| 1. |
INTERPRETATION |
|
| 1.1 |
In
these Terms, unless the context requires otherwise, the following
expressions have the following meanings:
"Licensed Material": the material available
for access on the Internet at the URL [http://www.exam.net]
from time to time together with any additional material that
the Licensor makes available to the Licensor.
"Term": the subscription period for which you
have purchased a license to access the Licensed Material
"Licensor": Hodder and Stoughton Ltd, 338 Euston Road, London NW1 3BH
|
|
| 1.2 |
The
Agreement contains the entire agreement and undertaking between
the parties
relating to the Licensed Material and supersedes any prior agreement.
|
|
| 1.3 |
The
termination of this Agreement shall not prejudice the rights
and remedies of
either party against the other in respect of any prior breach
of covenant, terms,
warranty or condition.
|
|
| 1.4 |
The
failure of any party to enforce any provision of this Agreement
on any one
occasion shall not affect its right to enforce another provision
or the same
provision on another occasion.
|
|
| 1.5 |
Nothing
contained in this Agreement shall constitute or shall be construed
as
constituting a partnership, joint venture, or contract of employment
between
the parties.
|
|
| 2. |
DELIVERY
AND GRANT OF RIGHTS |
|
| 2.1 |
In
consideration of the payments made by the Licensee, and subject
to the
Licensee observing its obligations under this Agreement, the
Licensor grants
to the Licensee for the Term the following non-exclusive rights
("the Rights"), to:
|
|
| (a) |
access
the Licensed Material for research, teaching, and private study
purposes
only by means of a workstation at which you are located; or
|
|
| (b) |
print
and/or download single copies of individual articles and other
individual items
from searches of the Licensed Material ( not exceeding one per
cent of the Licensed Material in aggregate) for research teaching,
and private study purposes at the workstation at which you are
located;
|
|
| 2.2 |
The Rights are personal to you and do not extend to any other
person, employer, subsidiary or parent organization, or to
any other related or affiliated organization.
You may not assign, sub-license, transfer, charge or otherwise
dispose of your
rights under this Agreement. You will be given a user name
and password. You
will be required to enter your user name and password in order
to exercise the
Rights. You must not disclose your username or password to
any other person.
In the event that you cannot recall your username or password
or in the event
that you become aware that another person is using your username
and
password to access the Licensed Material you must immediately
inform the
Licensor. The Licensor reserves the right to issue you with
a new username
and password to replace your previous username and password
at any time.
|
|
| 2.3 |
Title
to, and ownership of, the Licensed Material (including any copies
made by
the Licensee) is not transferred to the Licensee and remains
vested in the
Licensor, subject to the Rights granted in Clause 2.1. The Licensee
acknowledges
that any rights not expressly granted in this Licence are reserved
to the Licensor.
|
|
| 2.4 |
You
are responsible for the provision of and payment for the computer
equipment
and telecommunication services necessary for access to the Licensed
Material.
The Licensor shall not issue credits or refunds against charges
incurred by you in
relation to such telecommunication services or those incurred
contacting us. You
accept that the Licensor has no control over such telecommunication
services and
that the Licensor shall have no liability to you for the acts
or omissions of providers
of telecommunication services or for faults in or failures of
their apparatus.
|
|
| 2.5
|
You
agree to pay to the Licensor the Licence Fee within 30 days. |
|
| 3. |
USAGE
RESTRICTIONS |
|
| 3.1 |
Except
as expressly permitted in Clause 2.1, you warrant that you will
not, nor
will you permit others to, directly or indirectly: |
|
| (a) |
sell,
distribute, license, rent or otherwise exploit the Licensed
Material, or any
element of it, for any commercial purpose; |
|
| (b) |
make
the Licensed Material, or any element of it, available by any
means to
persons other than Authorized Users;
|
|
| (c) |
make the Licensed Material, or any element of it, available
on, or by, electronic
bulletin boards, news groups, Web sites, FTP or any other means
of posting or
transmitting material on the Internet, an on-line service or
wide area network; |
|
| (d) |
remove or obscure the Licensor's copyright notice from the Licensed
Material including hard-copy print-outs; |
|
| (e) |
use
the Licensed Material to create any derivative work, product
or service, or
merge the Licensed Material with any other product, database,
or service; |
|
| (f) |
alter,
amend, modify, translate, or change the Licensed Material;
|
|
| (g) |
undertake
any activity which may have a damaging effect on the Licensor's
ability
to achieve revenue through selling and marketing the Licensed
Material; or |
|
| (h) |
otherwise
use the Licensed Material supplied in accordance with this Agreement
in a manner that would infringe the copyright or other proprietary
rights contained
within it; or |
|
| 3.2 |
You
and the members of your household must not disclose to any other
person,
firm or company the username or password to access this site. |
|
| 4. |
TERM
AND TERMINATION |
|
| 4.1 |
This
Agreement shall begin on the date hereof and continue for the
Term.
|
|
| 4.2 |
Either
party may terminate this Agreement forthwith at any time upon
notice
(served in accordance with this Agreement) to the other if the
other party
defaults by failing to perform any obligation on its part.
|
|
| 4.3 |
Licensor
may terminate this Agreement at any time upon thirty days' written
notice
to the Licensee.
|
|
| 4.4 |
If
termination of this Agreement occurs as a result of notice being
given by the
Licensee under Clause 4.2, 4.7 or by the Licensor under Clause
4.3
the Licensor shall repay the Licensee a rateable proportion
of the Licence Fee as represents the paid but unexpired Term
at the date of termination.
|
|
| 4.5 |
On termination
of this Agreement, the Licensee agrees to destroy, and will
instruct
all Authorized Users to destroy, all Licensed Material stored
on any digital
information storage media, including, but not limited to, system
servers, hard disks, diskettes, and back up tapes.
|
|
| 4.6 |
The Licensor
may suspend the provision of the Licensed Material to the Licensee
with immediate effect on written notice without liability if
the Licensor believes the
Licensed Material is being used in a manner which contravenes
the provisions of
this Agreement.
|
|
| 4.7 |
Either party
may terminate the Agreement forthwith on notice in writing to
the
other if the other party is unable to pay its debts or ceases
or threatens to cease
to carry on business, goes into administration, receivership
or administrative
receivership, or any event analogous to any of the foregoing
occurs in any
jurisdiction.
|
|
| 4.8 |
The
Licensor shall be entitled to audit the use of the Licensed
Material so as to
monitor compliance with this Agreement.
|
|
| 5. |
General
Provisions |
|
| 5.1 |
Without
prejudice to the generality of this Agreement, the Licensor
shall not be liable
for any claim arising from:
|
|
| (a) |
any
failure or malfunction resulting wholly or to any material extent
from the
Licensee's negligence, operator error, use other than in accordance
with the User Documentation or any other misuse or abuse of
the Licensed Product; |
|
| (b) |
the failure by you to implement recommendations previously advised
by the Licensor in respect of, or solutions for, faults in the
Licensed Material; or |
|
| (c)
|
the
decompilation or modification of the Licensed Material or its
merger with any
other program or any maintenance repair adjustment alteration
or enhancement
of the Licensed Material by any person other than the Licensor
or its authorized
agent; |
|
| (d) |
you
being unable to exercise the Rights due to the Licensed material
being
unavailable as a result of any act or omission of the Licensor
provided that the
period for which the Licensed Material is not available shall
not exceed a period of
50 hours (in aggregate) in any continuous period of 1000 hours.
|
|
| 5.2 |
Except
as otherwise expressly provided in this Clause 5, all conditions,
warranties,
terms, representations, and undertakings express or implied,
statutory or otherwise
in respect of the Licensed Material are expressly excluded |
|
| 5.3 |
You
shall use its best efforts to safeguard the intellectual property,
confidential information including without limitation the terms
of this License, and proprietary rights of the Licensor.
|
|
| 5.4 |
The
content of the Licensed Material is subject to change without
notice. |
|
| 6. |
FORCE
MAJEURE |
|
| |
The
Licensor's failure to perform any term or condition of this
Agreement as a
result of conditions beyond its control such as, but not limited
to, war, strikes,
floods, governmental restrictions, power failures, or damage
or destruction of
any network facilities or services, shall not be deemed a breach
of this Agreement.
|
|
| 7. |
NOTICE |
|
| |
Any
notice to be served under this Agreement upon the Licensor shall
be in writing
sent by prepaid recorded delivery or registered post to the
address given above addressed to the Managing Director or such
other address as may be notified by
the Licensor to you. Any notice to be served under this Agreement
upon you shall
be sent by electronic mail to the e-mail address notified by
you to the Licensor at
the time of registration or such other e-mail address as you
may notify the Licensor
or by prepaid recorded delivery or registered post to the address
provided by you
to the Licensor at the time of registration or such other address
as you shall notify
to the Licensor. Any such notice shall be deemed served, if
sent by e-mail 2 hours
after sending and, if sent by prepaid recorded delivery or registered
post 48 hours
after posting..
|
|
| 8. |
LIABILITY |
|
| 8.1 |
Neither party
excludes or limits liability to the other party for death or
personal injury caused by its own negligence or any other liability
the exclusion or limitation of which is expressly prohibited
by law.
|
|
| 8.2 |
Except as provided
for in Clause 8.1 above, the liability of the Licensor in respect
of any and all claims (whether in contract or in tort) arising
out of or in connection
with this Agreement is limited in respect of each event or series
of connected events
to the greater of £1,000 or an amount equal to the fees
paid under this Agreement.
|
|
| 8.3 |
EXCEPT
AS PROVIDED FOR IN CLAUSE 8.1, NOTWITHSTANDING ANYTHING ELSE
CONTAINED IN THIS AGREEMENT IN NO EVENT SHALL THE LICENSOR BE
LIABLE
TO YOU FOR: |
|
| (a) |
LOSS
OF PROFITS, BUSINESS, REVENUE, GOODWILL, ANTICIPATED SAVINGS;
AND/OR
|
|
| (b) |
INDIRECT,
SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE. |
|
| 8.4 |
THE
LICENSED MATERIAL IS PROVIDED "AS IS." NEITHER THE
LICENSOR NOR
ANYONE ELSE MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY,
QUALITY,ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY REPRESENTATIVE
OF THE LICENSOR OR BY ANYONE ELSE SHALL CREATE ANY WARRANTIES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES,
SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE
OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
|
|
| 8.5 |
EXCEPT AS PROVIDED IN CLAUSE 8.1, IN NO EVENT WILL THE LICENSOR
BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES, INCLUDING BUT
NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL
OR CONSEQUENTIAL DAMAGES, ARISING OUT OF: (1) THE USE OR INABILITY
TO USE THE LICENSED MATERIALS OR ANY INTERRUPTIONS IN THEIR
USE; (2) ANY INACCURACY IN THE LICENSED MATERIALS; OR (3) THE
UNAVAILABILITY AT ANY TIME OR TIMES OF CUSTOMER SUPPORT, IN
EACH CASE EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES IN ADVANCE.
|
|
| 9. |
GOVERNING
LAW |
|
| |
The
Agreement is governed by and construed in accordance with English
Law and
the parties agree to submit to the exclusive jurisdiction of
the English courts.
|
|
| 10. |
SEVERABILITY |
|
| |
In
the event any provision of this Agreement is held by a court
or other tribunal of competent jurisdiction to be contrary to
law, the remaining provisions of this Agreement will remain
in full force and effect.
|
|
| 11. |
WAIVERS |
|
| |
No provision
of this Agreement or breach thereof may be waived except in
a writing
signed by the party against whom the waiver is sought to be
enforced.
|
|
| |
|
|
