Sample agreement — Collaborative Newspaper Digitisation Programme

Sample Master Digitisation Agreement

Date:
Parties:

The Sovereign in Right of New Zealand acting by and through the Chief Executive of the Department of Internal Affairs (Department)

(Contributing Organisation/Contributor) at Town/City

Background

A — The Department is undertaking a digitisation programme of work for the conversion of archived Materials to digital images, for its "Papers Past" website: operated by the National Library of New Zealand Te Puna Mātauranga o Aotearoa at http://paperspast.natlib.govt.nz.

B — Contributing Organisations may become involved in the programme of work through providing Materials, funding, or through other forms of collaboration.

C — Contributing Organisations who become involved will enter into one or more Statements of Work with the Department for a particular series of material or digitisation task.

D — This Agreement sets out the terms and conditions that apply to these Statements of Work.

The Parties agree as follows:

1. Definitions and Construction

1.1 Definitions and Construction

In this agreement, and in relation to each Statement of Work, unless the context requires otherwise:

Assignment: as far as legally possible, an assignment of Intellectual Property Rights includes present assignment of future rights.

Collection Point: means the "Collection Point" specified in the Statement of Work.

Digitisation: means the process of digitisation of Materials carried out by or for the Department, as contemplated by this Agreement, including (where applicable) the collection of Loaned Materials or Loaned Microfilms from the Collection Point, the creation of microfilms or other images for digitisation, and the return of Loaned Materials or Loaned Microfilms to the Return Point.

Digitisation Costs: means the actual and reasonable costs incurred by the Department for the purpose of carrying out the Digitisation work set out in a particular Statement of Work.

Digitised Data: means digitised copies of the Materials, and any compilation or arrangement of those copies, produced by or for the Department in the course of Digitisation.

Documents: a reference to any document, including this agreement, includes a reference to that document as amended or replaced from time to time.

Loaned Materials: means Materials supplied (or to be supplied) to the Department by the Contributing Organisation for Digitisation as identified in the Statement of Work.

Loaned Microfilms: means microfilms supplied (or to be supplied) by the Contributing Organisation, as identified in the Statement of Work; together with any microfilms created by the Department but owned by the Contributing Organisation pursuant to clause 3.2.

Metadata: means metadata (for example, title, URL, thumbnail image, thumbnail URL and licensing information) associated with each item of Digitised Data, and any compilation or arrangement of that metadata, compiled or created by or for the Department in the course of Digitisation.

Materials: means the "Materials" identified in the Statement of Work, and may include newspapers, journals, pamphlets, magazines, periodicals and any other printed materials.

Metadata Service: means the "Metadata Service" specified in the Statement of Work.

New Copyright: means new copyright (if any) created in the course of Digitisation (for example, in metadata or database elements).

Personnel: in relation to a party, means a person acting as an employee, agent, contractor or sub-contractor of that party. For this purpose, neither party will be regarded as Personnel of the other, and the fact that a person is part of one party's Personnel does not also make that person part of the other party's Personnel.

Relationship Manager: means the representative nominated by a Party (and updated from time to time by notice in writing) as responsible for managing this agreement and the parties' relationship under it.

Return Point: means the "Return Point" specified in the Statement of Work.

Senior Manager: means the manager to whom the Relationship Manager reports.

Statement of Work: means a document that identifies itself as a "Statement of Work" governed by this agreement, and has been signed by both the Department and the Contributing Organisation. A suggested form of Statement of Work is attached as a Schedule to this agreement.

Timetable: means the "Timetable" specified in the Statement of Work.

Website: means the "Website" specified in the Statement of Work.

2. Overview

2.1 Term

This agreement begins as soon as it has been signed by both parties, and continues until terminated.

2.2 Statements of Work

From time to time, the parties may enter into a Statement of Work relating to a particular collection of Materials. Neither party has any obligation or liability in relation to any Materials under this agreement until both parties have signed a Statement of Work in respect of those Materials. Each signed Statement of Work is deemed to form part of this agreement.

2.3 Order of priority

The terms of this agreement prevail over the terms of any Statement of Work to the extent of any conflict (except where specifically stated otherwise).

2.4 Special conditions

Any special conditions set out in the Statement of Work form part of this Agreement.

3. Digitisation

3.1 Holding of Loaned Materials and Loaned Microfilms

The Department will hold any Loaned Materials or Loaned Microfilms as a bailee for the Contributing Organisation. The Contributing Organisation consents (as owner of the physical media) to the duplication and digitisation of the Loaned Materials or Loaned Microfilms in accordance with this agreement. To avoid doubt, this clause 3.1 is not a copyright licence.

3.2 Microfilms

Ownership (but not copyright) in microfilms created by the Department in the course of Digitisation vests as set out in the Statement of Work.

3.3 Process

The Department will carry out the digitisation of the Materials (including where applicable, from the Loaned Microfilm), in accordance with the standard specifications stipulated by the Department from time to time. (Subject to any specific requirements set out in the Statement of Work.) This includes any image and text capture and other processing to enhance the Digitised Data, carrying out quality assurance of the Digitised Data, and managing any reprocessing required by the Department for that purpose.

3.4 Data Delivery

The Department will deliver a copy of the Digitised Data to the Contributing Organisation, in the format and at the frequency specified in the Statement of Work.

3.5 Data Storage

The Department will store a copy of the Digitised Data so that all, or a portion, of the Digitised Data can be transferred to the National Digital Heritage Archive to ensure that it is preserved in perpetuity.

3.6 Timetable

The Department will use reasonable endeavours to ensure that Digitisation occurs in accordance with the Timetable.

The Contributing Organisation acknowledges that Covid19 may have an impact on the Department including the ability of third parties who are contracted to the Department to deliver services relating to this agreement and therefore, the Department's ability to ensure that Digitisation occurs in accordance with the Timetable under this clause may be affected. The Contributing Organisation agrees that any such effect on the Timetable will not be a breach of the Department’s obligations under this agreement and the Contributing Organisation will agree amendments to the Timetable as required to adjust for the impacts.

4. Publication

4.1 Website and Metadata Service

The Department will make the Digitised Data available on the Website, and will make the Metadata available for the Metadata Service, for so long as the Website and Metadata Service continue to be available to the public. The Department may withdraw material from the Website and/or Metadata Service if it considers this necessary to avoid infringing the intellectual property rights of one or more third parties.

4.2 Acknowledgment

The Department will acknowledge the Contributing Organisation in the form and context specified in the Statement of Work, for at least the minimum period specified in the Statement of Work. After that period, the Department will use reasonable endeavours to continue that acknowledgment in a similar form.

5. Digitisation Costs

5.1 Cost Sharing

The parties will share the Digitisation Costs in the proportions specified in the Statement of Work. The Statement of Work sets out the Department's initial (non-binding) estimate of the total Digitisation Costs that will be required to complete the Digitisation of all the Materials.

5.2 Invoicing and payment

The Department will invoice the Contributing Organisation for its share of the Digitisation Costs at the frequency specified in the Statement of Work. The Contributing Organisation will pay each correctly rendered invoice on or before the 20th day of the month following the month in which the Contributing Organisation receives the invoice.

5.3 Invoice disputes

The Contributing Organisation may dispute an invoice in good faith, by giving written notice to the Department within 15 days of receiving that invoice. If it does so, the Contributing Organisation may:

a) Request a new invoice; or
b) Pay the invoice in full and request a credit.

The obligations of each party under this agreement will continue while the disputed invoice is being resolved.

6. Copyright and licensing

6.1 IP Overview

Statements of Work must include an IP Overview of the status and ownership of the copyright in the Materials and Loaned Microfilm.

6.2 New Copyright

The parties intend that New Copyright arising from Digitisation (if any) will vest in accordance with the Statement of Work. Each party will use its best endeavours to carry out any action or give any consent necessary to achieve this intention.

6.3 Licences from the Department

The Department grants the Contributing Organisation the "Department Licences" (if any) specified in each Statement of Work.

6.4 Licences from the Contributing Organisation

The Contributing Organisation grants the Department the "Contributing Organisation Licences" (if any) specified in each Statement of Work.

6.5 Third party claims

Any party who becomes aware of any claim by a third party that activities of either party in connection with this agreement are an infringement of that third party's intellectual property rights (Third Party Claim) will promptly notify the other party. The Contributing Organisation will co-operate with the Department to resolve any Third Party Claim, including (to the extent permitted by law) allowing the Department to handle all negotiations for settlement, and to control any litigation that may follow.

7. Termination and consequences

7.1 Termination for convenience

Either party may at any time terminate this agreement or any Statement of Work, by giving the other party at least one month's written notice. Neither party will have any further obligations or liability under this agreement from the effective date of termination, subject to clauses 7.2 and 7.3.

7.2 Effect of termination

If this agreement or a Statement of Work is terminated, the Department will stop the Digitisation and return any Loaned Materials or Loaned Microfilms. The Contributing Organisation remains liable for Digitisation Costs incurred up to the effective date of termination.

7.3 Survival

Termination of this agreement will not affect any obligations or liabilities accrued before the effective date of termination, or any assignments or licences granted under this agreement. The clauses that by their nature should remain in force on termination or expiry of this Agreement to give effect to these obligations or liabilities do so.

8. Disputes

8.1 Dispute Notice

If any dispute, controversy or claim in connection with this agreement arises, or any question regarding its existence, breach, termination or invalidity (in each case, a Dispute), either party may give written notice to the other specifying the nature of the Dispute and requesting discussions under this clause 8.1 (Dispute Notice).

8.2 Discussion by Relationship Managers

As soon as reasonably practicable following receipt of a Dispute Notice, the Relationship Managers will meet (in person, or by audio or video conference) and try to resolve the Dispute by discussion, negotiation and agreement.

8.3 Escalation to Senior Managers

If the Dispute is not resolved within 30 days after issue of a Dispute Notice, then either party may give written notice requiring the Dispute to be escalated to the Senior Managers. As soon as reasonably practicable after that notice, the Senior Managers will meet (in person, or by audio or video conference) and try to resolve the Dispute by discussion, negotiation and agreement.

8.4 Limits on proceedings

A party must not commence any proceedings in connection with a Dispute unless at least 60 days have elapsed since the issue of a corresponding Dispute Notice, and that Party has used reasonable endeavours to comply with this clause 8. However, nothing in this clause prevents either Party from seeking urgent interim relief from a court (or other tribunal) of competent jurisdiction.

9. General

9.1 Further assurances

Each of the parties agrees to execute and deliver any documents, including transfers of title, and co-operate fully as reasonably required by the other party to give effect to the true intent of this agreement.

9.2 Amendments

An amendment to this agreement is not effective unless made in writing and signed by both parties.

9.3 Assignment

A party may only assign or transfer any of its contractual rights or obligations under this agreement with the other party's prior written approval. The other party may give or withhold its approval as it sees fit, and subject to whatever conditions it considers appropriate.

9.4 Relationship of parties

This agreement does not create or evidence any legal partnership, employer-employee, principal-agent or joint venture relationship.

9.5 Governing law

This agreement is to be governed by, and construed in accordance with, the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

9.6 Counterparts

This agreement may be executed in any number of counterparts (including facsimile or scanned and emailed copies). So long as each party has received a counterpart signed by each of the other parties, the counterparts together shall constitute a binding and enforceable agreement.

Signatures

Signed for and on behalf of The Sovereign in Right of New Zealand acting by and through the Chief Executive of the Department of Internal Affairs by:
Name:
Date:

Signed for and on behalf of Click here to enter text. by:
Name: Title:
Date:

Schedule: Digitisation Statement of Work

Department of Internal Affairs
(insert name of Contributing Organisation)

1 — Date: {insert date of SOW}

2 — Parties: The Sovereign in Right of New Zealand acting by and through the Chief Executive of the Department of Internal Affairs (Department)

{insert full legal name} (Contributing Organisation) (insert third party name if required, for example, if funding the project)

3 — Background: This Statement of Work is governed by the Master Digitisation Agreement between the Department and the Contributing Organisation dated on or about {date} (Master Agreement). In this Statement of Work, words and phrases defined in the Master Agreement have the meanings given in the Master Agreement.

4 — Materials: {identify materials to be digitised, including date range}

5 — Loaned Microfilms or Materials for digitisation (delete whichever options do not apply to you. If we are not borrowing microfilm or materials then delete the section about Collection and Return points)

Option 1
The Department already holds Microfilms or can access them without the assistance of the Contributing Organisation.

Option 2
Contributing Organisation to supply microfilms or Digitised Data (where available) of all Materials

Option 3
Contributing Organisation to supply the Materials to the Department for {Microfilming and/or Digitisation} (delete as necessary).

Collection Point
(identify where microfilms or Materials will be made available for collection by the Department or its agents)

Return Point
(identify where microfilms will be handed back into the care of the Contributing Organisation or its agents)

6 — Timetable:(complete timetable, or cross-reference to attached timetable)

7 — Cost Sharing: (delete whichever options do not apply to you, or insert another option if necessary. If a third party is responsible for costs then replace references to names here as relevant)

Microfilming
(insert cost sharing details for microfilming)

Digitisation Option 1
The Contributing Organisation will reimburse the Department for { }% of the Digitisation Costs. The Department’s initial estimate of the total Digitisation Costs is NZ${ } plus GST (if any).

The Department’s initial estimate of the Contributing Organisation’s Costs for {year} is NZ${} plus GST (if any).

Digitisation Option 2
The Contributing Organisation will reimburse the Department for:

• { }% of (the Digitisation Costs for the first {} pages Digitised) or (the first ${ } of Digitisation Costs)*; and

• 100% of (the Digitisation Costs for the next { } pages Digitised) or (the next ${ } of Digitisation Costs).

The Department will pay all further Digitisation Costs, but it reserves the right to stop Digitisation at any time (despite clause 3 of the Master Agreement). The Department’s initial estimate of the total Digitisation Costs is NZ${ } plus GST.

8 — Microfilms: In the case of microfilms created in the course of Digitisation, ownership (but not copyright) will vest in {the Department} or {the Contributing Organisation}

9 — Data Delivery: (Not applicable) or (The Department will provide the Contributing Organisation with a copy of the Digitised Data and associated Metadata in {specify format} on {specify media}, to be delivered {specify period, e.g. quarterly}, covering all Materials digitised during the preceding {specify period, e.g. quarter}].

10 — Publication by Department:
Website
(Not applicable) or (On http://paperspast.natlib.govt.nz, and any successor website controlled by the Department)

Metadata Service
(Not applicable) or (The Department’s Digital New Zealand service (www.digitalnz.org), including its website and Application Programming Interface (API))

11 — Acknowledgment: for Contributing Organisation (delete whichever option doesn’t apply to you)

Option 1
Not applicable

Option 2

Minimum period
{ } years, and thereafter the Department will use its best efforts to continue to display the acknowledgement.

Form of acknowledgment
This material was digitised in partnership with (insert name of Contributing Organisation and any third party if necessary).

Context
To appear on the "Papers Past" website (or any replacement website controlled by the Department), on the newspaper "title page". Acknowledgment will include hyperlink to webpage nominated by the Contributing Organisation.

12 — Special Conditions (insert any special conditions here, for example if the Material is to be digitised in greyscale.)

13 — IP Overview (delete all statements that don’t apply to you)
As at the date of each Statement of Work, each party represents that, having made reasonable enquiries and to the best of its knowledge, the status and ownership of the copyright in the Materials and Loaned Microfilm (and where applicable that party's rights as a licensee of that copyright), is as follows:

• (Copyright in the Materials has expired.)

• (The owner of copyright in the Materials and their constituent works is {insert name})

• (The (Department) or (Contributing Organisation) holds a valid copyright licence in respect of the Materials, granted by {name} on the terms of (the Creative Commons Attribution 3.0 Licence) or (identify other licence terms (with URL if applicable), or cross-refer to terms attached to this SOW)

• (The Department holds all the rights necessary to make copies of the Materials, through {identify source of rights}).

• (The Contributing Organisation holds all the rights necessary to make copies of the Materials, through {identify source of rights}).

• (The Department holds all the rights necessary to publish Digitised Data in the manner contemplated in this agreement, through {identify source of rights}).

• (The Contributing Organisation holds all the rights necessary to publish Digitised Data in the manner contemplated in this agreement, through {identify source of rights}).

14 — Ownership of New Copyright
New Copyright (if any) arising on creation of Digitised Data will vest in (the Department) or (the Contributing Organisation) or (name third party).

New Copyright (if any) arising on creation of Metadata will vest in (the Department) or (the Contributing Organisation) or (name third party)

15 — Department Licences

Option 1 Not applicable

Option 2
The Department grants a licence of all New Copyright (if any) that the Department may hold, on the terms of the (Creative Commons Attribution 4.0 International Licence (CC BY 4.0))
or (identify other licence terms (with URL if applicable), or cross-refer to specific terms attached to SOW)/

16 — Contributing Organisation Licences

Option 1
Not applicable

Option 2
The Contributing Organisation grants a licence of all New Copyright (if any) that the Contributing Party may hold, on the terms of (Creative Commons Attribution 3.0 Licence) or (identify other licence terms (with URL if applicable) or cross-refer to specific terms attached to SOW)

17 — Relationship Managers

Department

Name:
Address:
Email:

Contributing Organisation

Name:
Address:
Email:

18 — Signatures

(Check with Contributing Organisation whether there are any special signing requirements, e.g. signing under seal.]

Signed for and on behalf of The Sovereign in Right of New Zealand acting by and through the Chief Executive of the Department of Internal Affairs by:

Name:
Title:
Date:

Signed for and on behalf of (name of Contributing Organisation) by:

Name:
Title:
Date:

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