ESOL Stepping Stones

PLEASE READ THESE LICENCE TERMS CAREFULLY
BY DOWNLOADING THE LICENSED IP (AS DEFINED BELOW) YOU AGREE TO THESE TERMS.
BY CHECKING THE BOX MARKED "I HAVE READ AND UNDERSTOOD THE LICENCE TERMS AND CONDITIONS AND THE “STANDARD TERMS OF USE", YOU OFFER ON BEHALF OF THE REQUESTING ORGANISATION TO TAKE A LICENCE TO THE RELEVANT PRODUCT ON THE TERMS OF THIS LICENCE AGREEMENT AND THE LIMITED WARRANTY AND LIMITATION OF LIABILITY SET OUT IN IT UNLESS OTHERWISE STATED IN THE LICENCE TERMS, THESE LICENCE TERMS WILL BECOME LEGALLY BINDING. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OR THE STANDARD TERMS OF USE, YOU SHOULD NOT CHECK ANY OF THIS BOX.  BACKGROUND (A) You are seeking permission to use the Licensed IP subject to the terms of the Licence. The Licence is granted solely for non-commercial research and/or for non-commercial educational use. (B) The University only grants this type of licence for non-commercial research and/or non-commercial educational use to not-for-profit organisations, not-for-profit research organisations not-for-profit educational establishments. For the avoidance of doubt the Licence is not granted to educational establishments or consumers that wish to use the Licensed IP for commercial purposes. (C) You may not enter into this agreement outside your trade, business or profession. If you are a consumer and wish to use the Licensed IP for any purpose then please contact the University directly. (D) A description of the Licensed IP is set out on the Website. (E) By accepting the terms of the Licence, you accept that the use of the Licensed IP is subject to the Licence. You confirm that, if you are using the Licensed IP on behalf of your employer, another person or organisation, you are legally authorised to bind them to the terms of the Licence. Agreed terms 1. Interpretation 1.1 This Licence is a legal agreement between the recipient organisation requesting the licence (Licensee) and The University of Manchester (a Royal Charter corporation registered in the United Kingdom under number RC 000797, an exempt charity) of Oxford Road, Manchester, M13 9PL for use of the Licensed IP (as defined below). 1.2 The definitions and rules of interpretation in this clause apply in this licence. Acceptance Date: the date on which the Licensee is deemed to have accepted the Licensed IP when it was downloaded from the Website. Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party. Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. Computer: personal computer (including tablet personal computer), laptop computer or similar hardware provided that where such hardware is networked it will mean one terminal only. Control: a business entity shall be deemed to "control" another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity, or any other comparable equity or ownership interest with respect to a business entity other than a corporation. Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world. Licensed IP: means the intellectual property that will be downloaded from the Website . Website: means [WEBSITE] 1.3 Holding company and subsidiary mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act. 1.4 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement. 1.5 Unless the context otherwise requires: (a) words in the singular shall include the plural and in the plural shall include the singular; (b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to; (c) a reference to one gender shall include a reference to the other genders; and (d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 1.6 In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedules or appendices, the provision in the body of this licence shall take precedence. 1.7 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns. 1.8 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule. The Schedules form part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedules. 2. Licence 2.1 From the Acceptance Date, in consideration for the mutual promises set out in this agreement, the University grants to the Licensee a non-exclusive non-transferable, perpetual, worldwide right and licence for non-commercial research and/or for non-commercial educational use. For the avoidance of doubt the Licence is not granted for commercial purposes and the Licence is personal to the Licensee and the Licensee may not transfer the right to use the Licensed IP to any other person or company. 2.2 The Licensee may not use any such information provided by the University to create any software whose expression is substantially similar to that of the Licensed IP nor use such information in any manner which would be restricted by any copyright subsisting in it. 2.3 The Licensee may: (a) Install and use the Licensed IP on one Computer only; and (b) make copies of the Licensed IP only for back-up and archival purposes only. 2.4 The Licensee shall not: (a) license, assign or novate the benefit or burden of this licence in whole or in part; (b) allow the Licensed IP to become the subject of any charge, lien or encumbrance; (c) rent, sell, redistribute, transfer, sublicense, give away or otherwise make available the Licensed IP in whole or in part to any person; (d) deal in any other manner with any or all of its rights and obligations under this agreement; (e) use the Licensed IP in any way or for any purpose that would violate, or would have the effect of violating, any applicable local, state and federal laws, rules or regulations or any rights of any third-parties; (f) use any part of a trademark, trade name, business name, service mark, or logo of the University without their written permission; (g) use the Licensed IP in anyway which would be reasonably likely to bring the University or the Licensed IP into disrepute; (h) hold themselves out as the owner or creator of the Licensed IP; (i) remove or modify any copyright or other notice contained or included on or with the Licensed IP; (j) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Licensed IP’s source code or object code or other runtime objects or files distributed with the Licensed IP; and (k) otherwise reverse engineer, modify or copy any portion of the Licensed IP. 2.5 The Licensee is solely responsible for obtaining any supporting software necessary to utilize the Licensed IP and the Licensee shall be solely responsible to determine the abilities and capabilities of such, including, but not limited to, the compatibility of such supporting software with the Licensed IP. The University shall have no obligation to provide supporting software necessary to operate the Licensed IP. 2.6 The University may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence. 2.7 Each party confirms it is acting on its own behalf and not for the benefit of any other person. 2.8 Notwithstanding clause 3, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 2.8 shall be made until notice of the identity of the proposed assignee has been given to the other party. 2.9 The Licensee acknowledges that: (a) the Licensed IP has not been developed to meet your individual requirements or that use of the Software will be uninterrupted or error free; (b) it is your responsibility to ensure that the facilities and functions of the Licensed IP meet the Licensee’s requirements; (c) the University is not able to check for bugs or errors and, therefore, the Licensed IP may not be free of bugs or errors; (d) the University cannot confirm that the Licensed IP is virus free and gives no warranty to that effect; (e) the Licensee is responsible for the results or output that it obtains from your use or misuse of the Licensed IP; (f) it is not the responsibility of the University to ensure that the Licensee is able to use the Licensed IP (for example because you do not have the necessary hardware to run the Licensed IP) or that the Licensed IP meets the Licensee’s requirements, and so if it does not then, the University shall have no liability to the Licensee; and (g) the Licensee has no right to use the Licensed IP in source code form or in unlocked coding or with comments. 3. Confidentiality and publicity 3.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information. 3.2 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. 4. Warranties and liability 4.1 Each of the parties acknowledges that, in entering into this Agreement, it has not relied on any warranty, representation or undertaking except those expressly set out in this Agreement and each party waives any claim for breach of any representation (unless made fraudulently) which is not specifically contained in this Agreement as a warranty. 4.2 The University does not give any warranty, representation or undertaking: (a) as to the efficacy or usefulness of any of the Licensed IP; or (b) that any of the Licensed IP is or will be valid or subsisting or (in the case of an application) will proceed to grant; or (c) that the use of any of the Licensed IP in, the manufacture, sale, supply, use or performance of any or the Licensed IP or the exercise of any of the rights granted under this agreement will not infringe any intellectual property or other rights of any other person; or (d) that the know-how or any other information communicated by the University to the Licensee under or in connection with this agreement will produce Licensed IP of satisfactory quality or fit for the purpose for which the Licensee intended; or (e) imposing any obligation on the University to bring or prosecute actions or proceedings against third persons for infringement or to defend any action or proceedings for revocation of any of the registered intellectual property comprised within the Licensed IP. 4.3 The Licensee warrants to the other that: (a) has the right and permission to enter into this agreement on behalf of the Licensee; (b) it shall comply with any applicable laws in its performance under this Agreement; and (c) its rights and obligations under this agreement do not conflict with any contractual obligation or court or administrative order by which it is bound and it shall not knowingly enter into any such conflicting obligation during the Term. 4.4 The Licensee will indemnify the University and its Affiliates, its officers, directors and employees and keep them fully and effectively indemnified, against each and every claim made against the University, its as a result of the: (a) Licensee’s use or other dealings in any of the Licensed IP or breach of this agreement. (b) the use by any third party (whether or not authorised by you) of the copy of the Licensed IP provided to you by us or of any copy of such Licensed IP that you make; (c) a breach of this Agreement by you; and (d) any negligent or wrongful act by you connected in any way with the Licensed IP. 4.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care. 4.6 Except as expressly stated in clause 4.7: (a) the University shall not in any circumstances have any liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (i) special damage even if the University was aware of the circumstances in which such special damage could arise; (ii) loss of profits; (iii) loss of anticipated savings; (iv) loss of business opportunity; (v) loss of goodwill; (vi) loss or corruption of data, (b) the total liability of the University, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall be limited to the maximum extent permissible by law; and (c) the Licensee agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the University shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence. 4.7 The exclusions in clause 4.2 and clause 4.6 shall apply to the fullest extent permissible at law, but the University does not exclude liability for: (a) death or personal injury caused by the negligence of the University, its officers, employees, contractors or agents; (b) fraud or fraudulent misrepresentation; (c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (d) any other liability which may not be excluded by law. 4.8 All references to "the University" in this clause 4 shall, for the purposes of this clause and clause 13 only, be treated as including all employees, subcontractors and suppliers of the University and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 13. 5. Intellectual property rights 5.1 The Licensee acknowledges that all Intellectual Property Rights in the Licensed IP belong and shall belong to the University or the relevant third-party owners (as the case may be), and the Licensee shall have no rights in or to the Licensed IP other than the right to use it in accordance with the terms of this licence. 5.2 If any third party makes a claim, or notifies an intention to make a claim against the Licensee, then the Licensee shall: (a) as soon as reasonably practicable, giving written notice of the claim to the University, specifying the nature of the Claim in reasonable detail; (b) not making any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the University (such consent not to be unreasonably conditioned, withheld or delayed); (c) giving the University and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Licensee, so as to enable the University and its professional advisers to examine them and to take copies (at the University's expense) for the purpose of assessing the claim; and (d) take such action as the University may reasonably request to avoid, dispute, compromise or defend the claim. The University shall have the right, but not the obligation to defend and control the defence of any such claim and to choose counsel for such purpose, provided that the Licensee may participate at its own cost and expense. 5.3 If any claim is made, or in the University's reasonable opinion is likely to be made, against the Licensee, the University may at its sole option and expense: (a) procure for the Licensee the right to continue to use the Licensed IP (or any part thereof) in accordance with the terms of this licence; (b) modify the Licensed IP so that it ceases to be infringing; (c) replace the Licensed IP with non-infringing software; or (d) terminate this licence immediately by notice in writing to the Licensee. 5.4 If the Licensee becomes aware of any infringement or any misuse of any of the Licensed IP, it will promptly notify the other party and provide all details within its knowledge provided that the University may at all times take such action as it sees fit in respect of such infringement or misuse. The Licensee will also provide the University with all assistance required by the University for the purposes of any infringement or misuse action which the University may bring. 5.5 The University will be under no obligation to take any action regarding any infringements or misuse of any of the Licensed IP, whether through the institution of legal proceedings or otherwise, but should the University in its absolute discretion decide to take any such action, it will do so at its own cost and the Licensee will have no claim to any sums recovered by the University. The Licensee will have no right to take any action itself in relation to any infringements or misuse of any of the Licensed IP without the prior written consent of the University. 6. Termination 6.1 Without affecting any other right or remedy available to it, either party may terminate this agreement for any reason on written notice of their intention to terminate the Agreement to the other party. Either party may terminate this agreement immediately if the other party commits a material breach of the agreement. 6.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect. 6.3 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry. 6.4 On termination for any reason: (a) all rights granted to the Licensee under this licence shall cease; (b) the Licensee shall cease all activities authorised by this licence; (c) the Licensee shall immediately pay to the University any sums due to the University under this licence; and (d) the Licensee shall immediately destroy or return to the University (at the University's option and the Licensee’s expense) all copies of the Licensed IP then in its possession, custody or control and, in the case of destruction, certify to the University that it has done so. 6.5 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement including clause 1, clause 3, clause 6, and shall remain in full force and effect. 7. Waiver No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 8. Remedies Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law. 9. Entire agreement 9.1 This licence, the schedules and the documents annexed as appendices to this licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. 9.2 Each party acknowledges that, in entering into this licence, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in this licence or those documents. 9.3 Nothing in this clause shall limit or exclude any liability for fraud. 10. Variation No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 11. Severance 11.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. 11.2 If any provision or part-provision of this agreement is deemed deleted under clause 11.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. 12. Export Controls 12.1 You shall comply with all relevant import and export laws and regulations affecting the Licensed IP applied by the United Kingdom. You shall not use the Software without first obtaining all written consents or authorisations which may be required by any such import and export laws and/or regulations. 13. Third-party rights 13.1 The University and the entities referred to in clause 4.8 may enforce the terms of this licence subject to and in accordance with this clause 13, this licence and the Contracts (Rights of Third Parties) Act 1999. 13.2 It is agreed that it is intended to confer a benefit on the University and its Affiliates by making the exclusions and limitations of liability available to them in accordance with this licence, provided that the rights of such Affiliates under this licence shall only be enforceable by the Licensee on their behalf. The University will owe no duty to them to enforce such rights and it may conduct or compromise any relevant proceedings as it sees fit. 13.3 Except as provided in clause 13.1 and clause 13.2, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act. 13.4 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any person that is not a party to this agreement. 14. No partnership or agency 14.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. 14.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person. 15. Force majeure Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. 16. Notices 16.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be: (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (b) sent by fax to its main fax number; or (c) sent by email to that party’s email address. 16.2 Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; (c) if sent by fax, at 9.00 am on the next Business Day after transmission; or (d) if sent via email, at 9.00 am on the next Business Day at the time of sending as evidenced by the sender’s computer system. 16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. 17. Changes to terms 17.1 The University may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce. 17.2 The University will give at least 20 days’ notice of any change via email in accordance with Clause 16 of this agreement. 17.3 If the Licensee does not accept the notified changes you will not be permitted to continue to use the Licensed IP. 18. Governing law and jurisdiction 18.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 18.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). This licence has been entered into on the date stated at the beginning of it.