BY USING OR ACCESSING RM UNIFY YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICE.
THIS AGREEMENT SHALL APPLY TO YOUR USE OF THE SERVICE, REGARDLESS OF ANY OTHER TERMS AND CONDITIONS THAT YOU MAY HAVE PROPOSED AND/OR ANY OTHER TERMS THAT MAY HAVE BEEN AGREED EITHER IN WRITING OR ORALLY BETWEEN YOU AND RM.
IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE TERMS OF THIS AGREEMENT AND ANY OTHER TERMS, THE TERMS OF THIS AGREEMENT SHALL PREVAIL. BY ACCESSING AND USING THE SERVICE, YOU CONFIRM YOUR AGREEMENT TO THESE TERMS.
1 DEFINITIONS "Agreement" these Terms and Conditions, together with any Order.
"Applications" shall mean applications provided by either RM or a third party, which are available to use via RM Unify.
"Confidential Information" shall mean and include all information which the disclosing party reasonably regards as confidential (which in the case of RM shall include without limitation all of RM's technical materials, software, trade secrets, documentation and pricing) but shall exclude information which:
(a) is already in the public domain or comes into the public domain other than as a result of a breach of an Agreement;
(b) the receiving party can demonstrate was developed independently of information received from the other party;
(c) is required to be disclosed by statute (but not contractual obligation); and
(d) is received from a third party who is entitled to share such information without restriction.
"Customer" means the person or organisation whose name is set out in the Order.
"Customer Data" means any data, information or material provided or submitted by You or Your Users to the Service in the course of using the Service.
"Effective Date" means the earlier of the date this Agreement is accepted or the date You begin using the Service.
"Initial Term" means the initial period during which You are obliged to pay for the Service as stated in the Order.
"IPR" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
"Malware" means any virus, worm, Trojan horse, logic bomb, time bomb, back door, trap door, malware, botnets or any other similar form of code intended, or having that effect, to cause harm, damage or to prevent or restrict the use of any computer system or data.
"Order" means the order placed on RM by You for the provision of the Service. An order can be (i) a purchase order and/or (ii) any instruction to create an account to use RM Unify, for example where You register to use a free or trial version of the Service.
"Renewal Term" means has the meaning given to it in section 2.1 (below).
"RM" means RM Education Ltd of 140 Eastern Avenue, Milton Park, Abingdon, Oxon, OX14 4SB, UK.
"Service" means access to the RM Unify service as identified in the Order, developed, operated, and maintained by RM, accessible via a designated web site or IP address, to which You are being granted access under this Agreement.
"Suppliers" means companies that supply software, hardware or services that are required to deliver the Service.
"Term" means the Initial Term and any Renewal Term.
"Unacceptable Content" means any material of any nature whatsoever which is or contains any material that: (i) is or may be defamatory, libellous, obscene, in contempt of court or in contravention of any law or regulation or infringes the rights of any third party; and/or (ii) promotes violence or discrimination based on race, sex, sexual orientation, religion, national origin, physical disability, mental disability, age or which promotes any illegal activities; and/or (iii) is Malware.
"User" means Your pupils, their parents and Your employees, representatives, consultants, contractors or agents who are authorised to use the Service and have been supplied user identifications and passwords by You (or by RM at Your request).
"User Software" shall have the meaning given in section 5.1 (below).
"You" or "Your" means the name of the Customer as set out in the Order.
2 DURATION 2.1 This Agreement shall commence on the Effective Date and continue until the end of the Initial Term. At the end of the Initial Term, unless otherwise agreed, this Agreement shall automatically renew for either one year or a period equal to the Initial Term, whichever is the less (each a "Renewal Term"), at the then-current rate payable for the Service. 2.2 Either party may terminate this Agreement by giving not less than ninety (90) days notice prior to the end of the then-current Term.
3 LICENSE GRANT AND RESTRICTIONS 3.1 Upon provision of information required to create an account to use the Service and payment of the relevant fees, RM agrees to provide You with the non-exclusive, limited, non-assignable right to access the Service and use it in connection with educational services You provide to Users. You are not authorised to allow other entities to access or use the Service and You will not charge any User for access or use of the Service unless You have first obtained RM's written consent. 3.2 You may produce copies of any instructions provided by RM and distribute such copies to Users to enable them to use the Service. This shall be without prejudice to the provisions of section 5. 3.3 All rights not expressly granted in this Agreement are reserved to RM. No rights are granted by implication. 3.4 If You subscribe to the RM Unify Standard licence, You are entitled to receive, subject to payment of the relevant fees, access to the RM Unify Support Portal which includes quick start guides and technical articles.
3.5 If You subscribe to the RM Unify Premium licence, You are entitled to receive, subject to the payment of relevant fees:
3.5.1 Access to the RM Unify Support Portal which includes quick start guides and technical articles; and
3.5.2 Telephone and / or online support, subject to the terms of the fair usage policy (see clause 22 below).
4 YOUR RESPONSIBILITIES 4.1 If You or Your Users disclose or share user account details with any third party or allow any third party to use the Service on Your behalf or violate the terms of this Agreement in any other way, You agree to indemnify RM and RM's Suppliers for any losses costs or damages incurred by RM or its Suppliers as a result of Your or Your Users' actions. If RM reasonably believes that an account is being used in any way which is not permitted by RM, RM reserves the right to cancel access rights immediately without notice and to block access to all Users from that account. RM will use reasonable efforts to inform You promptly after taking such action. 4.2 You are solely responsible for acquiring and maintaining all computer hardware and software, telephone and communications equipment needed for access to and use of the Service. 4.3 You are solely responsible for obtaining all appropriate and necessary consents and authorizations from any third party required or appropriate in order to disclose or use any Customer Data, including without limitation personally identifiable information about Your Users, to RM to provide or use such information in connection with the Service. You will be responsible for Your use and Your Users' use and access of Customer Data in a manner consistent with Your and their obligations to third parties. 4.4 You own and have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and IPR ownership or rights to use all Customer Data and RM shall not be responsible or liable for the deletion, correction, destruction, damage, loss of or failure to store any Customer Data. You will maintain back-up copies of such Customer Data to the extent that You or Your Users require such back-up copies. 4.5 You agree to ensure that no User will introduce any Malware into any computer equipment or system or software of RM. You further agree to use virus-checking software before downloading any material from the Internet or the Service and, unless otherwise agreed, shall be responsible for applying anti-virus software to protect Your and Your Users' machines and networks. 4.6 You agree to ensure that no User will use the Service for the purposes of storing, transmitting or receiving any Unacceptable Content. 4.7 The Service provides Users with access to Applications. For the avoidance of doubt, the terms and conditions of all Applications fall outside the scope of this Agreement. It is the sole responsibility of You to ensure that any Applications meet Your and Your Users' requirements. In addition, You are solely responsible for any risk assessments, legal compliance (including without limitation under the Data Protection Act 1998 and any related laws), cookie acceptance and/or any other matter necessary for You or Your Users to use Applications accessed via the Service.
5 INTELLECTUAL PROPERTY 5.1 Title to any software supplied by RM (the "User Software") shall at all times remain vested in RM or its licensors. At no time shall You or any User gain any title to any such software or be entitled to receive a copy of the RM software You are using to provide the Service. 5.2 Subject always to the provisions of section 5.1, RM hereby grants to You a limited, non-exclusive, non-transferable License to access and use the software made available to You (if any) by RM for use with the Service for the duration of the Term. You shall ensure that Users treat the Service and any User Software like any other copyrighted material (e.g. a book or musical recording) except that You may either: 5.2.1 make one copy of the User Software solely for backup or archival purposes; or 5.2.2 transfer the User Software to a single hard disk, provided that You keep the original solely for backup or archival purposes. You must reproduce and include the copyright notice on any such copy. For the avoidance of doubt, the above section 5.2.1 shall only apply in relation to the User Software and not any other information, materials or other items provided or made accessible to You as part of the Service, save as expressly set out in section 3.2 (above). 5.3 You undertake not to perform (nor allow any User to perform) any of the acts referred to in this section 5.3 except to the extent and only to the extent permitted by law as a lawful user of the Service and/or User Software and only then for the specific limited purpose permitted by law or in this Agreement. You undertake (including on behalf of all Users): 5.3.1 not to copy the Service and/or User Software (other than for normal system operation and as expressly specified in this Agreement) nor otherwise reproduce the same; 5.3.2 not to translate, adapt, vary or modify the Service and/or User Software; 5.3.3 not to disassemble, decompile or reverse engineer the Service and/or User Software; 5.3.4 not to remove, obscure or modify any notice of patent, copyright, trademark or other proprietary rights notice on the Service and/or User Software; 5.3.5 not to sublicense, distribute, rent, lease, or otherwise transfer the Service and/or User Software or any unique access code or copy the Service and/or User Software other than as expressly provided in this Agreement; 5.3.6 not to make the Service and/or User Software accessible by any type of broadcast or transmission, including but not limited to broadcast or transmission by cable, Internet, television, satellite, or telephone; 5.3.7 not to use the Service and/or User Software to attract customers away from RM or to procure commercial advantage over RM or to use it in any other way which is likely to be directly or indirectly detrimental to RM or its business; 5.3.8 not to reproduce or transmit to or store in any website any part of the Service or User Software, nor disseminate in any electronic or non-electronic form any of the pages or parts thereof, nor include any of the foregoing in any public or private electronic retrieval system or service; and 5.3.9 not to enable a third party to do any of the acts set out in this section 5.3. 5.4 If notified promptly in writing of any action (and all prior claims relating to such action) brought against You, based on a claim that any User's use of the Service infringes a UK patent or copyright, RM will defend such action at its expense and pay the costs and damages awarded, provided that RM shall have sole control of the defence of any such action and all negotiations for its settlement or compromise. At any time during the course of any litigation or other dispute resolution process arising out of a claim of infringement for a UK patent or copyright, or if in RM's opinion, the Service is likely to become the subject of a claim of infringement of a UK patent or copyright, RM will at its option and expense either: procure for You and any Users the right to continue using the Service; replace or modify the same so that it becomes non-infringing; or refund the prior month's subscription fees for the Service and any pre-paid unused amount and terminate the license to the Service. RM will not have any liability to You under any provision of this section if the infringement or claim thereof is based upon: 5.4.1 use of the Service in combination with other equipment or software not supplied by RM; or 5.4.2 the use of the Service in carrying out any patented process; or 5.4.3 infringement as described in section 5.6 (below). 5.5 Section 5.4 (above) states the entire liability of RM and the sole remedy of the Customer and the Customer's Users with respect to infringement of patents or copyrights by the service or any part thereof or by its operation. No costs or expenses will be incurred for the account of RM without the prior written consent of RM. 5.6 RM is not responsible for monitoring any content or information submitted by You or any of Your Users. You should implement policies and procedures to ensure all content You or Your Users submit to the Service are appropriate for the Users, meet with Your requirements, and are in conformance with this Agreement. RM may remove any content or Applications from the Service in its absolute discretion (particularly content that may be illegal, of substandard quality or violates this Agreement) and/or immediately suspend or terminate access and use of the Service by any User associated with content or activities that violate this Agreement. RM reserves the right to suspend the Service to You and Your Users in the event such activities pose a risk to RM's systems or use of the Service by RM's other customers. You will hold RM harmless against any expense, judgment, liability or loss, or infringement of any IPRs which results from: (a) Your provision of the Customer Data to RM or the Service; (b) RM's compliance with Your or any User's instructions; (c) use by RM of any Customer Data or other materials or information provided by You or any User; (d) use of Applications accessed via the Service by You or your Users, (e) the violation of any law, regulation or third party right by any content, data or information provided by You or any of Your Users; or (f) Your or Your User's violation of this Agreement. 5.7 RM may update, modify, change features, improve or extend the Service and related User Software from time to time. To the extent any such modification results in a material adverse impact and You notify RM within thirty (30) days of such change, RM will either modify the Service or User Software to remedy or provide a workaround to the issue or allow You to terminate without additional liability on condition that Your termination is completed within an additional thirty (30) day period.
6 TERMINATION 6.1 Either party may terminate this Agreement: 6.1.1 in accordance with section 2.2 (above); 6.1.2 if the other party commits any material breach of this Agreement which is not remedied within thirty (30) days of a notice requiring such breach to be remedied; or 6.1.3 if the other party ceases to carry on business or substantial part thereof, commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary other than for the purposes of amalgamation or reconstruction or compounds with its creditors generally or has a receiver or manager appointed over all or any part of its assets or suffers execution or distress or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due. 6.2 RM may terminate this Agreement upon written notice to You (which would automatically terminate any related License(s)) if You fail to pay any sums to RM in respect of the Service on the due date of payment. 6.3 Subject to section 6.4 (below), following termination of this Agreement, RM will provide You with access to the Service for a limited period of no more than thirty (30) days from the date of termination to enable You to take copies of any Customer Data if You request this at the time of termination. 6.4 Where this Agreement has been terminated by RM pursuant to sections 6.1.2, 6.1.3 or 6.2 (above), Your and Your Users' right to access or use of Customer Data shall immediately cease and RM may withhold, remove and/or discard Customer Data without notice. Additionally, RM shall have no obligation to maintain or forward any Customer Data in such circumstances. 7 WARRANTY DISCLAIMER You accept that RM is acting only as a supplier and that it is Your responsibility to verify that the Service will be suitable for Your and Your Users' own requirements and the results You and Your Users intend to achieve through use of the Service. The service is provided "as is", "where is", and RM disclaims all warranties, conditions, guarantees or representations, whether express, implied or statutory, including without limitation any warranty of merchantability or fitness for a particular purpose. RM makes support services available for the Service under a separate support services agreement.
9 RM APPLICATIONS 9.1 To provide customers with a single, consistent identity and improved experience when using the Service, RM Unify has been designed to support account creation in, and single sign-on to, other RM Applications. By agreeing to this Agreement You agree to RM creating user accounts for You and Your Users for other RM Applications. 9.2 You acknowledge, understand and agree to Your nominated administrators having authority to determine which Applications are available to You and Your Users. 9.3 You acknowledge that when accessing any RM Applications, each User will be required to agree to the terms and conditions relating to that Application. Prior to accepting the respective terms and conditions, accounts in these integrated services may remain dormant and inaccessible.
11 CONFIDENTIALITY 11.1 The information that You and Your Users provide to RM will be used by RM for the effective administration of its services and to communicate with You and Users generally. 11.2 You agree to keep and to procure that Your Users keep RM's Confidential Information secure and to implement such security measures in relation to RM's Confidential Information as You employ on Your own Confidential Information, but in no event will You or Your Users use less than reasonable measures to protect RM's Confidential Information. You acknowledge and agree the software used to provide the Service constitutes RM's Confidential Information. You agree that You and Your Users will not disclose any of RM's Confidential Information to any third party without RM's prior written consent.
12 LIMITATION OF LIABILITY 12.1 The Service has been manufactured or developed by RM or third parties to standard specifications. You accept that RM is acting only as a supplier and that it is Your responsibility to verify that the Service will be suitable for Your own and Your Users' requirements. There are no warranties, conditions, guarantees or representations as to description, merchantability or fitness for a particular purpose or other warranties, conditions, guarantees or representations relating to the Service, whether express implied by statute or otherwise oral or in writing except as provided in this Agreement and except as to statute implied terms as to title. 12.2 You agree that RM will not be liable for any loss arising out of the provision of goods or services by any company, organisation or person other than RM or for any loss caused by Your or Your Users' failure to perform Your or their obligations under this Agreement. In particular but without limitation to the generality of the foregoing, RM shall not be responsible nor liable for Your or Your Users' inability to access the Service or any impairment in using the Service where such inability or impairment results from any incompatibility between any hardware or software used by You or Your Users, unless such items have been supplied by RM specifically for use with the Service. 12.3 RM's liability shall be unlimited in respect of (a) any death or personal injury caused by its negligence or that of its employees, agents or contractors; (b) fraud; (c) under Part 1 of the Consumer Protection Act 1987; (d) for breach of any conditions as to title or quiet enjoyment implied by section 12 of the Sale of Goods Act 1979 (as amended) or section 2 of the Supply of Goods and Services Act 1982 (as amended) under any express indemnities contained in this Agreement; or (e) for any other matter in respect of which law prescribes that liability may not be excluded or limited. 12.4 Subject to clause 12.3 (above), RM shall not in any event be liable for any loss of profits, loss or corruption of data, loss of use, loss of goodwill, anticipated savings, loss of amenity, or any indirect, special or consequential losses, in each case howsoever arising, in connection with or arising out of the supply, functioning or use of the Service even if RM shall have been advised of the possibility of such potential loss and shall not be liable for any loss except as provided for in this Agreement. 12.5 Subject to clause 12.3 (above), the maximum aggregate liability of RM whether in contract, tort, negligence, statutory duty or otherwise, for any loss or damage whatever arising from or in any way connected with the Service shall be limited to the fees paid or payable in respect of the Service, or in the event no fees are payable, the sum of £50. This limit shall also apply in the event that any exclusion or other provision contained in this Agreement is held to be invalid for any reason and RM becomes liable for loss or damage that could otherwise have been limited.
You shall ensure that You, Your Users and all of Your staff, agents, contractors and any other party performing Your obligations or exercising Your rights under or in connection with this Agreement and/or any other agreement that You may have with RM, complies at all times with all applicable anti-bribery and/or corruption laws, regulations and codes of conduct in all jurisdictions. You shall, whenever requested by RM, provide evidence of the measures, steps and processes that You take to ensure compliance with the provisions of this clause and the relevant laws, regulations and codes of conduct. 14 NOTICE 14.1 Any notices You may wish to serve on RM must be sent by first class registered post to RM's registered office. Any such notice will be deemed delivered on receipt. 14.2 RM may give notice to You by means of a general notice on the Service, electronic mail to Your e-mail address on record in RM's account information, or by first class mail to the address on Your record held by RM. Any such correctly addressed notices shall be deemed to have been given upon the expiration of 48 hours after posting (if sent by first class mail) or 12 hours after sending (if sent by email). 15 ENTIRE AGREEMENT; MODIFICATIONS TO TERMS 15.1 These terms and conditions together with the Order constitute the entire agreement between RM and You with respect to the subject matter of this Agreement. 15.2 RM reserves the right, on reasonable notice, to change these terms and conditions. It is Your responsibility to check the terms and conditions governing the use of the Service by You or Your Users. 15.3 Any terms and conditions set forth in the Order shall only be effective with respect to the number of items ordered, the scope of the Service ordered, the Term and the pricing. 15.4 Notwithstanding any other provisions set forth in the Order, sale order, account registration confirmation, sale confirmation or any other document relating to the subject matter of this Agreement, these terms and conditions will take precedence over any such document, and any conflicting, inconsistent, or additional terms contained therein will be null and void and are hereby rejected.
16 FORCE MAJEURE Neither party shall be liable to the other for any delay in or failure to perform its obligations under this Agreement (other than a payment of money) provided that such a failure is due to causes beyond its reasonable control. Such causes shall include but are not limited to terrorism, fire, flooding, lightning, storm, power surges and failures, failure of suppliers, telecommunications disruptions, industrial disputes and other similar action, earthquakes and acts of God.
17 NON-WAIVER Failure by either party to exercise or delay exercising any of the terms of this Agreement shall not constitute or be deemed to be a waiver of its rights under this Agreement nor prejudice its rights to take subsequent action.
18 NON-ENFORCEABILITY The invalidity or unenforceability for any reason of any part of this Agreement shall not prejudice the continuation in force of any other part of this Agreement. 19 ASSIGNMENT This Agreement may not be assigned by You without the prior written consent of RM (which RM shall be entitled to refuse at its absolute discretion). RM shall be entitled to assign the benefit and/or burden of this Agreement to any other subsidiary (of any level) of RM plc (Regd No 01749877) upon giving notice to You to that effect. RM shall also be entitled to use subcontractors at its discretion in order to provide the Service.
20 CUSTOMER MORE THAN ONE PERSON Where any order for the Service has been made by two (2) or more legal persons jointly, the liability of such persons and their obligations to RM under this Agreement shall be joint and several. 21 THIRD PARTY RIGHTS Nothing in this Agreement shall confer on any third party any right or benefit under the provisions of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
22 FAIR USAGE
22.1 A fair usage policy applies to the use of the Services and in particular the number of service calls that can be opened by You. Information describing how the fair usage policy applies to the Services are available at www.rm.com/support.
22.2 If the number of service calls opened exceeds the number permitted in the applicable fair usage policy, RM may, at its discretion, refuse to open new service calls until the earlier of (i) the renewal of the Service; or (ii) the purchase of an additional Service. RM's refusal to open a new service call will not affect the status of any service call opened prior to any refusal of service nor will it affect your entitlement to use other services that are not subject to the fair usage policy.
22.3 If in RM's reasonable opinion excessive use of the Services is caused by a lack of network management training, RM will bring this to Your attention, and You must address any training need to the satisfaction of RM without delay.
23 REMOVAL OF CONTENT
Notwithstanding any other provision of this Agreement, RM reserves the right to amend, remove, suspend or disable access to any Application or other materials that are offered as part of the Service without notice. In no event will RM be liable for making such amendments, removals, suspensions or disabling of access. For the avoidance of doubt You or Your Users shall not be entitled to any refund from RM for any Applications or other materials that are removed or become unavailable.
24 GOVERNING LAW
This Agreement (and any dispute, controversy, proceedings or claim of whatever nature) shall be governed by English law. The parties hereby submit to the exclusive jurisdiction of the English courts.