Last updated July 2019
1.1 In these Terms, unless the context requires otherwise, the following expressions have the following meanings:
“Authorised User”: all members of staff employed by the Licensee and all students of the Licensee who are granted access to the AutoMaths Website by Licensee.
“AutoMaths Website”: the website at the URL https://automaths.co.uk/
“Commencement Date”: the date the Licensee is given access to the AutoMaths Website and the Subscription Period begins.
“Licence Fee”: the fees payable by the Licensee for access to the AutoMaths Website and the Licensed Material.
“Licensed Material”: the material available for access on the AutoMaths Website from time to time, including without limitation Results Builder and Test and Assess, together with any additional material that the Licensor makes available to the Licensee in connection with the AutoMaths Website.
“Licensee”: the school or institution that accesses the Licensed Material via the AutoMaths Website in return for payment of the Licence Fee.
“Licensor”: Hodder & Stoughton Limited (on behalf of its business division, Hodder Education Group), registered office Carmelite House, 50 Victoria Embankment, London, EC4Y 0DZ.
“parties”: the Licensor and the Licensee.
“Results Builder”: the online tool provided by the Licensor on the AutoMaths Website allowing the Licensee to access, share and review interactive assessments.
“Subscription Period”: the subscription period for which the Licensee has purchased a licence to access the Licensed Material.
“Test and Assess”: the online service provided by the Licensor on the AutoMaths Website allowing Authorised Users to take assessments and track results.
2. DELIVERY AND GRANT OF RIGHTS
2.1 In consideration of the payment of the Licence Fee by the Licensee, and subject to the Licensee observing its obligations under these Terms, the Licensor grants to the Licensee during the Subscription Period the non-exclusive rights (the “Rights") to access, and permit Authorised Users to access, at any time the AutoMaths Website for the purpose of accessing the Licensed Material for teaching, private study and assessment purposes.
2.2 The Rights are personal to the Licensee and do not extend to its subsidiary or parent organisations, or to any other related or affiliated organisations. The Licensee may not assign, sub-license, transfer, charge or otherwise dispose of its rights under these Terms without the prior written consent of the Licensor.
2.3 Title to, and ownership of, all brand names, service names, product names, titles and copyright material used in or on the AutoMaths Website (including without limitation the Licensed Material and 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. The Licensee acknowledges that any rights not expressly granted to Licensee under these Terms are reserved to the Licensor.
2.4 Ownership of all email addresses, passwords of Authorised Users and any resources to which the Licensee holds intellectual property rights that the Licensee has uploaded to the AutoMaths Website (including assessment data uploaded by the Licensee or any Authorised User via the Test and Assess service) (together, “Licensee Content”) is retained by the Licensee. The Licensee grants to the Licensor a worldwide, perpetual, royalty-free licence to use the Licensee Content for the purpose of providing the AutoMaths Website and for Licensor’s legitimate business purposes including without limitation, to produce national assessment benchmarks.
2.5 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 AutoMaths Website and the Licensed Material. The Licensor will 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 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 any hardware, software and telecommunications services used to access the AutoMaths Website and the Licensed Material.
2.6 The Licensee shall use its best efforts to safeguard the intellectual property, confidential information (including without limitation these Terms) and proprietary rights of the Licensor.
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, electronic bulletin boards, news groups, websites, 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, excepting use within the Licensee's Virtual Learning Environment or institutional intranet;
(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;
(h) use the AutoMaths Website to transmit any viruses, worms, defects, Trojan horses or other malicious code or items of a destructive nature; or
(i) otherwise use the Licensed Material supplied in accordance with these Terms in a manner that would infringe the copyright or other proprietary rights contained within it.
4. TERM AND TERMINATION
4.1 These Terms shall apply for the duration of the Subscription Period, and any renewals thereof. The Subscription Period may be renewed on an on-going basis, subject to payment of the applicable Licence Fee, in accordance with clause 5.1.
4.2 The Licensor may suspend access to and/or terminate the AutoMaths Website and/or provision of the Licensed Material to the Licensee with immediate effect on written notice without liability or the obligation to reimburse any Licence Fee if the Licensor believes that Licensee is responsible for the AutoMaths Website being accessed or the Licensed Material being used in a manner that contravenes these Terms.
4.3 Licensor may terminate Licensee’s access to the AutoMaths Website and/or Licensed Materials and/or the Subscription Period without cause at any time upon thirty days' written notice to the Licensee. In these circumstances, the Licensor shall repay to the Licensee any proportion of the Licence Fee that has been paid by the Licensee in respect of any period of time after the date of termination.
4.4 On expiry of a Subscription Period (which is not renewed), the Licensee agrees to destroy, and will instruct all Authorised Users to destroy, all Licensed Material stored on any digital information storage media, including, but not limited to, system servers, hard disks, diskettes, memory sticks, recorded discs, and back up tapes.
5. LICENCE FEE
5.1 The Licensee agrees to pay to the Licensor the Licence Fee for a Subscription Period within 30 days of the Commencement Date for that Subscription Period on receipt of Licensor’s invoice. If the Licensee does not pay the fees within such 30 day period, the Licensee’s authorised access to the AutoMaths Website and 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 in respect of Licence Fee and the Licensed Material on the AutoMaths Website or any other of Licensor’s websites may change without prior notice.
6. LICENSEE'S UNDERTAKINGS
6.1 The Licensee shall inform Authorised Users of the permitted use restrictions and other provisions set out in these Terms and shall ensure that all Authorised Users comply with these Terms.
6.2 The Licensee will notify the Licensor immediately of any infringement of these Terms that come to the Licensee's notice and the Licensee agrees to cooperate with the Licensor as appropriate to stop further infringement should it occur.
6.3 Licensee shall be liable for any breach of these Terms by any Authorised User. Licensee undertakes to ensure that any breach of these Terms by an Authorised User is not allowed to continue after Licensee has received notice of such breach, whether from the Licensor or otherwise.
6.4 The Licensor shall be entitled to monitor the use of the Licensed Material through the Licensor's servers so as to monitor compliance with these Terms.
6.5 The Licensee shall be responsible for administering the registration of Authorised Users and of removing permissions for any individuals who are no longer Authorised Users including in the event that such individuals cease to be members of staff or employees of the Licensee. The Licensee shall keep an up to date list of Authorised Users and take such steps as maybe reasonable to ensure that the Authorised Users keep their contact details up to date.
6.6 The Licensee shall be responsible for ensuring that Authorised Users do not share passwords and keep these securely.
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 these Terms will not infringe the rights of any third party.
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 to:
(a) procure the right for the Licensee to continue using the Licensed Material;
(b) make such alterations, modifications or adjustments to the Licensed Material so that it becomes non-infringing without incurring a material reduction in performance or function; or
(c) 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 Licensee acknowledges and agrees that the Licensed Material is provided for information purposes only and Licensee relies on the Licensed Material at its own risk. The Licensor makes no warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, quality, accuracy or fitness for a particular purpose in respect of the Licensed Material or any information or advice given by any representative of the Licensor. 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.
7.4 The Licensee acknowledges that the content of the Licensed Material is subject to change without notice.
7.5 The Licensor undertakes to store all email addresses, passwords, resources, Results Builder data and Test and Assess data associated with the Licensee’s account for the Subscription Period (unless requested by the Licensee to delete it earlier), and, thereafter, until requested by the Licensee to delete such data. Please contact us by email at: email@example.com if you require any data uploaded to the AutoMaths Website to be deleted.
8. FORCE MAJEURE
The Licensor’s failure to perform any term or condition of these Terms 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 these Terms.
9.1 Neither party excludes or limits liability to the other party for death or personal injury caused by its own negligence, fraudulent misrepresentation or any other liability the exclusion or limitation of which is expressly prohibited by law.
9.2 Subject to clause 9.1, the liability of the Licensor to the Licensee in respect of any and all claims (whether in contract or in tort) arising out of or in connection with the AutoMaths Website or the Licensed Material is (to the extent permitted by law) limited in respect of each event or series of connected events to the lesser of £1,000 or an amount equal to the Licence Fee payable by the Licensee in the twelve-month period immediately preceding the events giving rise to the claim.
9.3 Subject to clause 9.1, notwithstanding anything else contained in these Terms, in no event shall the Licensor be liable to the Licensee for any loss of profits, business, revenue, goodwill, anticipated saving or any other indirect, special, incidental or consequential loss or damage.
9.4 Subject to clause 9.1, the Licensor shall not be liable for any claim arising from:
(a) omissions or inaccuracies in the Licensed Material regardless of how caused;
(b) 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 or any user documentation provided by the Licensor from time to time, or any other misuse or abuse of the Licensed Product;
(c) the failure by the Licensee to implement recommendations or solutions previously advised by the Licensor in respect of faults in the Licensed Material;
(d) 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
(e) 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 Licensor provided that the period for which the Licensed Material is not available shall not exceed a period of 100 hours (in aggregate) in any continuous period of 1000 hours.
10 . DATA PROTECTION
10.1 Both parties shall comply with the provisions of any applicable data protection law, including (i) unless and until the General Data Protection Regulation (EU) 2016/679 (“GDPR”) is no longer directly applicable in the UK, the GDPR and the legislation in the United Kingdom designed to implement the GDPR and/or provide for the protection of personal data (as such legislation is amended or replaced from time to time) including the Data Protection Act 2018 (DPA 2018) and (ii) any successor legislation to the GDPR or the DPA 2018 (collectively, the “Data Protection Legislation”).“Personal data”, “Data Subject”, “Data Controller” and “Data Processor” shall have the same meaning as under the Data Protection Legislation.
10.2 Without prejudice to the generality of clause 10.1, the Licensee will ensure that it has all necessary appropriate consents and notices (including but not limited to consents from Authorised Users (and where required, written consents from parents or guardians) in place to enable the lawful transfer and processing of Personal Data to the Licensor for the duration of the Subscription Period for the purpose of Licensee’s access to the AutoMaths Website and Licensed Material.
10.3 Both parties shall obtain and maintain throughout the Subscription Period all necessary registrations and notifications that such party is obliged to obtain and maintain in accordance with the Data Protection Legislation in respect of providing or using the AutoMaths Website.
10.4 In providing the AutoMaths Website the Licensor may process Personal Data on the Licensee’s behalf. The Data Protection Schedule in Appendix A to these Terms sets out: a record of the subject matter, nature and purpose of such processing by the Licensor; the duration of the processing; the types of Personal Data; and categories of Data Subject which are the subject of this clause 10.4. The parties acknowledge that, save as otherwise provided in clause 10.7, for the purposes of the Data Protection Legislation, the Licensee is the ‘Data Controller’ and the Licensor is the ‘Data Processor’ (each as defined in the GDPR) in respect of such Personal Data.
10.5 When processing Personal Data as a data processor on behalf of the Licensee, Licensor shall in relation to any Personal Data processed in connection with the performance of its obligations under these Terms:
(a) process all such Personal Data only in accordance with the written instructions given by the Licensee from time to time unless the Licensor is required by any applicable laws to process the Personal Data;
(b) ensure that any of its employees, agents and sub-contractors who have access to such Personal Data are obliged to keep the Personal Data confidential;
(c) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(d) not transfer any such Personal Data to any country outside the European Economic Area without the prior written consent of the Licensee (such consent not to be unreasonably withheld) and unless the following conditions are fulfilled:
i) the Licensee or the Licensor has provided appropriate safeguards in relation to the transfer;
ii) the data subject has enforceable rights and effective legal remedies;
iii) the Licensor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv) the Licensor complies with reasonable instructions notified to it in advance by the Licensee with respect to the processing of the Personal Data;
(e) assist the Licensee, at the Licensee’s request, in responding to any request from a data subject in respect of their rights under Data Protection Legislation;
(f) not use any such Personal Data for any purpose that is not authorised under these Terms;
(g) assist the Licensee in ensuring and demonstrating compliance under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(h) notify the Licensee without undue delay on becoming aware of a Personal Data breach;
(j) at the written direction of the Licensee, delete or return Personal Data and copies thereof to the Licensee and shall procure that any sub-processor shall do the same, unless required by any applicable laws to store the Personal Data. Please contact us by email at: firstname.lastname@example.org if you require any Personal Data uploaded to the AutoMaths Website to be deleted; and
(k) maintain complete and accurate records and information to demonstrate its compliance with Data Protection Legislation.
10.6 The Licensor shall be entitled to appoint sub-processors to undertake processing of Personal Data on behalf of the Licensee provided that it enters into with such third-party processor(s) a written agreement incorporating terms relating to required compliance with Data Protection Legislation which are substantially similar to those set out in these Terms. As between the Licensee and the Licensor, the Licensor shall remain liable for all acts or omissions of any third-party sub-processor appointed by it.
10.7 The Licensor may process Personal Data obtained direct from Authorised Users as a Data Controller:
(a) where such processing is necessary for its legitimate business interests as a supplier of digital platforms where such legitimate interests do not endanger the rights and freedoms of Data Subjects as described in the Licensor’s Privacy Notice made available to the Authorised User at the time of collection of such Personal Data;
(b) where such processing is necessary for the performance of a contract with the Authorised User; or
(c) where the Authorised User has provided his/her consent to such processing.
11.1 In the event that any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be contrary to law, the remaining provisions of these Terms will remain in full force and effect.
11.2 No provision of these Terms or breach thereof may be waived except in a writing signed by the party against whom the waiver is sought to be enforced.
11.3 The Licensor may update these Terms from time to time at its discretion.
11.4 The failure of any party to enforce any provision of these Terms on any one occasion shall not affect its right to enforce another provision or the same provision on another occasion.
11.5 Nothing contained in these Terms shall constitute or shall be construed as constituting a partnership, joint venture, or contract of employment between the parties.
12. GOVERNING LAW
These Terms are governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.
Data Protection Schedule
Subject matter of processing by the Licensor:
Nature and purpose of processing:
To provide educational assessment and learning tools and services via the AutoMaths Website including support tools for learning, marking tests and assessments and recording assessment results and report generation.
To support use and access to on-line tool.
To provide customer service and support.
Data collection, storage and retrieval.
Duration of the processing:
For the duration of the Subscription Period. Personal data will then be held until Licensee requests that it should be deleted.
Types of personal data processed:
Teachers, staff members and administrative users at Licensee
Pupils, students of Licensee
Full name, title, contact details, email address, role, subject list, school, teaching group, user name/ID and password, status, last log in date and other information relating to use of the platform.
Information relating to pupil and his/her education and learning for the provision of the services including First, middle and last names, class, year, school, gender, password of pupils, status, last log-in date and test and assessment scores and data relating to the pupil’s use of learning materials in the Platform tool.
Special category data (where provided to Licensor)
Categories of Data Subject:
Teachers and administrative staff and authorised users of Licensee, pupils of Licensee school or educational establishment.
Last updated July 2019