Agreement between the NLA and the ANU for the loan of certain Library Material to the ANU

THIS AGREEMENT is made on the 18th day of December 2006 between NATIONAL LIBRARY OF AUSTRALIA ABN 28 346 858 075 a body corporate established under the National Library Act, 1960 (Cth) (the Library) of the first part

AND

AUSTRALIAN NATIONAL UNIVERSITY ABN 52 234 063 906 a body corporate under the Australian National University Act, 1991 (Cth) (the University) of the second part

WHEREAS:

A. The Library owns the Library Material specified in the Schedule to this Agreement

B. The Library Material is currently on loan to the University of New South Wales.

C. The Library wishes to make the Library Material available on loan to the University and the University wishes to accept the Library's offer of loan on the following terms and conditions.

NOW IT IS AGREED as follows:

Schedule

1. Definitions

1.1 In this agreement, unless the contrary intention appears:

“Libraries Australia” is the brand name provided to a suite of services supplied by the Library to nominated library users;

"Library Material" means the Library Material specified in the Schedule to this Agreement;

"Working Day" means any day other than a Saturday, Sunday or public holiday in the Australian Capital Territory.

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2. Owner's Rights

2.1 The University acknowledges that -

(a) the Library is the sole owner of the Library Material; and

(b) the Library has the right, upon reasonable notice given to the University, to recover, to relocate, or to dispose of, any item in the Library Material at any time.

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3. Period of Loan

3.1 The Library agrees to lend the Library Material to the University for a period of ten (10) years from the date of the Agreement or until this Agreement is earlier terminated in accordance with clause 11.

3.2 If the University wishes to borrow the Library Material for a further period of ten (10) years commencing upon the expiration of the term specified in clause 3.1 and:

(a) the University gives notice to the Library of that wish not less than 3 months prior to the expiration of the term of this Agreement; and

(b) any breach or default under this Agreement by the University prior to that notice which has been notified to the University by the Library has been either waived or rectified,

then the Library will renew the loan of the Library Material to the University for that further period on the same terms as are contained in this Agreement.

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4.Transfer

4.1 The transfer of the Library Material from the University of New South Wales to the University shall be arranged by the Library in consultation with the University.

4.2 All costs incurred -

(a) in the transfer of the Library Material; and

(b) in the packaging of the Library Material prior to transfer; and

(c) as otherwise agreed by the Library,

shall be borne by the Library.

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5.Storage

5.1 The University shall, while the Library Material is in its possession or control, be responsible for the proper storage of the Library Material.

5.2 Any costs incurred by the University in storing the Library Material while it is held in its possession or control shall be borne by the University.

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6.Maintenance

6.1 Any loss of, deterioration in or damage to the Library material while it is in the possession or control of the University shall be reported by the University to the Library and the University shall where possible repair the Library Material. The Library accepts that some deterioration will occur to the Library Material as a result of the passage of time and that such deterioration is beyond the control of the University.

6.2 No extensive repair of damage to the Library Material shall be undertaken by the University without the authority of the Library.

6.3 Any costs incurred by the University in -

(a) repairing or maintaining an item in the Library Material; or

(b) replacing an item in the Library Material which is lost or damaged beyond repair,

shall be borne by the University.

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7.Inspection

7.1 The University shall, upon reasonable notice given to it by the Library, allow the Library, or any persons authorised in writing by the Library, access to the Library Material for purposes of inspection.

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8.Stocktaking

8.1 The University shall, at all times as are agreed between the University and the Library-

(a) conduct a stocktake of the Library Material held in its possession or control; and

(b) furnish a report to the Library on the results of that stocktake.

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9.Accessibility

9.1 The University shall allow access to the Library Material to users of the Library Material upon the same conditions as apply to access to the University's library collections.

9.2 The University shall allow access to the Library Material upon such conditions as are determined by the University

9.3 The parties agree that records and location data of the Library Material will be made available on Libraries Australia at some stage during the period of the loan.

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10.Return of Library Materials

10.1 The Library may, upon reasonable notice given to the University, request the return of all or any part of the Library Material for the purpose of holding, exhibiting, relocating or disposing of such part. The costs of such return will be borne by the Library.

10.2 Where a request is made by the Library under clause 10.1, the University shall comply with the terms of such request, including any terms specifying the date and mode of return and the person or persons effecting the return.

10.3 The University may, upon reasonable notice given to the Library, return all of the Library Material to the Library at any time during the period of this Agreement and, on such return, this Agreement shall be deemed to be at an end. The costs of such return to the Library, or any other library which agrees to take the collection on long term loan, will be borne by the University.

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11.Termination

11.1 If the University fails within fourteen (14) Working Days after receipt of written notice, to remedy any default in performance of its obligations to observe the terms and conditions of the Agreement, the Library may, by written notice, terminate the Agreement and recover from the University any loss or damage suffered by the Library.

11.2. If the University refers the termination notice to an arbitrator in accordance with clause 13 no action to terminate the Agreement will be taken by the Library unless the ultimate decision of the arbitrator supports the allegation of default contained in the termination notice.

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12.Acknowledgement

12.1 Where the University uses any part of the Library Material for the purposes of exhibition, publication, display or other promotion, the University shall acknowledge that -

(a) the Library is the owner of the Library Material; and

(b) the Library Material has been lent to the University by the Library.

12.2 The Library Material shall be known as the Hallstrom Pacific Collection. The Hallstrom Pacific Collection is a formed collection. No further items will be added to it by the Library or the University, other than as required under clause 6.3.

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13.Arbitration

13.1 In the event of any dispute or difference arising between the Library and the University regarding this Agreement which cannot be settled by negotiation between the parties, such dispute or difference shall forthwith be referred for determination at Canberra, in the Australian Capital Territory, or any other place agreed between the parties, by an arbitrator agreed upon by both parties.

13.2 If the parties are unable to agree upon an arbitrator, the matter shall be dealt with in accordance with the laws relating to arbitration for the time being in force in the Australian Capital Territory.

13.3 The parties may be legally represented in any such arbitration proceedings without leave of the arbitrator.

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14.Indemnity and Insurance

14.1 The University agrees to indemnify and keep indemnified, the Library against any loss of or damage to property or injury to or death of any person and all actions, claims, demands, costs, losses or expenses of any nature whatsoever which may be brought or made or claimed against it arising from the negligence, unlawful act or wilful misconduct of the University in connection with matters related to this Agreement, except to the extent (if any) that the action, claim, demand, cost, loss, damage, or expense is due to the negligence, unlawful act or wilful misconduct of the Library.

14.2 The University shall take out all appropriate insurance (including workers compensation and public liability insurance) to cover any injuries or loss which may be suffered by its employees while carrying out duties covered by, or associated with, this Agreement and any loss or damage caused to third parties and the University shall provide the Library on request with certificates in respect of the relevant insurance policies.

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15.Notices

15.1 Any notice required to be given under, or for the purposes of, this Agreement shall be may be delivered by prepaid postage, by hand, by facsimile or by e-mail transmission to each of the parties at the address set out below or such other address as either party may specify by notice in writing to the other:

(a) in the case of the Library, to:

The Director-General
National Library of Australia
Canberra ACT 2600

(b) in the case of the University, to:

Director, Scholarly Information Services & University Librarian
Division of Information
JB Chifley Building (Number 15),
The Australian National University
Canberra, ACT 0200

16.Variation

16.1 This Agreement shall not be varied or otherwise amended unless in writing and signed by both parties

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17.Entire Agreement

17.1 This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, statements, communications, negotiations, arrangements, understandings and agreements, either oral or written, between the parties with respect to the subject matter of this Agreement

18.Applicable Law

18.1 This Agreement shall be governed by and be construed in accordance with the law for the time being in force in the Australian Capital Territory and the parties agree to submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.

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Schedule

Specification of Library Material

The Library Material which is the subject of this Agreement is the Hallstrom Pacific Collection comprising that Material detailed on the accompanying list entitled Hallstrom Pacific Collection.


Last updated 20 March 2007

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