Terms and Conditions – mark.rsassessment.com
Terms and Conditions
1.1 In these Terms, unless the context requires otherwise, the following expressions have the following meanings:
"Licensee", "You" and "Your": the school, institution, government body or other legal entity entering into this Licence Agreement on registration of one or more of their users on the Website.
"Licensor": Rising Stars UK Limited, Carmelite House, 50 Victoria Embankment, London EC4Y ODZ
"Authorised User": (a) every member of staff currently employed by the Licensee and (b) every pupil of the Licensee.
“Data Controller”: defined in the Data Protection Legislation
“Data Protection Legislation”: The Data Protection Act 1998 or any other laws which come into force amending or replacing it.
"Licensed Material": the software enabling access, and all material and content (other than Pupil Data) available for access on the Website or derivatives thereof from time to time together with any additional material that the Licensor makes available to the Licensee.
“Personal Data”: data which relate to a living individual who can be identified as set out in the Data Protection Legislation.
“Pupil Data”: any information about or data relating to pupils entered onto the Website by an Authorised User or the Licensee
"Term": the subscription period for which the Licensee has purchased access to the relevant part or parts of the Licensed Material by payment of a subscription fee or purchase of Test Credits in accordance with Clause 5, or otherwise for as long as the Licensee continues to use the site (with no continuous gap in use of a year or more)
“Test Credit”: The units allocated to the Licensee on purchase in order to access the interactive tests constituting part of the Licensed Material.
"Commencement Date": the date of registration on the Website or (for paid for services) the date the Licensor issues the Licensee with an invoice in respect of the Licence Fee or Test Credits and the subscription period (the Term) begins.
“Website”: The Rising Stars Assessment website accessed at the URL mark.rsassessment.com
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 any 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 and subject to the Licensee observing its obligations under this Agreement, and making the payments required for use of the parts of the Website only accessible on payment, the Licensor grants to the Licensee the following non-exclusive rights ("the Rights") for the Term, to:
(a) access and permit Authorised users to access at any time the Website, or as the case may be any service provided by an agent on the Licensor’s behalf, for the purpose of accessing the Licensed Material, solely for research, teaching, and assessment purposes;
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.
2.3 Title to, and ownership of all intellectual property rights in Licensed Materials (including any copies of Licensed Material 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 and shall not be reproduced for any other purpose. The Licensee acknowledges that any rights not expressly granted in this Licence are reserved to the Licensor.
2.4 Title to and ownership of all intellectual property rights in Pupil Data is retained by the Licensee. The Licensee, as Data Controller of the Pupil Personal Data, grants the Licensor the right to use anonymised Pupil Data to produce data sets and reports accessible on the Website for research, information and assessment purposes and to improve the service provided.
2.5 Ownership of all anonymous assessment data collected pursuant to use of the Licensed Material and processed for production of reports referred to in clause 2.4 above is retained by the Licensor. The Licensor will use and publish such data only in anonymised form unless otherwise agreed with the Licensee in writing.
2.6 The Licensor may delete Pupil Data if the Licensee has not used the Licensed Material for a continuous 12 month period, or if requested to do so by the Licensee.
2.7 The Licensee is responsible for the provision of and payment for the computer hardware and software equipment and telecommunication services necessary for access to the Licensed Material. The Licensor shall not be liable for, nor issue any credits or refunds where relevant against, any 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 hardware, software and 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. The Licensor is not responsible for any technical support requirements arising from the Licensee's use of hardware, software and telecommunications services.
3. USAGE RESTRICTIONS
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:
(a) sell, distribute, license, rent or otherwise exploit the Licensed Material, any element of it, or any derivative work for any commercial purpose;
(b) make the Licensed Material, any element of it, or weblinks created by the URL Generator, available by any means to persons other than Authorised Users;
(c) make the Licensed Material, or any element of it, or weblinks created by the URL Generator, available on, or by, external 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, excepting with the written permission of The Licensor;
(d) use the Licensed Material, or weblink created by the URL Generator, to create any derivative work, product or service, or merge the Licensed Material with any other product, database, or service, excepting use within the Licensee's Virtual Learning Environment or institutional intranet;
(e) alter, amend, modify, translate, or change the Licensed Material, excepting where permission has been expressly given by The Licensor;
(f) 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
(g) 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.
4. TERM AND TERMINATION
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 periods, subject to acceptance of the terms and conditions of the Licence as amended from time to time , and payment of the Licence Fee or purchase of Test Credits where relevant.
4.2 Either party may terminate this Agreement at any time upon written notice to the other if the other party commits a serious breach of any obligation in this Agreement. Subject to clause 4.5 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.
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, 4.6 or 8.2 or by the Licensor under Clause 4.3 or 8.2 the Licensor shall repay the Licensee for any unused purchased Test Credits.
4.5 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 that contravenes the provisions of this Agreement.
4.6 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.
5. LICENCE FEE
5.1 The Licensee agrees to pay to the Licensor the invoiced charge for any purchased Test Credits or subscription charge within 30 days of the Commencement Date. If the Licensee does not pay the fees within an appropriate time frame, the Licensor will assume that the Licensee does not wish to accept the Agreement and the Agreement will terminate and the Licensee's authorised access to the Licensed Material will cease.
5.2 While the Licensor makes every effort to ensure that information on its websites is accurate, this cannot be guaranteed. Prices displayed and availability may change without prior notice.
6. LICENSEE'S UNDERTAKINGS
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 Authorised Users of the permitted use restrictions and other provisions set out in this Agreement.
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.
6.3 The Licensor shall be entitled to monitor the use of the Licensed Material through the Licensor's servers so as to monitor compliance with this Agreement.
7. WARRANTIES, UNDERTAKINGS AND INDEMNITIES
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.
7.2 Should the Licensor become aware that it is in breach of the warranty in clause 7.1 it shall be entitled to assume sole conduct of defence of any claim and shall have the right at its option:
(a) to procure the right for the Licensee to continue using the Licensed Material;
(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
(c) to replace the Licensed Material with non-infringing substitutes provided that such substitutes do not entail a material reduction in performance or function.
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.
7.4 Without prejudice to the generality of the foregoing, 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 these terms and conditions or any other misuse or abuse of the Licensed Material;
(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;
(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 authorised agent; or
(d) the Licensee or any Authorised User being unable to exercise the Rights due to the Licensed Material being unavailable as a result of any act or omission of the Licensee.
7.5 The Licensee shall use its best efforts to safeguard the intellectual property rights and confidential information of the Licensor including without limitation the terms of this Licence, and proprietary rights of the Licensor in the Licensed Material.
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 merchantability, 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.
7.7 The content of the Licensed Material is subject to change without notice.
8. FORCE MAJEURE
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.
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.
Any notice to be served on either party by the other made under this Agreement shall be in writing sent by electronic mail, prepaid recorded delivery or registered post to the address of the addressee 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.
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.
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 lesser of £1,000 or an amount equal to the fees paid under this Agreement.
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:
(a) loss of profits, business, revenue, goodwill, anticipated savings; and/or
(b) indirect, special, incidental or consequential loss or damage.
(c) any inaccuracy in the Licensed Material.
10.4 It is up to You to assess the content of the Licensed Material including Your reliance on the accuracy, completeness or usefulness of such content. You agree and acknowledge that any reports provided by the Licensor based on the Pupil Data are provided for information purposes only, and that You rely on any such content at Your sole and entire risk.
11. 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.
In the event that any provision of this Agreemenet is held by a court or other tribunal of competant juridistion to be contrary to law, the remaining proviions of this Agreemenet will remain in fulol force and effect.
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.