End-User licence agreement for monitoring systems provided by CEM (Centre for Evaluation and Monitoring) 2018-19
This agreement is made between the end user of this software (The “School”) and The University of Durham, whose registered address is The Palatine Centre, Stockton Road, Durham, DH1 3LE as represented by the Centre for Evaluation and Monitoring (“CEM”).
- The School or organisation purchasing on behalf of the school (henceforth referred to as the “School”) wishes to purchase a licence from CEM to use one or more of CEM’s assessment and monitoring systems (henceforth referred to as the “System”), install or access online software belonging to CEM to facilitate computer based assessment which may include associated software components, media, printed materials, and "online" or electronic documentation which will be administered by the School in the form of a test (henceforth referred to as the “Assessment”), and access online or downloadable analysis of assessment data and other data provided by the school, including additional guidance material (henceforth referred to as the “Reports”);
- CEM has agreed to allow the School to install or access online, and otherwise use the Assessment and Reports subject to the terms and conditions of this Agreement;
- In placing an online order with CEM (an “Order”) for any of CEM’s Systems, the School understands that in doing so, the School enters into a legally binding contract with the University of Durham in respect of a Licence to access and use such Systems. Incorporated into this Licence are the terms of the Order, and the conditions as set out in this Licence.
TERMS AND CONDITIONS OF LICENCE:
- CEM hereby grants to the School the right to install and use multiple copies of the Assessment on the School’s computers running validly licensed copies of the operating system for which the Assessment was designed.
- CEM hereby grants to the school the right to access online or download multiple copies of the Reports for use by the school.
- CEM agrees to provide the Assessment and Reports as detailed in the School’s Order in accordance with the terms and conditions of this Agreement. CEM will use its best endeavours to ensure that the Assessment is provided under the best care, skill and diligence and in accordance with best industry practice as outlined by the guidelines of the British Educational Research Association (BERA), and in accordance with CEM’s ethical research framework, and in accordance with all applicable laws and regulations, and in consultation with the Schools.
- In consideration of the rights granted to the School hereunder, the School undertakes and agrees to make payment to CEM of the Licence Fee detailed in the Order, within thirty (30) days of receipt of an invoice.
- The School acknowledges and agrees that any and all Intellectual Property Rights held in the System, Assessment and Reports including but not limited to all copyright therein, shall remain the sole and exclusive property of CEM.
- CEM shall at its own expense obtain written permission for the inclusion of any copyright material in the Assessment or Reports, and shall be responsible for the payment of all fees charged for the use of such material subject to copyright.
- CEM warrants to the School that the Intellectual Property Rights in the Assessment and Reports, so far as it is aware and to the best of its knowledge and belief, do not infringe the rights of any third party and that no third party has threatened or is currently threatening proceedings in respect of such infringement, and none of its Intellectual Property Rights in the Assessment or Reports is the subject of any actual or, so far as it is aware, threatened challenge, opposition or revocation proceedings.
- The Parties agree at all times to handle personal information of the candidates strictly in accordance with the Data Protection Legislation which for the purposes of this Agreement means the Data Protection Act 1998, the Regulation EU/2016/679 of the European Parliament and of the Council of 27 April 2016 (the General Data Protection Regulation) and all applicable laws and regulations relating to processing of personal data and privacy including where applicable the guidance and codes of practice issued by the Information Commissioner..
- The School will act as Data Controller, and CEM will act as Data Processor, in respect of any personal data entered into the System or otherwise supplied to CEM for the purpose of the Assessment or Reports. CEM will act as Data Controller in respect of information processed for research purposes.
- The School agrees they are responsible for ensuring they have a lawful basis for sharing any of the personal data provided to CEM as part of the System.
- The School agrees that they are responsible for ensuring that adequate privacy notices are provided to data subjects and for seeking consent for the processing of personal data.
- The School acknowledges that personal data provided to CEM will be used by CEM for research purposes and for service improvement. No School or individual will be identified as part of any published research. The School is responsible for ensuring that this processing activity is included within privacy notices.
- CEM shall provide appropriate technical and organisational measures to protect the security of the data, in particular against unauthorised and unlawful access or processing, alteration, accidental loss or destruction of or damage to the data, and will take all reasonable steps to ensure the reliability of any of its staff who have access to the data.
- The School hereby acknowledges to CEM that CEM is subject to the requirements of the Freedom of Information Act 2000 and the School agrees to assist and co-operate with CEM (at their own expense) to enable CEM to comply with these information disclosure requirements. Further, in the event that the School is also subject to the requirements of the Freedom of Information Act 2000, CEM agrees to assist and co-operate with the School (at their own expense) to enable the School to comply with these information disclosure requirements. Any disclosure made by either party pursuant to such party’s obligations under the provisions of the FOIA, shall not constitute a breach of this Agreement. The provisions of this clause 11 shall apply during the continuance of the Agreement and indefinitely after its expiry or termination.
- The following sets out the entire financial liability of CEM to the School in respect of any breach by CEM of this Agreement, non or incomplete performance or contemplated performance by CEM of this Agreement, negligence for which CEM is liable, and any representation or statement arising under or in connection with this Agreement or by or on behalf of CEM:-
15.1. in respect of all other losses and claims, the aggregate liability of CEM for any breach, negligence and/or liability arising in any other way out of the subject matter of this Agreement or the performance of the Assessment will not exceed in total the amounts actually received by CEM from the School for the licence of the Assessment software under this Agreement; and
15.2. CEM shall in no circumstances be liable for any loss of profits, loss of business or production, depletion of goodwill, loss of or corruption to data, and/or any indirect loss.
- CEM will in no event be liable for any statement or representation about the School, their business, products or services made or communicated in or by any item, material or work approved by the Schools in writing.
- For clarity, nothing in this Agreement limits or excludes either Party’s liability for death or personal injury caused by such Party’s negligence or any fraud or for any sort of liability that by law cannot be limited or excluded.
- The School undertakes that under no circumstance shall the School:
18.1. copy, reproduce or create derivative works from the System, Assessment and/or Reports;
18.2. provide the System, Assessment and/or Reports to any a third party, other than as contemplated under this Licence, without the express written permission of CEM. It is acknowledged and agreed by CEM that the School shall be allowed to share the System, Assessment and/or Reports with third Parties with whom it is strictly necessary in order to allow the School to make full use of the System as contemplated under this Agreement, which shall include, but not be limited to bodies representing parents, local authorities, the School’s parent company/trust, external inspectors and education consultants employed by the school;
18.3. sublicense, rent, sell or lease any portion of the System, Assessment and/or Reports ; nor
18.4. use the System, Assessment and/or Reports in any manner not authorised by these terms.
- The School hereby acknowledge that certain elements of the System, Assessment and Reports may at any time be in the process of being developed. The System, Assessment and/or Reports may subsequently be substantially modified or withdrawn at the sole discretion of CEM.
- The School’s installation and use of the System, Assessment and/or Reports is at the School’s sole discretion and risk and may produce unintended or erroneous results and may contain bugs, errors and other problems that could cause system or other failures and data loss. The School accepts that the System, Assessment and/or Reports is provided to the School "as is" without any warranty, and CEM expressly disclaims any and all warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose or error free operation.
- To the extent permitted by applicable law, in no event shall CEM be liable for damages of any kind under this agreement including, without limitation, direct, indirect, incidental, punitive, or consequential damages. Therefore the entire risk arising out of the use or performance of the System, Assessment and/or Reports shall remain with the School.
- Notwithstanding any damages that the School might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of CEM and any of its suppliers under any provision of this Agreement, the School’s exclusive remedy for all of the foregoing shall be limited to the greater of the amount actually paid by the School for access to the System, Assessment and/or Reports under this Agreement, or FIVE GBP (£5). The foregoing limitations, exclusions, and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
- CEM is not obligated to provide updates to the System, Assessment and/or Reports. However, in the event CEM elects in its sole discretion to provide updates to the System, Assessment and/or Reports, such updates shall be deemed to constitute part of the System, Assessment and/or Reports and shall therefore be subject to these terms.
- The School warrants to CEM it shall at no point:
24.1. take any action which is intended, or could reasonably be expected, to harm in any way CEM or the University of Durham, or CEM’s, or the University of Durham’s reputation; or
24.2. take any action which is intended, or could reasonably be expected to lead to any unwanted or unfavourable publicity for CEM or for the University of Durham.
- The School may terminate this Agreement for convenience at any time prior to commencement of installation or use of the Assessment, by written notice to CEM. Where this Agreement is terminated by the School for convenience prior to installation or use of the Assessment, the School agrees to pay CEM a withdrawal fee to a total sum of FIFTY GBP (£50). Payment of said withdrawal charge shall be made within thirty (30) days of receipt by the School of an invoice. Where the School wishes to terminate this Agreement following installation or use of the Assessment, the School may do so by written notice to CEM, however, where installation of the Assessment has already begun, the School shall remain liable to CEM to pay the Licence Fee in full.
- In the event that any Court or other competent authority decides that any provision of this Agreement is void or otherwise ineffective in whole or in part then any other part and the other terms and conditions of this Agreement shall continue in full force and effect.
- The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
- This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous agreements, arrangements or undertakings between the parties relating to the subject matter of this Agreement and any representations or warranties previously given or made to it.
- This Agreement is governed by and interpreted in accordance with English law. Any disputes or claims relating to this Agreement shall be subject to the exclusive jurisdiction of the English Courts.