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BC COMMONS LEGAL CODE (v1.2)

BC commons

SUMMARY OF BC COMMONS LICENSE (Version 1.2)

THE LICENSE IS PROVIDED “AS IS”, AND DOES NOT INCLUDE ANY LICENSE OF ANY THIRD PARTY MATERIALS THAT MAY BE INCLUDED IN THE WORK, UNLESS SUCH THIRD PARTY MATERIALS ARE LICENSEABLE BY LICENSOR. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU HAVE OBTAINED ALL NECESSARY RIGHTS FOR ANY THIRD PARTY MATERIALS THAT ARE INCLUDED IN THE WORK.

BCCAMPUS IS NOT A PARTY TO THIS LICENSE, AND INCURS NO OBLIGATIONS AND MAKES NO WARRANTIES WHATSOEVER IN CONNECTION WITH THE WORK. BCCAMPUS WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON ON ANY LEGAL THEORY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS LICENSE. YOU HEREBY RELEASE BCCAMPUS FROM ANY AND ALL CLAIMS, PRESENT AND FUTURE, WITH RESPECT TO THIS LICENSE OR THE WORK.

License

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS BC COMMONS LICENSE (THE “LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAWS. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED IN THIS LICENSE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED IN THIS LICENSE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

Article 1: Definitions

1.1 Definitions. In this License, including the recitals and the schedules, the following words and expressions have the following meanings unless the context otherwise requires:

  1. “Affiliate” of any Person means any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person, and for the purposes of this definition “control” (including correlative meanings of the terms “controlled by” and “under common control with”) means the power to direct or cause the direction of the management and policies of any Person, whether through the ownership of shares or by contract or otherwise.
  2. “BC Public Post-Secondary Educational Institutions” means, collectively, the universities as defined by the University Act (British Columbia), the institutions as defined by the College and Institute Act (British Columbia), the institute as defined by the Institute of Technology Act (British Columbia), the university as defined by the Royal Roads University Act (British Columbia), the agency as defined by the Open Learning Agency Act (British Columbia), any successor institutions as defined in any successor legislation or as designated by the Ministry of Advanced Education and any successors thereto; provided that (except for the ministry and successors thereto) such institution has a physical presence within British Columbia.
  3. “Collective Work” means a work in which any two or more of the following works are assembled into a collective whole:
    1. the Work in its entirety in unmodified form;
    2. one or more Learning Objects that are part of the Work in their entirety in unmodified form;
    3. one or more Derivative Learning Objects in their entirety in unmodified form;
    4. one or more Derivative Works that are separate and independent works in themselves, in their entirety in unmodified form; and
    5. one or more other contributions, constituting separate and independent works in themselves.
    6. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.
  4. “Derivative Learning Object” means a work that is a Learning Object and that is based upon one or more Learning Objects that are part of the Work or any part of such Learning Objects or upon one or more Learning Objects that are part of the Work or any part of such Learning Objects and other pre-existing works. A work that constitutes a Derivative Learning Object will be considered a Derivative Work (as defined below) for the purposes of this License, but the use of a Derivative Learning Object in a Collective Work will not by itself make the Collective Work a Derivative Work.
  5. “Derivative Work” means a work based upon the Work or any part thereof or upon the Work or any part thereof and other pre-existing works, such as (without limitation) a new online or distance learning program or Learning Object, translation, video or motion picture version, sound recording, art reproduction, musical arrangement, dramatization, fictionalization, abridgment, condensation, or any other form in which the Work or any part thereof may be recast, transformed, or adapted, and includes a Derivative Learning Object; provided however that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License; and provided further that if the Work is a software tool or other technology whose purpose is to assist in the creation or use of Learning Objects, then a Learning Object created or used by such software tool or other technology is not a Derivative Work by reason only of having been so created or used.
  6. “Eligible Participants” means, collectively:
    1. BCcampus;
    2. the BC Public Post-Secondary Educational Institutions; and
    3. all other Persons who have been designated from time to time by both BCcampus and Licensor as Eligible Participants for the purpose of this License and in relation to the Work; provided however that such Persons will be subject to any terms and conditions that BCcampus and Licensor may specify at the time of such designation or at any time thereafter.

    and “Eligible Participant” means any of them. For clarity and the avoidance of doubt, Eligible Participants does not include any Affiliate of an Eligible Participant, unless approved in writing by Licensor.

  7. “Executable Code” means Included Software in any form other than Source Code.
  8. “Included Code” means any software that forms all or part of a Work.
  9. “Learning Object” means a modular digital resource that is uniquely identified, and that can be used to support learning.
  10. “Licensable” means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein.
  11. “Licensor” means the individual or entity that offers the Work under the terms of this License.
  12. “Original Author” means the Person who created the Work.
  13. “Patent Claims” means any patent claim(s), now owned or hereafter acquired, including without limitation, method, process, and apparatus claims, in any patent pursuant to which Licensor may grant a license as provided in this License.
  14. “Person” means an individual, partnership, corporation, joint stock company, trust, unincorporated organization, joint venture, limited liability company, government or an agency or political subdivision thereof or other form of legal entity.
  15. “Source Code” means the form of the Included Code which is preferred for making modifications to it.
  16. “Work” means the copyrightable work of authorship offered under the terms of this License.
  17. “You” means a Person exercising rights under this License who is an Eligible Participant and who has not previously violated the terms of this License with respect to the Work, or who has received express written permission from Licensor to exercise rights under this License despite a previous violation. For clarity and the avoidance of doubt, You do not include any of your Affiliates, unless approved in writing by Licensor.

Article 2: Grant of License

2.1 License Grant. Provided that You are an Eligible Participant, and subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright and for so long as You remain an Eligible Participant) license to exercise the rights in the Work as stated below, to the extent and only to the extent that such rights are Licensable by Licensor:

  1. to produce and reproduce the Work or any part thereof, to incorporate the Work into one or more Collective Works, and to produce and reproduce the Work as incorporated in the Collective Works;
  2. to create, produce and reproduce Derivative Works;
  3. to perform publicly by means of an online or other digital video or audio transmission, or to otherwise publicly display or publicly perform:
    1. the Work including as incorporated in Collective Works; and
    2. Derivative Works,

    in each case either (i) as part of and only as part of a publicly offered credit or non-credit course or program which is provided by You to the recipients of such performance or display; or (ii) for any other purpose that is approved in writing by Licensor in advance;

  4. to distribute copies of the Work or Derivative Work to:
    1. any Person as part of a publicly offered credit or non-credit course or program which is provided by You to such Person; or
    2. to an Eligible Participant;
  5. if the Work is or includes Included Software, to use the Included Software for the purpose of:
    1. assisting You to perform publicly by means of an online or other digital video or audio transmission, or to otherwise publicly display or publicly perform, any work that is part of a publicly offered credit or non-credit course or program which is provided by You to the recipients of such performance or display; or
    2. assisting You to create other works that are intended to be used by You as part of an online or other digital video or audio transmission, or otherwise publicly displayed or publicly performed as part of a publicly offered credit or non-credit course or program which is provided by You to the recipients of such performance or display; and
  6. under Patent Claims infringed by the making, using or selling of the Work, to make, have made, use, practice, sell, offer for sale, or otherwise dispose of the Work (or portions thereof) to the extent and only to the extent permitted under the other subsections of this Section 2.1.

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. The above rights include the right to provide the Work to third party contractors, on appropriate obligations of confidentiality, so that such third party contractors may assist You in the exercise of the above rights. All rights not expressly granted by Licensor are hereby reserved.

2.2 Restrictions. The license granted in Section 2.1 is expressly made subject to and limited by the following restrictions:

  1. You may distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy of the Work You distribute, publicly perform or publicly display. You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License. The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.
  2. You may distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform a Derivative Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy of each Derivative Work You distribute, publicly perform or publicly display. You may not offer or impose any terms on the Derivative Works that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder, and You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License.
  3. If You create a Derivative Work, You must notify BCcampus, provide a copy of the Derivative Work to BCcampus in such manner and format as BCcampus may reasonably request, and enter into the then standard agreement of BCcampus providing that the Derivative Work may be distributed by BC Campus under this License. If the Work includes Included Code and Source Code is provided, and if You create a Derivative Work, then You must include with the copy of the Derivative Work provided to BCcampus a copy of the Source Code for the Derivative Work, together with all modules it contains, plus any associated interface definition files, and any files, scripts or other data used to control compilation and installation of Executable Code. The Source Code can be in a compressed or archival form, provided the appropriate decompression or de-archiving software is widely available for no charge.
  4. If You distribute, perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., “Learning Object 3 based on original Work by Original Author”). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.
  5. If the Work includes Included Code and Source Code is not provided, then You will not decompile, disassemble, reverse engineer or (without the prior written consent of Licensor) modify the Included Code.
  6. From time to time at the request of Licensor or BCcampus, You will provide such information as Licensor or BCcampus may reasonably request relating to your use of the Work, and relating to the development of any Collective Works or Derivative Works.
  7. From time to time at the request of Licensor or BCcampus, You will allow representatives of Licensor or BCcampus access at reasonable hours to your personnel and to your systems, records and other pertinent information, all to the extent necessary for the purpose of confirming your compliance with the terms of this License.

2.3 Third Party Materials. If the Work contains any third party materials, then, at your own expense, You must obtain from the applicable third parties all necessary rights for the use of the Work as provided in this License and You must indemnify, defend, and hold harmless BCcampus and its directors, officers, employees and agents from and against any and all losses, claims, damages, actions, causes of action, costs and expenses (including legal costs on a solicitor and own client basis) that any of them may sustain, incur, suffer, or be put to at any time, either before or after the expiration or termination of this Agreement, where the same are based upon, arise out of or occur, directly or indirectly, by reason of any claim that any use by You of the Work infringes any copyright, moral right, trademark right, patent, trade secret or other intellectual property rights of such third party, and for the purpose of this Section BCcampus is and will be deemed to be acting as agent and trustee on behalf of and for the benefit of all such directors, officers, employees and agents.

2.4 Third Parties.

  1. Each time You distribute to an Eligible Participant:
    1. the Work or a Collective Work, Licensor offers to the recipient a license to the Work; or
    2. a Derivative Work, Licensor offers to the recipient a license to the original Work,

    in each case on the same terms and conditions as the license granted to You under this License.

  2. Each time You perform publicly by means of an online or other digital video or audio transmission, or otherwise publicly display or publicly perform a Work, Collective Work or Derivative Work to or for a Person as part of a publicly offered credit or non-credit course or program which is provided by You to such Person or distribute to a Person copies of the Work or a Derivative Work as part of a publicly offered credit or non-credit course or program which is provided by You to such Person:
    1. in the case of the Work or a Collective Work, Licensor offers to the recipient a license to the Work; or
    2. in the case of a Derivative Work, Licensor offers to the recipient a license to the original Work,

    to use the same for such Person’s personal use in association with and only in association with such course or program and for no other purpose.

2.5 Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any rights arising from fair dealing or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

Article 3: Disclaimer and Limitation of Liability

3.1 Disclaimer. YOU ACKNOWLEDGE THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS LICENSE, THE WORK IS LICENSED ON AN “AS IS” BASIS AND LICENSOR MAKES NO WARRANTY, REPRESENTATION, INDEMNITY OR CONDITION, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK, AND YOU HEREBY WAIVE AND DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT. THE WARRANTIES SET FORTH IN THIS LICENSE CONSTITUTE THE ONLY WARRANTIES MADE BY LICENSOR TO YOU WITH RESPECT TO THIS LICENSE AND THE WORK, AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.

3.2 Limitation of Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AND EXCEPT FOR DAMAGES ARISING FROM LIABILITY TO A THIRD PARTY RESULTING FROM BREACH OF THE WARRANTIES IN SECTION 3.1, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, OR CLAIMS OF THIRD PARTIES, WHETHER FORESEEABLE OR NOT, ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES , AND ALL CLAIMS WITH RESPECT TO ANY OF THE FOREGOING ARE HEREBY WAIVED AND RELEASED BY YOU.

Article 4: Termination

4.1 Term. Subject to the terms and conditions of this License, the license granted herein is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

4.2 Termination for Breach. This License and the rights granted hereunder will terminate automatically if You cease to be an Eligible Participant or upon any breach by You of the terms of this License. Persons who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses.

4.3 Survival of Terms. Sections 2.2(f), 2.2(g), 3.1, 3.2 and 5.1 and such other provisions as may reasonably be expected to remain in force will survive the expiration or termination of this License and will remain in full force and effect following such expiration or termination. The expiration or termination of this License will not affect the rights of any party to make a claim for damages arising from a breach of any provision of this License which occurred prior to such expiration or termination.

Article 5: General

5.1 BCcampus Trademarks. Except for the limited purpose of indicating to the public that the Work is licensed under the BC Commons License, You will not use the trademarks “BCcampus” of “BC Commons” or any related trademark or logo of BCcampus without the prior written consent of BCcampus. Any permitted use will be in compliance with BCcampus’ then-current trademark usage guidelines, as may be published on its website or otherwise made available upon request from time to time.

5.2 Governing Law.

  1. This License will be governed by and construed in accordance with the substantive laws of British Columbia and the federal laws of Canada applicable in British Columbia, without regard to the conflict of law rules of British Columbia.
  2. The parties irrevocably submit to and accept generally and unconditionally the exclusive jurisdiction of the courts and appellate courts of British Columbia with respect to any legal action or proceeding which may be brought at any time relating in any way to this License. Each of the parties irrevocably waives any objection it may now or in the future have to the venue of any such action or proceeding, and any claim it may now or in the future have that any such action or proceeding has been brought in an inconvenient forum.
  3. The International Sale of Goods Act of British Columbia and the United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this License or to the transactions contemplated by this License or otherwise to create any rights or to impose any duties or obligations on either party to this License. Any rights which have arisen or which might in the future arise under the International Sale of Goods Act or the United Nations Convention on Contracts for the International Sale of Goods are waived and released by both parties to this License.

 

5.3 Good Faith. You agree to act reasonably and in good faith in the exercise of your rights under this Agreement.5.4 Assignment. This License is not assignable by You in whole or in part without the prior written consent of Licensor. Any attempt by You to assign any of the rights or to delegate any of the duties or obligations of this License without such prior written consent is void.

5.5 Joint and Several Obligations. If Licensor is two or more Persons, then the obligations of Licensor in this License are joint and several obligations of each of them.

5.6 Waiver. No failure or delay on the part of either party in exercising any power or right under this License will operate as a waiver of such power or right. No single or partial exercise of any right or power under this License will preclude any further or other exercise of such right or power. No modification or waiver of any provision of this License and no consent to any departure by either party from any provision of this License will be effective until the same is in writing. Any such waiver or consent will be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on either party in any circumstances will entitle such party to any other or further notice or demand in similar or other circumstances.

5.7 Entire License. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There is no representation, warranty, collateral term or condition or collateral agreement affecting this License, other than as expressed in writing in this License.

5.8 Invalidity of Particular Provision. If any provision of this License or any part of any provision (in this section called the “Offending Provision”) is declared or becomes unenforceable, invalid or illegal for any reason whatsoever including, without limiting the generality of the foregoing, a decision by any competent courts, legislation, statutes, bylaws or regulations or any other requirements having the force of law, then the remainder of this License will remain in full force and effect as if this License had been executed without the Offending Provision.

5.9 Interpretation. Unless otherwise specifically provided in this License, time will be of the essence of this License and of the transactions contemplated by this License. The remedies provided to the parties under this License are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which either of the parties is entitled to seek at law, in equity or by statute. No change or modification of this License will be valid unless it is in writing and signed by each party to this License. Nothing in this License will make or be construed to make You and Licensor partners or agents of each other or to create any other relationship by which the acts of either may bind the other or result in any liability to the other. The headings and captions of sections and articles contained in this License are all inserted for convenience of reference only and are not to be considered when interpreting this License. Subject to the restrictions on assignment contained in this License, this License will enure to the benefit of and be binding on the parties and their respective successors and assigns.