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SCHOOL SUBSCRIBERS AGREEMENT
This Agreement applies to SchooI (defined below) and Hamilton Education Limited, a Private Limited Company (Limited by Guarantee) registered in England and Wales under registered number 03435012.
You warrant that you are duly authorised by your school to contract on its behalf. In addition, please note that this Agreement i.e. contract is between Hamilton Education Limited (and NOT Hamilton Trust) and your school. Therefore, Hamilton Trust is not assuming any obligation or liability towards you or your school. As the contract is between Hamilton Education Limited and your school, only your school has the right to enforce the terms of this Agreement.
If you have any suggestions or comments or if you need to contact Hamilton Education Limited, please use the contact details listed on the Website (defined below).
1. DEFINITIONS
1.1 Authorised User means a member of staff or a teacher of the School for whom the CAT Pack Administrator has successfully created a User and Password which when logged in, would enable access to the Services.
1.2 CAT Pack means the Company’s Complete Access for Teacher’s Pack entitling the School to register up to 30 of its teachers or staff members as Authorised Users.
1.3 CAT Pack Administrator means the School’s duly authorised representative whose details have been submitted to the Company as part of the registration process and who would assume the responsibility of creating Usernames and Passwords for Authorised Users to access the Services. For the avoidance of doubt, the School is entitled to change its CAT Pack Admnistrator and such change can be effected on relevant pages of the Website.
1.4 Company means Hamilton Education Limited a Private Limited Company (Limited by Guarantee) registered in England and Wales under registered number 03435012 having its registered address at 6 Northmoor Road, Oxford, Oxfordshire, OX2 6UP.
1.5 Confidential Information means any information that is proprietary or confidential which is expressly identified as such by the Party making the disclosure.
1.6 Database means the database(s) accessible from the Website which contain the Topics, Plans and Materials which are accessible by Authorised Users as part of the Services.
1.7 Materials means the various materials including homework, synthetic phonics, animated tales and facts, spelling lists and oral stories made available by the Company on the Website as part of the Services.
1.8 Parties mean the Company and the School.
1.9 Password means the password in respect of a unique Username created by the CAT Pack Administrator which enables such Authorised User to gain access to the Services. For the avoidance of doubt, an Authorised User may subsequently change the existing password for a different password.
1.10 Plans means the various plans (including the Literacy Units, Mathematics Teaching Sequence and Science Standards) made available by the Company on the Website as part of the Services.
1.11 School means the school whose name and details have been submitted to the Company as part of the registration process by You.
1.12 Services means the provision of and access granted to all Plans, Topics and Materials by the Company to Authorised Users.
1.13 Small CAT Pack means the Company’s Complete Access for Teacher’s Pack entitling the School to register up to 5 of its teachers or staff members as Authorised Users.
1.14 Software means the various software deployed by the Company and/or is licensors on the Website and the Database to enable the School and its Authorised Users to utilise the Services.
1.15 Subscription means the annual subscription fees paid by the School to the Company of (i) £120.00 plus VAT where such School subscribes to the CAT Pack option; or (ii) £90.00 plus VAT where such School subscribes to the Small CAT Pack Option.
1.16 Topic means the various topics across different age ranges made available by the Company on the Website as part of the Services.
1.17 Trust means Hamilton Trust (Registered Charity in England and Wales with registration number 1004205) with its trading address at 1A Howard Street, Oxford, OX4 3AY.
1.18 Username means a unique username created by the CAT Pack Administrator, which, when the relevant Password is entered will grant such Authorised User access to the Services.
1.19 Website means http://www.hamilton-trust.org.uk or such variations to the name of the aforesaid domain name.
1.20 You or Your means the person completing the relevant registration form available on the Website on behalf of the School in order to gain access to the Services under a CAT Pack and/or Small CAT Pack (as the case may be).
2. LICENCE
2.1 Upon You duly completing the relevant registration process and paying the relevant Subscription on behalf of the School, Your School will be able to access the Services made available by the Company under the CAT Pack option or the Small CAT Pack option (as the case may be). The CAT Pack Administrator will be able to select teachers and/or staff members of the School as Authorised Users by creating Usernames and Passwords for such selected teachers and/or staff members of the School.
2.2 In consideration of You paying the relevant Subscription to the Company on behalf of the School, the Company grants to the School a non-exclusive and non-transferable licence (for a period of 12 months calculated from the date of registration) to:
2.2.1 select up to 5 Authorised Users where the Small CAT Pack option is selected and up to 30 Authorised Users where the CAT Pack option is selected (as the case may be); and
2.2.2 grant such Authorised Users access to the Services to use such materials and/or information downloaded for the sole purposes of using such materials and/or information as teaching aids and/or to teach students or pupils of the School provided always that such use does not prejudice the Company commercially.
2.3 For the avoidance of doubt, nothing in this Agreement grants to the School or its Authorised Users any rights whatsoever in or relating to the source codes in the Software or to sell the Topic, Plans or Materials accessed by the Authorised Users to third parties.
2.4 Subject to Clauses 2.2 and 2.3, an Authorised User may:
2.4.1 search, view, copy and print out material and information made available on the Services; and
2.4.2 copy, revise, customise and use the information accessed by the Authorised User as part of the Services
for the purposes set out in Clause 2.2.2.
2.5 The School shall not, and shall procure that each and every of the Authorised Users do not:
2.5.1 attempt to duplicate, modify, disclose or distribute any portion of the Software;
2.5.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties;
2.5.3 disclose the Software, Services and the relevant Usernames and Passwords to third parties without the Company’s prior written consent; or
2.5.4 transfer, temporarily or permanently, any rights or obligations under this Agreement.
2.6 The School is entitled at its discretion to change and/or replace its Authorised Users from time to time provided that the total number of its Authorised Users shall not at any time exceed the CAT Pack or Small CAT Pack limits (as the case may be).
3. SCHOOL’S OBLIGATIONS
3.1 Subject to Clause 2 above, the School shall not and shall procure that each and every the Authorised Users do not:
3.1.1 copy, print out or otherwise reproduce any information of materials extracted from the relevant sections of the Database nor any material relating to any part of the Services, except as permitted under this Agreement or authorised by the Company in writing;
3.1.2 make available the relevant Authorised User’s Username and Password and/or any part of the Services to anyone. In addition, where the School wishes to terminate this Agreement with the Company or change or replace an Authorised User, the School agrees to inform the Company of the same so that the Company can update the system; and/or
3.1.3 use the Services and/or information extracted from the relevant section of the Database for any illegal, fraudulent or immoral purposes.
3.2 The School will procure that the CAT Pack Administrator notifies the Company immediately of any errors or inaccuracies in respect of any information and/or data downloaded from the Database which forms part of the Services. In this regard, the CAT Pack Administrator shall contact the Company by emailing the Company at enquiries@hamilton-trust.org.uk.
3.3 The School acknowledges and shall procure that each and every Authorised User acknowledges that the Company and the Company’s licensors (including the Trust) own all intellectual property rights in the Software, Database and the Services (including the content thereof). Except as expressly stated in this Agreement, this Agreement does not grant the School and/or the Authorised User any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Database and/or the Services.
3.4 The School acknowledges and shall procure that each and every Authorised User acknowledges that any presentation, teaching, setting of home work and/or any use by the School and/or the Authorised User which incorporates and/or which is based on the materials and information derived from the Services are based solely on the School and/or such Authorised User’s professional skill and judgment. The Company and its licensors including the Trust shall not be liable for any loss suffered by the School, the Authorised User, its students, its colleagues or any other third parties as a result of the School and/or Authorised User using and/or relying on the information and/or materials available on the relevant section of the Database as part of the Services.
3.5 The School agrees to defend, indemnify and hold the Company, its licensors and the Trust harmless against claims, actions, proceedings, losses, damages, expenses and all costs arising out of or in connection with the School, the Authorised User’s and/or the School’s students or end users’ use of the Software, Database and/or the Services including the content thereof (except in the circumstances where the Software, Database and/or content of the Services infringes third party intellectual property rights in which case, Clause 5.3 shall apply), provided that:
3.5.1 the School is given prompt notice of any such claim, action and/or proceeding by the Company where the Company is aware of such claim, action and/or proceeding;
3.5.2 the Company provides reasonable co-operation to the School in the defence and settlement of such claim action and/or proceeding, at the School’s expense; and
3.5.3 the School is given sole authority to defend or settle the claim action and/or proceeding save that under no circumstances shall the School admit liability for and/or on behalf of the Company without the Company’s prior written consent, such consent not to be unreasonably withheld or delayed.
3.6 The School is responsible for the configuring of the relevant computers used to access and maintaining the internet connection in order to access the Services and to provide adequate and satisfactory virus protection software.
3.7 Save where the context otherwise requires, any references to the School in this Agreement includes references to each and every of its Authorised Users, so that, for example, the obligation not to sell the Topic, Plans or Materials to third parties imposed on the School is to be construed as an obligation on each and every of its Authorised Users and therefore, each act or omission of any of its Authorised Users which would if it were an act or omission of School be a breach of this Agreement shall be deemed a breach by the School.
3.8 Subject to Clause 3.5, if any Authorised User and/or the School’s students or end users brings any claim against the Company in connection with the subject matter of this Agreement, the School shall reimburse the Company in full for any amounts which the Company is obliged to pay to such Authorised User and/or the School’s students or end users in connection with such claim, and for any associated legal expenses reasonably and properly incurred by the Company. However, the School shall be entitled to bring a claim (subject to the exclusion and limitation of liability provisions set out in this Agreement) against the Company in respect of all losses and liabilities suffered or incurred by such Authorised User and/or the School’s students or end users which have been caused by the Company’s breach of this Agreement and which, for the purposes of this clause 3.8, only, shall be deemed to be losses and liabilities of the School.
4. REGISTRATION
4.1 You warrant that:
4.1.1 you are at least 18 years of age;
4.1.2 you are duly authorised by the School to contract on its behalf; and
4.1.3 you are entitled to select the first CAT Pack Administrator.
4.2 When You register Your School, You will be required to provide information about Yourself, the School and the CAT Pack Administrator e.g. name and contact details as part of the registration process or as part of the continued use by Your School of the School Subscription Services. You agree that any registration information that You provide to the Company will be accurate, correct and up to date.
5. THE COMPANY’S OBLIGATIONS
5.1 Subject to Clauses 3.2 and 3.4, the Company will use reasonable endeavours to ensure that the information and/or materials contained in the Database are accurate at the date of uploading such information and/or materials onto the Database or such updates to the same.
5.2 The Company warrants that to the best of its knowledge, the Services, Database and Software will not infringe any patents, designs or copyright of any third party. In the event the School or Authorised User becomes aware and/or has reasonable suspicion that the Services (and/or contents or information thereto), Database and/or Software may infringe the intellectual property of any third parties, the School agrees:
5.2.1 to notify the Company as soon as it is practicable of any such claim being made;
5.2.2 that the Company shall be entitled at its expense to conduct any litigation that may ensue and negotiations for settlement of such claim; and
5.2.3 that the School shall give the Company all information and assistance reasonably necessary (at the Company’s expense) to defend or settle such claim and the School shall not and shall procure that the Authorised Users do not compromise or settle such claim save that under no circumstances shall the Company admit liability for and/or on behalf of the School without the School’s prior written consent, such consent not to be unreasonably withheld or delayed.
5.3 In the event of such a claim set out in Clause 5.2, the Company shall be entitled at its own expense and option either to:
5.3.1 procure the right for the School and Authorised User to continue using the Services (or affected parts thereof), Software and/or Database;
5.3.2 make such alterations, modifications or adjustments to the Services (or affected parts thereof), Software and/or Database so that they become non-infringing, without incurring a material diminution in performance or function;
5.3.3 replace the Services (or affected parts thereof), Software and/or Database with non-infringing substitutes, provided that such substitutes do not entail a material diminution in performance or function;
5.3.4 remove the infringing Services (or affected parts thereof), Software and/or Database; and/or
5.3.5 reimburse the Subscription paid by the School.
5.4 Notwithstanding Clause 5.3, the Company shall have no liability if the alleged infringement is based on:
5.4.1 use by the School or the Authorised User of the Services, Software and/or Database in a manner contrary to the terms of this Agreement; or
5.4.2 use by the School or the Authorised User of the Services, Software and/or Database after notice of the alleged or actual infringement from the Company or any other person.
5.5 The Parties agree that Clauses 5.3 and 7 set out the School’s sole and exclusive rights and remedies, and the Company’s and its licensor’s (including the Trust’s) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
5.6 The Company will take reasonable steps to ensure that the Database, Services and Software are virus-free. Notwithstanding the foregoing, the Company makes no representation or warranty that the whole or any part of the Database, Services and Software will be accessible at all times or be virus free. The Company reserves the right, without notice, to suspend temporarily or alter the operation of the Services for legal, regulatory or technical reasons. Where commercially feasible, the Company will notify the School in advance of planned downtime, which, if reasonably practicable, will be scheduled outside of normal business hours in the United Kingdom.
5.7 The Company reserves the right to update and/or make changes to the Database from time to time at its sole discretion.
6. CONFIDENTIALITY
6.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party's Confidential Information shall not be deemed to include information that:
6.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;
6.1.2 was in the other Party's lawful possession before the disclosure;
6.1.3 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
6.1.4 is independently developed by the receiving Party, which independent development can be shown by written evidence; or
6.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
6.2 Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than those contemplated under this Agreement.
6.3 Each Party shall use reasonable endeavours to ensure that the other's Confidential Information to which it has access is not disclosed or distributed in violation of the terms of this Agreement.
7. EXCLUSION AND LIMITATION OF LIABILITY
7.1 The Company gives the School no warranty or assurance, except as set out in Clause 5 above. The School acknowledges that all implied warranties and conditions are excluded to the maximum extent permitted by law.
7.2 This Clause 7 sets out the Company’s entire financial liability (including any liability for the acts or omissions of the Company’s employees, agents, sub-contractors and licensor (including the Trust)) to the School in respect of:
7.2.1 any breach of this Agreement;
7.2.2 any use (as the case may be) made by the School and/or its Authorised Users in relation to the Services, Database or the Software or any part of them; and
7.2.3 any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this Agreement.
7.3 Subject to Clause 7.4, except as expressly and specifically provided in this Agreement, the Company excludes all liability for any loss or damage including consequential loss and loss of business arising from the School’s inability to access the Services and/or errors contained in any information forming part of the Services or the Database.
7.4 Notwithstanding any provisions in this Agreement, the Company does not exclude liability for death or personal injury which is due to the Company’s negligence, fraud and/or fraudulent misrepresentation.
7.5 Subject to Clauses 7.3 and 7.4, the Company’s maximum liability for any loss arising from the Company’s breach of this Agreement, negligence or under Clause 7.2 shall be limited to the Subscription paid by the School for the current subscription period.
8. TERMINATION
8.1 This Agreement may be terminated by the Company if the School or its Authorised User is in material breach of any of the terms of this Agreement and if the breach is not remedied within the period of 14 working days after written notice of it has been given. If the Company is in material breach as a result of circumstances within the Company’s control, the School will be entitled to a full refund of the Subscription but not otherwise unless otherwise agreed by the Company.
8.2 A School may terminate this Agreement at any time by giving the Company 7 days prior written notice by contacting the Company at enquiries@hamilton-trust.org.uk. Where the Company is not in breach of this Agreement, no refund of the Subscription shall be given to the School unless the Company agrees to do so at its sole discretion.
8.3 On termination of this Agreement for any reason:
8.3.1 all licences granted under this Agreement shall immediately terminate; and
8.3.2 subject to the exceptions in this Clause 8.3.2, the School shall take reasonable steps to and shall procure that its Authorised Users take reasonable steps to delete the information extracted from the Database from any of its electronic media, including its intranet and electronic storage devices. For the avoidance of doubt, the School or the Authorised User is not required to delete or destroy printouts containing information or materials from the Database that the School or such Authorised User made prior to termination, or copies of such printouts.
8.4 The termination of this Agreement shall not affect or prejudice the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination.
9. PRIVACY AND PERSONAL INFORMATION
9.1 The Company is committed to ensuring that the personal data of the Authorised Users and CAT Pack Administrator is protected and the Company is compliant with the Data Protection Act 1998. For information on the Company’s data protection practices, please read the Company’s privacy policy.
9.2 The School undertakes to procure that the Authorised Users and CAT Pack Administrator agree to the use of such Authorised Users’ and CAT Pack Administrator’s data in accordance with the Privacy Policy.
10. SUBSCRIPTION
10.1 The Company accepts payment through Visa and Master Card (collectively as ‘Credit Cards’), Maestro, Solo, Pay Pal, bank transfer and cheque.
10.2 No payment shall be deemed to have been received until the Company has received cleared funds.
11. GENERAL PROVISIONS
11.1 The rights provided under this Agreement are granted (as the case may be) to the School only.
11.2 This Agreement is not intended to benefit anyone other than the Parties to it and, in particular, no provisions of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a third party.
11.3 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
11.4 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
11.5 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it provisions are deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
11.6 This Agreement and such other terms and conditions set out on the Website constitute the entire agreement and understanding of the Parties and supersede any previous agreement between the Parties relating to the subject matter of this Agreement. Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently made or not) of any person (whether party to this agreement or not) other than as expressly set out in this Agreement.
11.7 This Agreement shall be governed under English law and the Parties submit to the non-exclusive jurisdiction of the English courts.
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