Actis
END-USER TERMS AND CONDITIONS (JUNE 2004)
(EFFECTIVE FROM 1st June 2004)
In these terms and conditions the following words have the following meanings:
"Actis Product" means the Actis product(s) and/or services as specified in your order, or which these Conditions otherwise accompany, or which are otherwise supplied to you on these Conditions;
"Activation Date" means the date on which your subscription to any Online Subscription Product is activated such that you are able to access the Online Subscription Product, or in the case of any other Service, the date on which that Service commences;
"Agreement" means each quotation, offer, order, acceptance, and agreement which incorporates these Conditions;
"Conditions" means these Actis End-User Terms and Conditions (June 2004);
"Contents" means the images, text, software, services, functions and other materials and things that are provided as part of the Actis Product;
"End-User Licence" means the licence to use the Actis Product granted under Clause 7;
"Fee" the price, subscription fee or other fees payable for the Actis Product, as specified by Actis;
"Intellectual Property Rights" means all and any copyrights, rights in typefaces and typographical arrangements, performance rights, rental and lending rights, design rights, patents, database rights, rights in domain names, trade marks, rights in inventions, moral rights, and all other intellectual property or other rights which exist now or in the future in any part of the world, whether registered or not, and any applications to register or rights to apply for registration of any of such rights;
"Online Subscription Product" means any Actis Product that comprises the provision of and access to materials and services stored on and accessed through a web site on a subscription basis, including the Actis on-line national curriculum subject areas and Actis project box and event pack educational information services;
"Online Cached Product" means any Actis Product which comprises the supply of a complete copy of an Online Subscription Product, which is designed for caching on a web server operated by you or your nominated hosting company;
"Product Updates" means any and all updates, new versions and changes to the Actis Product published by Actis from time to time;
"Product Update Service" means any service comprising the supply by Actis of Product Updates from time to time;
"Reseller" means any person, firm or company other than Actis who has sold or supplied or sub-licenced the Actis Product to you, under a contract between you and the Reseller;
"Retail Price" means the retail price published from time to time by Actis for purchase of or subscription for any Actis Product from Actis;
"Service" means any service provided by Actis as part of the Agreement;
"Shrink-wrap Products" means any Actis Product supplied on CD Rom which are designed to be installed and run on a computer other than a web server;
"you, your" the person, firm or
company who is purchasing or has purchased any product or service of Actis
under an agreement which incorporates these Conditions, or who has otherwise
been supplied with or given access to any product or service of Actis which
these Conditions accompany;
"Website" any website through which access is gained to any Actis Product; and
"we, us, our, Actis"
Actis (registered in England and Wales with company number
03122933) whose registered office is at Tringham House, Wessex Fields,
Deansleigh Road, Bournemouth, Dorset BH7 7DT.
2.1 Circumstances when these terms apply: Your use of any products and services of Actis is on and subject to these Conditions and the End-User Licence. In particular, these Conditions apply in the following circumstances:-
2.1.1 Where you are granted access to any Actis Product on a trial basis.
2.1.2 Where you submit any order to Actis or any Reseller for any Actis products or services or otherwise enter into the Agreement with Actis or any Reseller for the supply of any Actis product or service which incorporates these Conditions.
2.1.3 Where you purchase any Shrink-wrap Product or Online Cached Product, in which case by choosing to unseal and/or install or use such products, you agree to accept and comply with these Conditions and in particular the End-User Licence.
2.2
Resellers: In certain circumstances
Actis resells its products and services through resellers. In such case, the following terms apply:-
2.2.1
Your
contract for the purchase of the Actis Product is with the Reseller, and Actis
acts as a sub-contractor to the Reseller.
2.2.2
The
End-User Licence is either accepted by you as a direct contract with Actis as a
condition of using the Actis Product, or is granted by Actis to the Reseller
and assigned to you by the Reseller, or is granted to the Reseller by Actis and
sub-licenced to you by the Reseller, whichever first applies.
2.2.3
Where
the End-User Licence is not a direct contract between you and Actis, you agree
for the benefit of Actis (which may be enforced through the Contracts (Rights
of Third Parties) Act 1999) to comply with all of the terms of the End-User
Licence, and that Actis shall have the benefit of and be entitled to enforce
all rights and remedies set out in these Conditions.
3.1
Exclusion of
your terms: All terms and conditions of yours which you seek to incorporate
into the Agreement are hereby excluded.
3.2
Variation:
Actis reserve the right to vary or amend these Conditions at any time. Actis
will announce the variation on its Website.
The variation will not affect any Actis Product already supplied, except
that for any Online Subscription Product it will apply with effect from renewal
of that Online Subscription Product. These Conditions can only be modified
as set out in these Conditions or by a variation in writing signed by a
director of Actis.
3.3
Entire
Agreement: These Conditions and any other documents which form part of the
Agreement contain all the terms on which the Actis Product will be supplied by
Actis, and they supersede any prior promises, representations, or undertakings given by Actis (except
fraudulent misrepresentations).
3.4
Consumers:
Where you are dealing as a consumer when entering into the Agreement, nothing
in these terms and conditions shall prejudice any statutory rights you may have
which cannot be limited or excluded by law, including any such statutory rights
under the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982,
the Unfair Terms in Consumer Contracts Regulations 1999, and the Consumer
Protection (Distance Selling) Regulations 2000.
3.5 Third Parties: Except as stated in Clause 2.2.3, nothing in these Conditions or the Agreement shall create any right enforceable by a person not a party to the Agreement and the Contracts (Rights of Third Parties) Act 1999 shall not apply to the provisions of the Agreement.
The
following provisions apply where you are dealing as a consumer:-
4.1
Cancellation (Goods): In the case of goods:
4.1.1
Cancellation
Period:
Subject to Clause 4.1.2, where you have purchased any Shrink-wrap Product,
Online Cached Product, or any other physical goods from Actis, you have the
right to cancel the Agreement by notice to Actis within 7 working days from the
day after the day on which you received the Actis Product.
4.1.2
Opening
seals:
However, if you open any Actis Product or break any seal on any Actis Product,
then your right to cancel will end.
4.1.3
Return
of Actis Product:
If you cancel, you must allow us to collect the Actis Product from you, and you must pay any notified cost we incur
in collecting the goods.
4.2
Cancellation (Services): In the case of services:
4.2.1
Cancellation
Period:
Where you have purchased an Online Subscription Product or any other ongoing
Service from Actis (such as a Product Update Service for an Online Cached
Product), then you shall have the right to cancel the Agreement by notice to
Actis within 7 working days from the day after the day on which you entered
into the Agreement with us.
4.2.2
Commencement
of Service: If the Activation Date for the Service in
question commences with your agreement, before the end of the cancellation
period, then you will lose your right to cancel.
4.3 Address for notices: If you are entitled to cancel your agreement with us as set out in Clauses 4.1. or 4.2, and you wish to exercise that right you must send us your notice by email to welcome@actis.co.uk or by first class post or facsimile to the address given. If you validly exercise a right to cancel we will refund the Fee paid within 30 days.
5.1
General: In relation to all Actis
Products:-
5.1.1
Specification: The Actis Product will have the specification, description and
contents published and determined by Actis from time to time.
5.1.2
End-User
Licence:
Each Actis Product comes with the End-User Licence specified in Clause 7, which
sets out the only rights which you will have in relation to the Actis Product.
5.1.3
Fees: Payment of the Fees is a condition of use
and continued use of the Actis Product (except for any parts that we make
freely available).
5.1.4
Trial Usage: If you are granted access to an
Actis Product on a trial basis, Actis may terminated such trial use at any time
immediately on notice to you, until you agree to purchase the Actis Product.
5.2
Shrink-wrap Products: Where the Actis Product is
a Shrink-wrap Product, the following additional terms will apply:
5.2.1 Form: The Shrink-wrap Products are delivered on CD Rom in a box bearing Actis brands, and containing written installation instructions. The term Shrink-wrap Product includes such physical media and packaging.
5.2.2 Delivery: We will use reasonable endeavours to deliver the Shrink-wrap Product to you at the agreed delivery address within 14 days of acceptance of your order.
5.3
Online Subscription
Products: Where the Actis Product is an Online
Subscription Product, the following additional terms will apply:-
5.3.1
Access
Rights: When
you are supplied with an Online Subscription Product you are given the right to
access and use that Online Subscription Product in accordance with the End-User
Licence, for the period of your subscription.
5.3.2
Commencement: Your rights to access the
Online Subscription Product will commence following acceptance of your order
and payment of any Fee. We will notify
you of the Activation Date for your access rights, and this date will be the
date from which each period of subscription will be measured.
5.3.3
Duration: You may access the Online
Subscription Product only for the period of time which is covered by the Fee
you have paid.
5.3.4
Automatic
Renewal: At the end of any period of subscription,
your subscription to the Online Subscription Product will automatically renew
and continue for a further year, unless you or we terminate the Online
Subscription Product at the end of the current subscription period by notice in
writing given at least 1 month before the end of the current subscription
period.
5.3.5
Renewal
Fee: Where the
Online Subscription Product is renewed, we may send to you our invoice for the Fee for the next
subscription period. The Fee payable
will be the Retail Price applicable at that time. Where the Fee is calculated on the total number of pupils, this
will be calculated on the likely number as at the date of renewal, which you
must inform us of on request.
5.3.6
User Names and Passwords: Your access to the
Online Subscription Products is by user name and password. You will be issued a single user name and
password, or a user name and password per institution or per member of staff at
that institution. The passwords must be
kept secret and personal to you and must not be disclosed to any third party in
any circumstances. You must take all reasonable precautions to prevent any
passwords being used by anyone other than the nominated user including: never
writing down the password in any way that someone else could easily understand, never informing
someone else the password and writing to us immediately if you know or suspect
that someone else knows a password, so we can issue a new password.
5.3.7
Password
Disclosure:
If you do disclose or share a user name or password with another person
or allow another person to use the Online Subscription Product on your behalf,
you agree to indemnify us for any losses or damages suffered or incurred by us
as a result of your actions. If we reasonably believe that a user name and
password are being used in any way which is not permitted by us we reserve the
right to cancel access rights immediately without notice, and to block access
to all users from that address.
5.3.8
Access Arrangements: It is your responsibility
to make the necessary arrangements to access the Actis Product via the
internet. We will be responsible for
ensuring that the Online Subscription Product is connected to and accessible on
the internet.
5.3.9
Changes: We reserve the right to alter without
notice the arrangements for access to the Online Subscription Product or to
change the Content, presentation and/or facilities of the Online Subscription
Product.
5.3.10 Updating: The Online Subscription
Product will include all Product Updates that we make available from time to
time.
5.3.11 Suspension: We shall be entitled to suspend and
take out of use any Website or Actis Product at any time and from time to time
without notice to you, for the purposes of
maintenance, repair and upgrade, dealing with any actual or suspected
security breach, virus, or attack or any misuse by any person, and taking any
other action that we reasonably consider necessary for the efficient operation
and maintenance of the Web Site or Actis Product. We may also suspect use of any Website or Actis Product where any
third party hosting company who is hosting the Actis Product for us suffers or
implements any downtime for similar reasons.
5.4 Online Cached Product:
5.4.1
Access: The Online Cached
Products are delivered on CD Rom for installation on a proxy web server owned
or operated you or your nominated hosting company, for access through a web
browser.
5.4.2
Product
Updating Service:
The Online Cached Product does not include Product Updates, unless a
separate Product Update Service is ordered, in which case the following terms
will apply:-
(a)
Supply of Product Updates: Actis will supply
Product Updates for the Online Cached Product as and when they are published by
Actis. You will be responsible for
installing all Product Updates.
(b)
Duration: The Product Updating
Service will only be provided for the period of time which is covered by the
Fee you have paid.
(c)
Automatic Renewal: At the end of any period, your subscription to the Product
Updating Service will automatically renew and continue for a further year,
unless you or we terminate the Product Updating Service at the end of the
current subscription period by notice in writing given at least 1 month before
the end of the current subscription period.
(d)
Renewal Fee: Where the Product Updating Service is renewed, we may send to you our
invoice for the Fee for the next subscription period. The Fee payable will be the Retail Price applicable at that time.
6.1
Amount: In consideration of the supply of the Actis Product you must pay
the Fee specified by us. If no Fee has
been specified or agreed, then the Fee for the Actis Product will be the Retail
Price from time to time.
6.2
VAT: If you are not a consumer, then all Fees are stated exclusive of
value added tax which shall be payable by you in addition at the rate
applicable form time to time. If you
are a consumer, then all Fees are stated inclusive of VAT.
6.3 Delivery Costs: Unless otherwise agreed by us in writing, all Fees are an ex-works price, and we shall be entitled to make an additional charge for delivery of any Actis Product, which are delivered on any physical media, including all costs of carriage, packaging and insurance in transit, and all taxes and duties referable to the Actis Product, and their import or export.
6.4 Due Date: Unless otherwise stated by Actis, all Fees are payable in advance prior to access being given to or delivery of any Actis Product, and we shall not be obliged to supply or give access to any Actis Product until we have received payment in full. In the case of any Fees which are payable in respect of any period (such as annual subscription Fees), then you shall pay those Fees in advance by no later than the start of each such period to which they relate, and we may invoice you for such Fees at any time prior to the period to which they relate.
6.5 Credit Terms: As a concession, in certain circumstances, we may in our discretion grant 30 days credit. We will inform you if this is the case. In such case we may invoice you when we have given you access to or despatched the Actis Product, or in the case of renewal of any Actis Product, on the date of renewal, and you must pay such invoice within 30 days of the date of the invoice. We shall have the right to withdraw such credit terms at any time on notice to you.
6.6 Payment of the essence: Payment of all Fees, in full by the due date, is a condition of and of the essence of the Agreement.
6.7 Payment Method: The Fee is payable at our option by either credit or debit card, or at our discretion by cheque or bank transfer.
6.8 Interest: If any Fees become overdue, you shall pay interest in such Fees, such interest to accrue from day to day at the per annum rate 4% above the base rate of National Westminster Bank plc from time to time from the due date until the date on which the amount due is received (before and as well as after judgement order or award as the case may be).
6.9 Currency: All Fees shall be paid in the currency in which they were stated or quoted to you, and you shall take the risk of any exchange rate fluctuations if you use funds in a different currency to pay the Fees.
6.10 No-Set Off: You shall pay all Fees in full without any set-off, counterclaim, deduction or withholding.
6.11 Recovery Costs: You shall pay all costs and expenses (including legal costs) incurred by us in enforcing payment of any Fees.
7.1
Intellectual
Property Acknowledgement: You acknowledge
that all Intellectual Property Rights in and to any Websites, all Actis
Product, and all Contents are and shall remain the sole and absolute property
of Actis and of any third party that owns any such Intellectual Property
Rights, and you agree that no right, licence or permission is granted to you or
right, title or interest transferred to you in respect of any such Intellectual
Property Rights, except for any licences expressly granted in these Conditions.
You may not do anything with any Website, Actis Product or Content except as
authorised in these Conditions. All licences implied by law are hereby excluded
and all other rights are expressly reserved.
7.2
Application: In relation to each Actis
Product, you are granted a licence with the rights set out below, depending on
the Actis Product you are using.
7.3
Purpose of use:
Where you are a school or other institution, you may only use the Actis Product
for the purposes of teaching pupils at that school or other institution. Where you are an individual, you may only use the Actis
Product for your own individual learning purposes. You may not otherwise use the Actis Product for any other
purposes or share the Actis Product with any other person except as authorised
by us in writing.
7.4
Scope of rights: Your rights in relation to
any Actis Product are to download, run and view the Contents of the Actis
Product and use its functionality and services, and to print a reasonable
number of hard copies of any Contents of the Actis Product or anything produced
using the Actis Product, for use within by you or within your school or
institution in accordance with the permitted purposes of use. In the case of
any gallery or clip art, you may cut and paste these into any materials
produced by you or your pupils, as part of any course work which you produce
for use with pupils or students, or as part of any work which you produce for
your own learning purposes.
7.5
Shrink-wrap Product: In relation to any item
that is a Shrink-wrap Product, the licence includes the following rights:
7.5.1 User licences: Unless otherwise stated, the licence is a single user licence. Where the licence is a single or multiple user licence, each user licence entitles you either to: install and run a single copy of the Shrink-wrap Product on a single computer; or view a single copy of the Shrink-wrap Product through a web browser; or install the Shrink-wrap Product on a network, so that it may be accessed by computers connected to the network, for use by only one computer at any given time.
7.5.2
School Licences: Where the licence is stated to
be a licence given to a school or other institution, then you are licenced
to make unlimited installations of the
Shrink-wrap Product on any computers at the school or other institution, or to
install the Shrink-wrap Product on your own network servers for simultaneous
access by all computers at the school or other institution.
7.5.3
Back-up: One copy of the
Shrink-wrap Product may be made for security backup purposes.
7.5.4
Duration: Unless otherwise
specified, the rights granted in relation to any Shrink-wrap Product are
perpetual, but subject to any specified rights set out in these Conditions to
terminate the End-User Licence, and any rights and remedies at law.
7.6
Online Subscription Product: In relation to any item
that is an Online Subscription Product, the licence includes the following rights:
7.6.1
Access
Rights:
Where you are an individual, only you may access the Online Subscription
Product. Where you are a school or
other institution, the Online Subscription Products may be accessed
through unlimited computers at the school or through personal computers of the
staff of the school, but only for use by employed staff of the school, and
pupils and others under their supervision whilst at the school or other
institution.
7.6.2
Caching: We do not permit any part of the Online
Subscription Product to be cached in proxy servers, unless it is an Online
Cached Product. This does not affect
any temporary caching as part of a standard web proxy server for download
efficiency purposes.
7.6.3
Duration: The rights granted in
relation to an Online Subscription Product shall continue only for the period
of the subscription. On termination of
an Online Subscription Product, the End-User Licence shall terminate, and you
shall cease to access, copy or otherwise use any Content of the Online
Subscription Product, including any copies Content which you may have
downloaded or otherwise hold.
7.7
Online Cached
Product: In
relation to any item that is an Online Cached Product, the licence includes the
following rights:
7.7.1
Installation
Rights:
Where you are a school or other institution, the Online Cached Product
may be installed by you on your proxy web servers or hosted by a third party on
your behalf, and may be accessed through unlimited computers at the school or
through personal computers of the staff of the school, but only for use by
employed staff of the school, and pupils and others under their supervision
whilst at the school or other institution;
7.7.2
Back-up: One copy of the
Online Cached Product may be made for security backup purposes.
7.7.3 Duration: Unless otherwise specified, the rights granted in relation to any Online Cached Product are perpetual, but subject to any specified rights set out in these Conditions to terminate the End-User Licence, and any rights and remedies at law.
7.8 General Conditions: All End-User Licences granted in relation to any Actis Product are subject to the following conditions:
7.8.1
Non-Exclusive: All licences and rights granted
are non-exclusive.
7.8.2
Limitations: Each End-User Licence shall
be subject to the limitations as to users and other qualifications agreed with
you or otherwise specified by us.
7.8.3
No
Editing:
The Content of any Actis Product may only copied and printed as a whole, and
except for any gallery images no rights are given to edit or modify any Content
or merge or insert any Content or any part of it in any other documents or
materials.
7.8.4
Prohibited Reproduction: You may not resell,
reproduce, copy or redistribute the design or layout of any Actis Product or
Actis logos without the express written permission of Actis.
7.8.5
Designs: You have no right to
physically replicate all or any part of any object, pattern or other item which
is depicted in any Content, including reproducing any design recorded in any
Content.
7.8.6
Copyright notices: All copies of any part of the
Actis Product or any Content must bear an acknowledgement as to the owner of
the Intellectual Property Rights in such materials, and you must not remove
any copyright, trademark and other
proprietary notices included in any Actis Product.
7.8.7 Sub-Licensing: You shall not be entitled to sub-licence any of the rights granted under the End-User Licence, except for the purposes of hosting any Actis Product on any web server on your behalf. You shall not be entitled to assign or transfer the benefit of any rights granted under the End-User Licence.
7.8.8 Software: You must not modify, edit, adapt, reverse engineer, decompile, disassemble, create derivative works based on or copy any software, save solely for the purposes expressly permitted by and in accordance with sections 50A and 50B of the Copyright Designs and Patents Act 1988.
7.8.9 Security: You must use reasonable endeavours to prevent any unauthorised access or copying.
7.8.10 Moral Rights: We and all other owners of Intellectual Property Rights in the Actis Product or any of its Content or anything depicted in the Content, retain all moral rights in relation to the Actis Product and the Contents, including any right to hold itself out as creator or author, and you shall not do anything or permit anything to be done which conflicts with such rights.
7.8.11 Licence Extensions: The Fees are calculated and set depending on the scope of rights granted by an End-User Licence. If you wish to extend or alter any rights granted by an End-User Licence, you must seek our prior written consent, by a further order to us, and pay such additional Fees as we may require.
7.8.12 Auditing: We may on reasonable notice to audit you and your systems, and those of any hosting company, including by physical inspection, from time to time, to verify who you have permitted to access Actis Product, and that you are complying with the End-User Licence and any other terms of the Agreement. You must provide all reasonable assistance and co-operation to enable this audit to take place.
8.1 Scope of warranty: Subject to Clause 8.2, if:-
8.1.1 an Actis Product is not of satisfactory quality or has not been provided with reasonable care and skill, or does not conform to or function in accordance with its published specification or description or any requirements of the Agreement; or
8.1.2 any CD Rom on which any Actis Product is supplied is defective; or
8.1.3 use of the Actis Product in accordance with an End-User Licence infringes any Intellectual Property Rights of a third party;
then our sole liability and your sole remedies shall be (at our sole option):-
(a) rectification of any such problem or non-conformity within a reasonable time (and if we fail to do so, then you will be entitled to the remedy in sub-Clause(b) below);
(b) return and/or termination of the Actis Product and refund of a reasonable proportion of any Fees paid;
(c) and in the case of Clause 8.1.3, compensating you for any liability you may have to any third party arising out of such infringement (up to date you became aware of the infringement) of Intellectual Property Rights of that third party for damages (other than punitive damages) up to a maximum amount of the Fees paid in respect of the Actis Product up to the date of any claim of infringement.
You
must provide full details to Actis of any claims under this Clause 8.1 and give
Actis a reasonable opportunity to investigate and correct any problems or
faults with the Actis Product. However,
Actis cannot guarantee that any errors in the software contained within the
Actis Product can be corrected, but will use reasonable efforts to do so.
8.2 Warranty Limits
8.2.1 Suitability: You agree that you have selected the Actis Product yourself, and you shall be responsible for determining that the Actis Product are fit for any specific expectations or purposes you may have, even if we have knowledge of these.
8.2.2
Software Bugs: We do not agree that any software
provided will be free from minor bugs and errors, or that any service will be
free from minor interruptions or delays.
8.2.3
Not advice: The Contents of any Actis Product
are only for general information or use. They do not constitute advice and
should not be relied upon in making (or refraining from making) any decision.
8.2.4 Accuracy: Errors and omissions do occur and you should not rely on the accuracy of any Content.
8.2.5
Improper Use: If you use any of the Actis
Product in a manner not permitted by the End-User Licence, then we shall have
no further liability to you in respect of such Actis Product.
8.2.6 Download risk: Any material downloaded or otherwise obtained by you through the use of the Actis Product or loaded through a computer is done at your own discretion and risk and on the basis that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
9.1 Links to other sites: We may provide access via hypertext links to resources on other websites but in so doing we are not endorsing any linked entities nor authorising any act which may be in breach of any Intellectual Property Rights. We do not accept any responsibility or liability for any of the materials contained on any third party websites, or for any goods or services supplied by those third parties.
9.2 Cookies: Cookies and form persistence data are data files that web sites can write to your hard drive when you visit them. They may contain information to enable the web site to track your usage of the web site or any transactions taking place through the web site. We may use cookies and persistence data to track and manage your usage of any Website and any transactions carried out through any Website. You agree to such cookies and persistence data being stored on your computers and used for such purposes.
9.3
Material
Submitted by Users: Certain elements of the Actis Product
may contain material submitted by other users. We do not accept any responsibility
for the content or accuracy of such material. Where the material is based on or
contains extracts owned by third parties, we do not make any representation or
warranty that the material is provided or may be used in any way without
infringing the Intellectual Property Rights of any third party.
9.4 Prohibited Reproduction: You may not reproduce, copy or redistribute the design or layout of the Website or any Actis Product, or individual elements of the Website design or Actis logos without the express written permission of Actis.
10.1 Timescales: Actis agrees to use reasonable efforts to perform its obligations under this Agreement by any date or within any time stated in this Agreement, or if no date or time is stated, by such reasonable date or time as Actis shall specify. Time for performance is not of the essence, and any specified dates or times for performance of this Agreement are estimates only.
10.2 Training: Actis will provide on request training for the Actis Product at its rates specified from time to time.
10.3 Sub-contracting: Actis may sub-contract or appoint an agent for any or all of its rights and obligations under this Agreement.
10.4 Improper Content: Actis will ensure that the Actis Product do not contain any materials which are:-
10.4.1 defamatory, libellous, obscene, in contempt of court or in contravention of any law; and/or
10.4.2 promotes violence or discrimination based on race, sex, religion, national origin, physical disability, mental disability, age or which promotes any illegal activities; and/or
10.4.3 are viruses, worms, trojan horses, or any other contaminants that may be used to access and/or modify, delete or damage any data files or other computer programs.
10.5 Legal Disclosure: ACTIS may disclose any passwords and encryption keys, and any information it may have gathered or which it is storing for or concerning you or any user in the provision of the Actis Product, to comply with all applicable laws and lawful governmental requests, which may be without notice.
11.1 Skilled Use: All Actis Product must be used by you with reasonable care and skill.
11.2 Viruses: You must take all appropriate preventative measures and ensure all appropriate safeguards are in place to guard against viruses and other malicious software before downloading, installing, viewing or running any images, software or other materials provided by us.
11.3 Personal Information: We will request certain personal information from you (or if you are an institution, from your employees) in order to provide the Actis Product to you. You are responsible for the accuracy and truthfulness of such information and you warrant and undertake to us that all such information is true and correct. We will use your personal information only for the purposes of providing the Actis Product to you. We will treat your personal information as confidential and we will not disclose it to any third party except with your prior agreement or as required by law. We are registered under the Data Protection Act 1998 and your data will be processed subject to that Act. We reserve the right to request supporting documentation to verify personal information in our absolute discretion. You must notify us immediately of any change in your personal details.
11.4
Uploads:
Where you upload or otherwise post or send any materials or information to any
Website or Online Subscription Product,
the following terms shall apply:-
11.4.1 Intellectual
Property: You agree that you will not upload files that contain software or
other materials protected by Intellectual Property Rights unless you own or
control all of the rights thereto or have received all necessary consents.
11.4.2 Confidentiality:
Any such materials or information transmitted will be treated as
non-confidential and non-proprietary and may be disseminated, stored or used by
us for any purpose whatsoever including but not limited to developing,
manufacturing and marketing products and services. This includes the right to
exploit any Intellectual Property Rights in such information. This applies to
all material and information that has already been provided in addition to that
transmitted or posted in the future.
11.4.3 Improper
content: You are not permitted to post or transmit to or from any Website
or Actis Product any unlawful, threatening, defamatory, obscene, scandalous,
inflammatory, pornographic or profane material or any other material which
could give rise to any civil or criminal liability on the part of Actis. You
must not upload files that contain viruses, corrupted files or any other
programs that may damage the operation of our or any third party's computer or
conduct or forward surveys, contests, pyramid schemes or chain letters or
falsify any author attributions or other proprietary designations or do
anything that might restrict or prohibit other users from using the Service.
11.4.4 Communities: You agree that you will not use any talk areas and communication facilities to stalk, harass, threaten or otherwise violate the legal rights of others. Always use caution when giving information about the identity of yourself, pupils and the educational establishment where you work.
11.4.5 Moderation by Actis: We reserve the right at all times to disclose any information as necessary to satisfy any applicable law or legal process or government request or to edit, refuse to post or to remove any information or materials at our discretion
11.5 No Assignment: Except as expressly stated in these Conditions, you may not assign, transfer, sub-contract, sub-license, delegate, charge, declare a trust over or otherwise deal with the benefit and/or burden of the Agreement, or any rights licences granted under the Agreement, or your rights or obligations under the Agreement without our prior written consent.
The following provisions govern our liability ("Default Liability") to you (whether in contract, tort, statute or otherwise however) for (1) breach of the Agreement by us, (2) negligence or breach of statutory or common law by us in connection with the Agreement, or (3) misrepresentation (other than fraudulent) in relation to this Agreement ("Default Liability"):-
12.1 Non-Excluded Loss: We do not exclude our Default Liability to you for personal injury or death due to our negligence, or for fraud or fraudulent misrepresentation, or any liability to refund any amounts paid under this agreement due to a failure of consideration.
12.2 Cost of substitute products: If you lawfully terminate the Agreement owing to a Default Event of Actis, Actis does not in such case exclude its Default Liability to you for any reasonable additional fees payable by you for replacements for the Actis Product under the Agreement, in excess of the Fees payable for the Actis Product under the Agreement, provided that:-
(a) you shall have given Actis a reasonable opportunity to correct any defects in the Actis Product;
(b) such Default Liability shall be limited to a maximum of 10% of the Fees otherwise payable under the Agreement (assuming no future variations) up to the earliest date on which the End-User Order could have been terminated by either party without cause.
12.3 Excluded Loss: Except for any of the losses referred to in Clauses 12.1 to 12.2 above, we exclude and shall not have any Default Liability to the other for any of the following types of loss: (1) any special, indirect or consequential loss; (2) any loss of profit, use, expectation, anticipated savings, data, production, anticipated or current business, revenue, contract or goodwill, (3) any losses, costs, expenses, liability, commitment, contract or expenditure suffered or incurred in reliance on the performance of this Agreement in accordance with its terms, (4) loss of or corruption of data, or (5) losses suffered by third parties or any liability to any third party.
12.4
User Acts: We shall
have no Default Liability for any acts or omissions of any other users of any
Actis Product.
12.5 General Limitation: In any event the total our total Default Liability to you for all Default Events, shall be limited as follows:-
12.5.1 in the case of any Shrink-wrap Product, Online Cached Product, or any other product for which a one-off fee is payable, to the Fee payable (excluding VAT, delivery costs and taxes); and
12.5.2 in the case of any Online Subscription Product, Product Update Service or other ongoing subscription or service, to an amount equal to the first year's annual Fee.
13.1 Meaning: In these Conditions, "Force Majeure Event" means any event or circumstance beyond our reasonable control, including Act of God, legislation, war, civil commotion, fire, flood, drought, failure of power supply, failure of machinery, lock out, strike, stoppage or other action by our employees or third parties, or owing to any inability to procure any necessary supplies of goods, services or materials, or any failure any third party system or service, including any postal or delivery service or the internet.
13.2 Effects: We shall not be in breach of this Agreement and shall be entitled to suspend or delay performance of this Agreement, if we are delayed in performing or is unable to perform this Agreement due to a Force Majeure Event.
13.3 Resources: If as a result of a Force Majeure Event, we shall not have sufficient resources or capacity to provide the Actis Product under all contracts which we have entered into (including this Agreement and any contracts with third parties), either at all or on time, we shall be entitled to allocate our resources and capacity to such contracts as we shall in our sole discretion determine, and to decide in our sole discretion which of our contracts to perform and to what extent.
14.1 Termination without cause:
14.1.1 Termination by you: You can terminate the Agreement at any time by giving us notice in writing. Without prejudice to our liability for breach of the Agreement, you will not be entitled to any refund of or be released from your obligation to pay any Fees already paid or which have become due and payable by you.
14.1.2 Termination by Us: We reserve the right to terminate the Agreement (including the End-User Licence) at any time and for any reason on giving notice to you. If we terminate under this clause we will refund a reasonable proportion of the Fee you have paid (if any).
14.2
Breach: We may terminate this Agreement and/or the End-User Licence if you
(1) commit an irremediable material breach of the Agreement or the End-User Licence,
or (2) you commit any breach of the Agreement and/or the End-User Licence (however minor, and whether or
not remediable) and you commit a similar breach again after notice from us, or
(3) you commit any remediable breach of the Agreement and/or the End-User Licence
and do not remedy that breach in a reasonable period after notice from us.
14.3 Insolvency: We can terminate the Agreement and the End-User Licence at any time on giving notice to you if you become bankrupt or enter into a voluntary arrangement with your creditors, become subject to an administration order, have a petition presented or an order made for you winding-up, have a receiver appointed over all or any part of your undertaking or assets, go into liquidation, cease or threaten to cease to trade or suffer any analogous event of insolvency.
14.4 Non-Payment: We can terminate the Agreement and the End-User Licence any Fees payable by you under the Agreement or in respect of the End-User Licence shall become overdue, and are not paid in full within 30 days of notice of such Fees.
14.5
Suspension:
If we become entitled to terminate the Agreement under Clauses 14.2
to 14.4, we shall be entitled to elect, instead of exercising a right of
termination, to suspend the Agreement and the End-User Licence, for such period
as we may reasonably specify. If at the
end of that period, the circumstances entitling us to terminate still exist
still exist, then we shall be entitled to either proceed to termination or
extend the period of suspension by further notice to you.
14.6 Effects of termination: If the Agreement is terminated then all End-User Licences granted to you shall immediately end.
15.1 Implied Terms: Except as expressly stated in writing in the Agreement, and except for any implied terms as to title or right to grant licences in relation to any Actis Product, all warranties, conditions, or terms implied by statute, common law, custom, trade or otherwise with respect to the standard, condition, quality, performance, operation, fitness or suitability of any Actis Product are hereby excluded to the fullest extent permitted by law.
15.2
Notices: Notices
shall be in writing and shall be sent to the intended recipient's address
stated in the Agreement, or to the intended recipients current or last known
address or place of business. Notices
shall be deemed to be received: if sent by hand, or recorded delivery, on
delivery; if sent by first class post, on the 2nd day following the
day of posting; if sent by facsimile, on completion of uninterrupted
transmission; and if sent by e-mail on delivery to the mail server of the
intended recipient. Service of legal
proceedings and notices as to termination, breach or claims shall not be made
or sent by e-mail.
15.3
Sub-Contracting: We may sub-contract and/or appoint an agent
to perform or exercise any of our rights and obligations.
15.4
Interpretation:
In these Conditions and the Agreement, a reference to any gender shall include every gender and a reference to the singular
shall include the plural and vice versa; a reference to any materials includes any property, information,
data or materials of any kind in
whatever form including images, software, databases, text, fonts, and sound; a reference to a person includes a reference to a
company or other body corporate, association, partnership, individual or any
other recognised legal entity or person under the laws of any country; a reference to any software includes any computer
programs, instructions or algorithms, firmware, source code, object code,
scripts, applets, mark-up languages, layout, formatting, databases,
spreadsheets, flash or shockwave files, and includes any materials comprised in
any software; and a reference to a consumer
is to any natural person who is acting for purposes which are outside his
business.
15.5 Headings: Headings used in these Conditions and in the Agreement do not form part of these Conditions or the Agreement, and shall be disregarded in construing or interpreting these Conditions or the Agreement.
15.6 Law and Jurisdiction: The Agreement and these Conditions are subject to English law and you and we submit to the exclusive jurisdiction of the English courts.