| 1. |
INTERPRETATION |
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| 1.1 |
In
these Terms, unless the context requires otherwise, the following
expressions have the following meanings:
"Authorized User": (a) every member of staff
employed by the Licensee and (b) every student of the Licensee.
"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.
"Licensee": the school entering into this License
Agreement
"Licensor": Hodder and Stoughton Ltd, 338 Euston Road, London NW1 3BH
"Term": the subscription period for which the
Licensee has purchased a license to access the Licensed Material
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| 1.2 |
The
Agreement contains the entire agreement and undertaking between
the parties
relating to the Licensed Material and supersedes any prior agreement.
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| 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.
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| 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.
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| 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.
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| 2. |
DELIVERY
AND GRANT OF RIGHTS |
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| 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:
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| (a) |
access
and permit Authorised users to access at any time the Licensor's
server,
or as the case may be any service provided by an agent on its
behalf, for the
purpose of accessing the Licensed Material, for research, teaching,
and private
study purposes;
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| (b) |
permit
Authorized Users to print and/or download individual articles
and other
individual items from searches of the Licensed Material for
research teaching,
and private study purposes;
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| 2.2 |
The
Rights are personal to the Licensee and do not extend to its
subsidiary or
parent organizations, or to any other related or affiliated
organizations. The
Licensee may not assign, sub-license, transfer, charge or otherwise
dispose
of its rights under this Agreement without the prior written
consent of the Licensor.
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| 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.
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| 2.4 |
The
Licensee is 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 the Licensee in relation to such telecommunication services
or those incurred
contacting the Licensor. The Licensee accepts that the Licensor
has no control over
such telecommunication services and that the Licensor shall
have no liability to the Licensee for the acts or omissions
of providers of telecommunication services or for
faults in or failures of their apparatus.
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| 3. |
USAGE
RESTRICTIONS |
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Except
as expressly permitted in Clause 2.1, the Licensee warrants
that it will not,
nor will it license or permit others to, directly or indirectly,
without the Licensor's
prior written consent:
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| (a) |
sell,
distribute, license, rent or otherwise exploit the Licensed
Material, or any
element of it, for any commercial purpose; |
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| (b) |
make
the Licensed Material, or any element of it, available by any
means to
persons other than Authorized Users;
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| (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; |
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| (d) |
remove or obscure the Licensor's copyright notice from the Licensed
Material including hard-copy print-outs; |
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| (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;
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|
| (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 |
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| (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. |
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| 4. |
TERM
AND TERMINATION |
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| 4.1 |
This Agreement
shall begin on the date hereof and continue for an initial period
of the Term. The Term may be renewed for additional one year
periods, subject
to payment of appropriate fees and acceptance thereof by the
Licensor, in
accordance with Clause 5.1.
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| 4.2 |
Either
party may terminate this Agreement at any time upon written
notice to the
other if the other party defaults by failing to perform any
obligation on its part. The termination will become effective
thirty days after receipt of written notice unless,
in the case of a remediable default, during the relevant period
of thirty days the
defaulting party has remedied the default.
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| 4.3 |
Licensor
may terminate this Agreement at any time upon thirty days' written
notice
to the Licensee.
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| 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 8.2 or by the Licensor under
Clause 4.3 or 8.2
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.
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| 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.
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| 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.
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| 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.
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| 5. |
LICENCE
FEE |
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| 5.1 |
The Licensee
agrees to pay to the Licensor the Licence Fee within 30 days
of the Commencement Date. Provided that the Licensor is satisfied
with the manner in
which the Licensee has performed its obligations under this
Agreement the Licensee
will receive no later than 30 days before the end of the Term
an invoice for fees for renewal of the Agreement for a further
period of one year. If the Licensee does not
pay the renewal fees by the end of the Term, the Licensor will
assume that the
Licensee does not wish to renew the Agreement and the Agreement
will terminate.
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| 5.2 |
All
amounts payable by the Licensee under this Agreement shall be
exclusive
of any sales, use, value added or similar taxes.
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| 6. |
LICENSEE'S
UNDERTAKINGS |
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| 6.1 |
The Licensee
will take all reasonable steps to ensure that the Licensed Material
is used only in accordance with the terms and conditions of
this Agreement and
shall inform Authorized Users of the permitted use restrictions
and other provisions
set out in this Agreement.
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| 6.2 |
The
Licensee will notify the Licensor immediately of infringements
that come to
the Licensee's notice and the Licensee agrees to co-operate
with the Licensor as appropriate to stop further abuse should
it occur.
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| 6.3 |
Subject
to Clause 4.5, nothing in this Agreement shall make the Licensee
liable for
breach of the terms and conditions of this Agreement by any
Authorized User as
long as the Licensee complied with the terms of Clauses 6.1
and 6.2 and did not
cause, intentionally assist in or encourage such breach nor
allowed it to continue
after having received notice of such breach whether from the
Licensor or otherwise. However, in the event of continuing abuse
the Licensor shall be entitled to terminate
this Agreement.
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| 6.4 |
The Licensor
shall be entitled to monitor the use of the Licensed Material
through
the Licensors servers so as to monitor compliance with this
Agreement.
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| 7. |
WARRANTIES,
UNDERTAKINGS AND INDEMNITIES |
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| 7.1 |
The
Licensor warrants to the Licensee that it has full rights and
authority to
grant the Rights to the Licensee and that the use by the Licensee
of the Licensed
Material in accordance with this Agreement will not infringe
the rights of any
third party.
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| 7.2 |
The
Licensor shall indemnify the Licensee for the amount of any
award of damages
against the Licensee by a court of competent jurisdiction as
a result of any claim
arising from a breach of the warranty in Clause 7.1 provided
that the Licensor
shall be entitled to assume sole conduct of any defence and
shall have the right
at its option:
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| (a)
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to
procure the right for the Licensee to continue using the Licensed
Material;
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| (b) |
to
make such alterations, modifications or adjustments to the Licensed
Material
that it becomes non-infringing without incurring a material
reduction in performance
or function; or
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| (c)
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to
replace the Licensed Material with non-infringing substitutes
provided that
such substitutes do not entail a material reduction in performance
or function.
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| 7.3 |
The
Licensor shall not be liable to the Licensee for any loss or
damage whatsoever resulting from omissions or inaccuracies in
the Licensed Material regardless of how
caused. The Licensor does not warrant that access to the Licensed
Material will be
free from errors or faults.
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| 7.4 |
Without
prejudice to the generality of the foregoing, the Licensor shall
not be liable
for any claim arising from:
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| (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; |
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| (b) |
the failure by the Licensee to implement recommendations previously
advised by the Licensor in respect of, or solutions for, faults
in the Licensed Material; |
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| (c)
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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; or |
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| (d) |
the
Licensee or any Authorized User 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.
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| 7.5 |
The
Licensee 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.
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| 7.6 |
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
ERCHANTABILITY, QUALITY, ACCURACY OR FITNESS FOR A PARTICULAR
PURPOSE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS CLAUSE
7,
ALL CONDITIONS, WARRANTIES, TERMS, REPRESENTATIONS, AND
UNDERTAKINGS EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN
RESPECT OF THE LICENSED MATERIAL ARE TO THE FULLEST EXTENT PERMITTED
BY LAW EXPRESSLY EXCLUDED.
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.
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| 7.7 |
The
content of the Licensed Material is subject to change without
notice.
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| 8. |
FORCE
MAJEURE |
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| 8.1 |
Either
party'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.
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| 8.2 |
If
any event set out in Clause 8.1 shall continue for a period
in excess of 30 days
either party shall be entitled to terminate this Agreement forthwith
by written notice
to the other.
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| 9. |
NOTICE |
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Any
notice to be served on either party by the other made under
this Agreement
shall be in writing sent by prepaid recorded delivery or registered
post to the address
of the addressee as set out in the Schedule or to such other
address as notified by
either party to the other as its address for service of notices
and all such notices
shall be deemed to have been received within 48 hours after
posting.
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| 10. |
LIABILITY |
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| 10.1 |
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.
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| 10.2 |
Except as provided
for in Clause 10.1 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.
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| 10.3 |
Except
as provided for in Clause 10.1, notwithstanding anything else
contained
in this Agreement in no event shall the Licensor be liable to
the Licensee for:
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| (a) |
loss
of profits, business, revenue, goodwill, anticipated savings;
and/or
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| (b) |
indirect,
special, incidental or consequential loss or damage.
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| (c) |
any
inaccuracy in the Licensed Material. |
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| 11. |
GOVERNING
LAW |
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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.
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| 12. |
SEVERABILITY |
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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.
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| 13. |
WAIVERS |
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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.
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