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Users and Friends of Hamilton Trust Agreement
1. Definitions
1.1 Confidential Information means any information that is proprietary or confidential which is expressly identified as such by the Party making the disclosure.
1.2 Database means the database(s) accessible from the Website which contain the various Topics and Plans accessible by Friends and Users as part of the Friend’s Services and User’s Services.
1.3 Donation means a donation of £24 made to the Trust by a User in order to be Friend of the Trust.
1.4 Friend means You who have selected the ‘Friend of Hamilton’ option on the Website; duly completed the relevant registration process; duly made the Donation to the Trust; and have successfully created a Username and Password.
1.5 Friend’s Services means the friend’s services defined in Clause 3.2 which are accessible by a Friend from the Website.
1.6 Parties means the Trust and the User or Friend (as the case and context requires).
1.7 Password means the password in respect of a unique Username created by (as the case may be) a User or a Friend which would allow (as the case may be) such User or Friend to gain access (as the case may be) to the User’s Services or Friend’s Services.
1.8 Plans means the various plans (including the Literacy Units, Mathematics Teaching Sequence and Science Strands) made available by the Trust as part of the User’s Services and Friend’s Services on the relevant pages of its Website.
1.9 Services means the Friend’s Services and the User’s Services.
1.10 Software means the various software deployed by the Trust on the Website and the Database to enable its Users and Friends to access the Services.
1.11 Topic means the various topics made available by the Trust as part of the User’s Services and Friend’s Services on the relevant pages of its Website.
1.12 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.
1.13 User means You who have duly completed the free User registration process and who have successfully created a Username and Password.
1.14 User’s Services means the User’s services defined in Clause 2.2 which are accessible by a User from the Website.
1.15 Username means a unique username created by (as the case may be) a User or Friend, which, when the relevant Password is entered will grant such User or Friend (as the case may be) access to the relevant Services.
1.16 Website means http://hamilton-trust.org.uk or such variations to the name of the aforesaid domain name.
1.17 You means the person completing the relevant registration form available on the Website and whose details are on such registration form in order to be a User and/or Friend of the Trust.
1.18 You warrant that you are at least 18 years of age and that you are the person whose details have been incorporated into the relevant registration form as part of the process of registering (as the case may be) to be a User or Friend of the Trust.
2. User
2.1 Upon duly completing the relevant registration process and creating a Username and Password, You will be registered as a User of the Trust (which is free of charge).
2.2 The Trust grants to the User a non-exclusive and non-transferable licence to access the following services (hereinafter as ‘User’s Services’):
2.2.1 two Topics selected by the Trust for each age range;
2.2.2 Plans which are as follows:
2.2.2.1 all Science Strands;
2.2.2.2 all Mathematics Teaching Sequences; and
2.2.2.3 at least 2 English Literacy Units.
for the User’s own use and/or as teaching aids provided that such use does not prejudice the Trust commercially. For the avoidance of doubt, nothing in this agreement grants to the User any rights whatsoever in or relating to the source codes in the Software or to sell the Plans or Topics to third parties.
2.3 The authority to access the User’s Services commences upon the relevant Username and Password being successfully created by the User and ends if this Agreement is terminated under Clause 8.
2.4 Subject to Clause 2.2, the User may:
2.4.1 search, view, copy and print out material and information on the User’s Services section of Database; and
2.4.2 copy, revise, customise and use the information from the User’s Service section of the Database for the purposes set out in Clause 2.2;
2.5 The User shall 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, User’s Services, Usernames and Passwords to third parties, without the Trust’s prior written consent; or
2.5.4 transfer, temporarily or permanently, any rights or obligations under this Agreement.
3. Friend
3.1 Upon duly completing the relevant registration process, creating a Username and Password and making the Donation, You will be registered as a Friend of the Trust. The Donation will be collected by Hamilton Education Limited on behalf of the Trust.
3.2 In consideration of the Friend making the Donation to the Trust, the Trust grants to the Friend a non-exclusive and non-transferable licence for a period of 12 months calculated from the date the donation was made, to access the following services (hereinafter as ‘Friend’s Services’):
3.2.1 all Topics for a single age group
3.2.2 Plans which are as follows:
3.2.2.1 all Science Strands;
3.2.2.2 all Mathematics Teaching Sequences; and
3.2.2.3 all English Literacy Units for a single age group (only applies to the Literacy)
as are made available on the relevant section of the Website for the Friend’s own use and/or as teaching aids provided that such use does not prejudice the Trust commercially. For the avoidance of doubt, nothing in this agreement grants to the Friend any rights whatsoever in or relating to the source codes in the Software or to sell the Plans and/or Topics to third parties.
3.3 The authority to access the Friend’s Services commences upon the relevant Username and Password being successfully created by the Friend on donation and ends after 12 months or earlier if this Agreement is terminated under Clause 8.
3.4 Subject to Clause 3.2, the Friend may:
3.4.1 search, view, copy and print out material and information on the Friend’s Services section of Database; and
3.4.2 copy, revise, customise and use the information from the Friend’s Service section of Database for the purposes set out in Clause 3.2;
3.5 The Friend shall not:
3.5.1 attempt to duplicate, modify, disclose or distribute any portion of the Software;
3.5.2 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;
3.5.3 disclose the Software, Friend’s Services, Usernames and Passwords to third parties, without the Trust’s prior written consent; or
3.5.4 transfer, temporarily or permanently, any rights or obligations under this Agreement.
4. User’s and Friend’s Obligations
4.1 Subject to Clauses 2 and 3 above, the User or Friend (as the case may be) shall not:
4.1.1 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 relevant Services, except as permitted under this Agreement or authorised by the Trust in writing;
4.1.2 make available (as the case may be) the User’s or the Friend’s Username and Password and/or any part of the relevant Services available to anyone. Where such disclosure of Username and/or Password occurs, the User or the Friend (as the case may be) shall informs the Trust immediately so that the Trust can take appropriate security measures. In addition, where the Friend or User (as the case may be) wishes to terminate this Agreement with the Trust, the User or the Friend (as the case may be) agrees to inform the Trust of the same so that the Trust can update the system; and/or
4.1.3 use the relevant Services and/or information extracted from the relevant section of the Database for any illegal, fraudulent or immoral purposes.
4.2 The User or the Friend (as the case may be) shall notify the Trust immediately of any errors or inaccuracies in respect of any information and/or data extracted from the relevant section of the Database. In this regard, the User or the Friend (as the case may be) shall contact the Trust by emailing the Trust at enquiries@hamilton-trust.org.uk.
4.3 The Friend or the User (as the case may be) acknowledges that the Trust and the Trust’s licensors own all intellectual property rights in the Software, Database and the Services. Except as expressly stated in this Agreement, this Agreement does not grant the Friend or the User (as the case may be) 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 Services.
4.4 The User or the Friend (as the case may be) acknowledges that any presentation, teaching, setting of home work and/or any use by the User or Friend (as the case may be) which incorporates and/or which is based on the materials and information derived from the User’s Services or Friend’s Services are based solely (as the case may be) on the User’s or Friend’s professional skill and judgment. The Trust shall not be liable for any loss suffered by the User, Friend, their students, their schools, their institutions or organisation, their colleagues and/or users as a result of the User or Friend (as the case may be) using and/or relying on the information and/or materials available on the relevant section of the Database as part of the User’s Services or Friend’s Services (as the case may be).
4.5 The Friend or the User (as the case may be) agrees to defend, indemnify and hold the Trust harmless against claims, actions, proceedings, losses, damages, expenses and all costs arising out of or in connection with the Friend’s or the User’s (as the case may be) use of the Software, Database and/or the relevant Services, provided that:
4.5.1 the Friend or the User (as the case may be) is given prompt notice of any such claim by the Trust;
4.5.2 the Trust provides reasonable co-operation to the Friend or the User (as the case may be) in the defence and settlement of such claim, at the Friend’s or the User’s (as the case may be) expense; and
4.5.3 the Friend or the User (as the case may be) is given sole authority to defend or settle the claim.
4.6 The Friend or the User (as the case may be) is responsible for configuring its computers and maintaining its internet connection in order to access the relevant Services and to provide for its own virus protection software.
5. The Trust’s Obligations
5.1 Subject to Clauses 4.2 and 4.4, the Trust 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 Trust warrants that to the best of its knowledge, the Services, Database and Software will not infringe any patents, designs or copyright of third party. In the event the User or Friend (as the case may be) is aware and/or has reasonable suspicion that the Services, Database and/or Software may infringe the intellectual property or any third parties, the User or Friend (as the case may be) agrees:
5.2.1 to notify the Trust as soon as it is practicable of any such claim being made;
5.2.2 that the Trust 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 User or Friend (as the case may be) shall give the Trust all information and assistance reasonably necessary (at the Trust’s expense) to defend or settle such claim and the User or Friend (as the case may be) shall not compromise or settle such claim save that under no circumstances shall the Trust admit liability for and/or on behalf of the Friend or User without such User’s or the Friend’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 Trust shall be entitled at its own expense and option either to:
5.3.1 procure the right (as the case may be) for the User or Friend to continue using the relevant Services, Software and/or Database;
5.3.2 make such alterations, modifications or adjustments to the relevant Services, Software and/or Database so that they become non-infringing, without incurring a material diminution in performance or function;
5.3.3 replace the relevant Services, 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, Software and/or Database; and/or
5.3.5 in the case of the Friend, return the Donation to the Friend.
5.4 Notwithstanding Clause 5.3, the Trust shall have no liability if the alleged infringement is based on:
5.4.1 use (as the case may be) by the User or the Friend of the Software and/or Database in a manner contrary to the terms of this Agreement; or
5.4.2 use (as the case may be) by the User or the Friend of the Software and/or Database after notice of the alleged or actual infringement from the Trust or any other person.
5.5 The Parties agree that Clauses 5.3 and 7 set out the User’s or the Friend’s (as the case may be) sole and exclusive rights and remedies, and the Trust’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
5.6 The Trust will take reasonable steps to ensure that relevant sections of the Database and Software that the Trust supplies to User or the Friend (as the case may be) as part of the relevant Services are virus-free. Notwithstanding the foregoing, the Trust makes no representation or warranty that the whole or any part of the relevant Services will be accessible at all times or be virus free. The Trust reserves the right, without notice, to suspend temporarily or alter the operation of the relevant Services for legal, regulatory or technical reasons. Where commercially feasible, the Trust will notify (as the case may be) the User or the Friend in advance of planned downtime, which, if reasonably practicable, will be scheduled outside of normal business hours in the United Kingdom.
5.7 The Trust 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 Trust gives the User or the Friend (as the case may be) no warranty or assurance, except as set out in Clause 5 above. The User or the Friend (as the case may be) acknowledges that all implied warranties and conditions are excluded to the maximum extent permitted by law.
7.2 This Clause sets out the Trust’s entire financial liability (including any liability for the acts or omissions of Trust’s employees, agents and sub-contractors) to the User or the Friend (as the case may be) in respect of:
7.2.1 any breach of this Agreement;
7.2.2 any use (as the case may be) made by the User or the Friend of the relevant 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 Trust excludes all liability for any loss or damage including consequential loss and loss of business arising from the User’s or the Friend’s (as the case may be) inability to access the Services and/or errors contain in any information forming part of the Services or the relevant sections of the Database.
7.4 Notwithstanding any provisions in this Agreement, the Trust does not exclude liability for death or personal injury which is due to the Trust’s negligence, fraud and/or fraudulent misrepresentation.
7.5 Subject to Clauses 7.3 and 7.4, the Trust’s maximum liability for any loss arising from the Trust’s breach of this Agreement or negligence shall be limited to £100.
8. Termination
8.1 This Agreement may be terminated by the Trust if the Friend or User (as the case may be) is in material breach of any of its terms and if the breach is not remedied within the period of 14 working days after written notice of it has been given. If the Trust is in material breach as a result of circumstances within the Trust’s control, the Friend will be entitled to a full refund of the Donation.
8.2 A Friend or User (as the case may be) may terminate this Agreement at any time by giving the Trust 7 day prior written notice by contacting the Trust at enquiries@hamilton-trust.org.uk. Where the Trust is not in breach of this Agreement, no refund of the Donation shall be given to the Friend.
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 User or Friend (as the case may be) shall take reasonable steps to delete the information extracted from the Database from any its electronic media, including the its intranet and electronic storage devices. For the avoidance of doubt, the User or Friend (as the case may be) is not required to delete or destroy printouts containing information or materials from the Database that the User or Friend (as the case may be) 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. General Provisions
9.1 The rights provided under this Agreement are granted (as the case may be) to the User or the Friend only.
9.2 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.
9.3 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
9.4 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.
9.5 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.
9.6 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.
9.7 This Agreement shall be govern under English law and the Parties submit to the non-exclusive jurisdiction of the English courts.
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