement on reasonable notice during business hours

    and to take copies of or extracts from such books and records. The Licensee shall bear the

    reasonable costs for any such examination if:

    (a) the examination reveals that the Licensee underpays for the Licence Fee with respect

    to any quarter within the Term, as calculated in accordance with Schedule III of this

    Agreement, by more than 5%; or

    7. Commencement and Termination (b) the Licensee fails to comply with clause 6.2 of this Agreement.

    7.1 This Agreement shall be effective from the Commencement Date and shall, unless terminated

    in accordance with clause 7.2 of this Agreement, continue throughout the Term.

    7.2 Either party of this Agreement may immediately terminate this Agreement by notice in writing

    if:

    7.2.1 the other party is in material breach of any terms of this Agreement (including in case

    of the Licensee, any default in payment of the Licence Fee) and, if such breach is

    capable of being remedied, failing to remedy such breach within fifteen (15) calendar

    days after receipt from the non-defaulting party of a written notice of such breach; or

    7.2.2 the other party enters into a compulsory or voluntary liquidation or otherwise becomes

    insolvent or makes any arrangement or composition with its creditors or has a receiver

    or manager appointed; or enters into a scheme of restructuring or amalgamation or for

    whatever reason ceases or is unable to carry on its business. 7.3 Termination of this Agreement for whatever reason shall be without prejudice to the accrued

    rights and liabilities of the parties arising in any way out of this Agreement as at the date of

    termination and in particular but without limitation the right to recover damages from the other.

    7.4 Upon termination of this Agreement for whatever reason, the licence hereby granted shall

    immediately lapse. The Licensee shall thereupon cease to hold itself out as a licensee of the

    Licensor or of the copyright owners of the Licensed Materials and shall remove any

    representation to this effect.

    7.5 One year before the expiry date of the Licence Agreement, the Licensor and the Licensee shall

    enter into good faith negotiations for a further licence for the Licensed Materials after the

    Term.

    8. Severability

    8.1 It is agreed by both the Licensor and the Licensee that if any provision of this Agreement, or

    the application thereof to any persons, places, or circumstances, shall be held to be invalid,

    unenforceable or void, the remainder of this Agreement and such provisions as applied to other

    persons, places and circumstances shall remain in full force and effect.

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9. Notices

    9.1 Any notice required to be given hereunder by either party to the other shall be in writing and

    shall be served by sending the same by prepaid post or by fax to the address or fax number of

    the other party as given herein or to such other address or fax number as that party may have

    previously notified to the party giving notice as its address or fax number for such service, and

    the notice shall be deemed to have been received on:

    (a) the third (3rd) day after posting (if given by prepaid post); or

    (b) the date of receipt as shown on any transmission report by the machine from which the

    notice was sent (if given by fax). The transmission report must indicate that the

    notice was sent in its entirety to the fax number of the other party.

    10. Governing Law and Disputes

    10.1 This Agreement shall be governed by and construed in accordance with the laws of Hong

    Kong and the parties agree to:

    (a) irrevocably and unconditionally submit to the courts of Hong Kong, save as

    specifically provided for in the Copyright Ordinance, to the Copyright Tribunal; and

    (b) waive any right to object to proceedings being brought in those courts for any reason. 11. General

    11.1 This Agreement constitutes the entire agreement and understanding of the parties and

    supersedes all prior written or oral representations agreements or understandings between them

    relating to the subject matter of this Agreement other than any false misrepresentation made by

    a party to induce the other party to enter into this Agreement.

    11.2 No variation or amendment of this Agreement shall bind either party unless made in writing

    and agreed to in writing by duly authorized officers of both parties. 11.3 A failure by either party hereto 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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IN WITNESS whereof this Agreement has been entered into on the day and year first

    above written.

SIGNED by [name] ) for and on behalf of ) The Hong Kong Reprographic Rights ) Licensing Society Limited ) in the presence of: )

    )

    Signature of witness )

     )

     )

     )

    ) ) Name of witness (block letters) ) ) )

    Address of witness By executing this Agreement the signatory

     warrants that the signatory is duly authorised

     to execute this Agreement on behalf of The

    Hong Kong Reprographic Rights Licensing Occupation of witness Society Limited .

SIGNED by [name] ) for and on behalf of ) [name of institution] ) ) in the presence of: )

    )

    Signature of witness )

     )

     )

     )

    ) ) Name of witness (block letters) ) ) )

    Address of witness By executing this Agreement the signatory

     warrants that the signatory is duly authorised

     to execute this Agreement on behalf of [name

    Occupation of witness of institution]

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    SCHEDULE I

    PARTICULARS OF THE LICENSEE

Name of Licensee: [name]

    Address: [address]

    Telephone number: [telephone number] Fax number: [fax]

    Contact person: [name]

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    SCHEDULE II

    LICENSED MATERIALS

All literary, musical, dramatic, or artistic Work, or a part of such Works in printed form, of which

    copies have been issued to the public whether in the form of a book, magazine, newspaper, journal,

    periodical or otherwise excluding:

    a) all Works listed in Schedule IV of this Agreement;

    b) those works (if any) listed in writing by the Licensor and issued to the Licensee in January and

    July of each year during the Term. The exclusion list and additions to the exclusion list shall

    not take effect until one month after written notification to the Licensee; and

    c) all Textbooks.

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    SCHEDULE III

    LICENCE FEE

The Licence Fee for the Term shall be the aggregate of (1) and (2) below:

    (1) (a) Licence Fee for the first year of the Term:

    number of pages of Copies made of the Licensed Materials x HK$0.35

     (b) Licence Fee for the second year of the Term:

    number of pages of Copies made of the Licensed Materials x HK$0.40

    (2) in the event that the Licensor specifically authorizes and the Licensee makes Copies of the

    Licensed Materials in excess of the limits set out in clause 3.3 of this Agreement:

     (a) any charges set by the copyright owners of the relevant Licensed Materials; and

     (b) 20% of the charges set by the copyright owners of the relevant Licensed Materials,

    being the service charge for the Licensor.

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