Terms and Conditions
FAGUS TERMS AND CONDITIONS AND LICENCE
LAST UPDATED: 24th May 2018
- Beech Lodge School Services Limited a company limited by shares of Sorbon Aylesbury End, Beaconsfield, HP9 1LW, UK registered company no: 07863609 (Licensor).
- The legal entity or individual using the Fagus purchasing systems and purchasing a licence to use Fagus in accordance with this agreement after accepting this agreement via the Website (Licensee).
(A) The Licensor has created Fagus (as defined below).
(B) The Licensee wishes to receive and the Licensor is willing to grant to the Licensee a licence,
on the terms and conditions set out in this agreement, of the Marks and Fagus.
The following definitions and rules of interpretation apply in this agreement.
Copyright: all copyright and rights in the nature of copyright subsisting in Fagus in any part of the world to which the Licensor is, or may become, entitled.
data controller, data processor, data subject, personal data, process/processing, “sensitive personal data: each has the same meaning given to it in the Data Protection Act 1998 or any statutory amendment or re-enactment of that Act;
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Effective Date: the meaning given in clause 2.8.
Fagus: the Fagus resource materials including both the Portfolio and the electronic and online materials, as further detailed on the Website and to all or part of which the Licensee is given access after purchasing the licences under this agreement.
GDPR: means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);
Goodwill: the goodwill attaching to the Marks and Fagus.
Guidelines: the Licensor's conditions with regard to the use of Fagus and the Marks that are provided on the Website or when sending the Portfolio to the Licensee; and any other specifications, standards or guidelines relating to Fagus and/or or the Marks which are notified in writing to the Licensee by the Licensor.
Annual Licence Fee: the annual licence fee for each Product of:
|Annual Licence A – 1 user (10 pupils)||£50||Free|
|Annual Licence B – 3 users (30 pupils)||£80||Free|
|Annual Licence C – 6 users (60 pupils)||£95||Free|
or such other Annual Licence Fee as agreed between the parties in writing from time to time.
Legislation: the Data Protection Act 1998 and its successor Act and any other legislation applicable to the processing of data in the UK including the Privacy and Electronic Communications (EC Directive) Regulations 2003 and, on and from 25 May 2018, the GDPR (to the extent applicable) and all other applicable legislation, regulations, codes of practice and requirements of any relevant government or governmental agency, regulator, or any other applicable body in respect of the processing of Personal Data and any guidance or codes of practice that may from time to time be issued by the Information Commissioner (or any successor regulator);
|1 hard copy portfolio||£400||Free|
Each Product which is an annual licence of Fagus as set out below:
|Annual Licence A – 1 user (10 pupils)|
|Annual Licence B – 3 users (30 pupils)|
|Annual Licence C – 6 users (60 pupils)|
Purpose: use by the Licensee to monitor, review and support the emotional development of pupils the Licensee works with, strictly only by the Licensee and in accordance with the Product(s)’ limit of users/pupils;
School: Beech Lodge School Limited of Sorbon 24-26 Aylesbury End, Beaconsfield, HP9 1LW, UK, registered company no: 08168311, and registered charity no: 1151323.
Term: the term of this agreement as set out in clause 9.
The Territory is:
for hardcopy use of Fagus in accordance with the Purposes: at the premises where the Purposes are carried out;
for online use of Fagus in accordance with the Purposes: in the UK; and
for online use of the Marks on the Licensee’s main website in accordance with clause 2.2 of this agreement: worldwide.
VAT: value added tax or any equivalent tax chargeable in the UK.
Website: the website at: http://www.fagus.org.uk/
1.2 Clause and paragraph headings shall not affect the interpretation of this agreement.
1.3 References to clauses are to the clauses of this agreement.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and
in the plural shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a
reference to the other genders.
1.6 This agreement shall be binding on, and ensure to the benefit of, the parties to this
agreement and their respective personal representatives, successors and permitted
assigns, and references to any party shall include that party's personal representatives,
successors and permitted assigns.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written includes by email.
1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11 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.
Licence of Fagus and Marks
2.1 The Licensor hereby grants to the Licensee (subject to the Licensee obligations under this Licence) a non-exclusive licence under the Copyright to use Fagus for the Purposes in the Territory for the Term, subject to, and in accordance with, the terms of this agreement.
2.2 The Licensor licences the Licensee (subject to the Licensee obligations under this Licence) as non-exclusive Licensee in the Territory to use the Marks on the Licensee’s main website but only to indicate the Licensee’s use of Fagus (or any other use approved in writing by the Licensor) for the Term on the terms of this agreement.
2.3 The Licensee shall not use Fagus or the Marks in any way not permitted by this agreement and, in particular (without limitation) shall not:
2.3.1 make online or hardcopy copies of Fagus for use internally by the Licensee;
2.3.2 copy (electronically or in hardcopy format), distribute or share all or any part of Fagus to/with any third party;
2.3.3 create any product, brand or copyright work that infringes all or any part of the Copyright and/or infringes the Marks, including products based on Fagus or alterations or adaptions to Fagus; or
2.3.4 create any alteration, adaption, improvement or translation of Fagus, except with the Licensor’s prior written consent.
2.4 The Licensee shall ensure that it uses Fagus and the Marks in accordance with any Guidelines.
2.5 The Licensee shall, in exercising its rights under this agreement, comply with all applicable laws, regulations and codes of practice.
2.6 The Licensee shall promptly provide the Licensor with details of any complaints it has received relating to Fagus together with reports on the manner in which such complaints are being, or have been, dealt with and shall comply with any reasonable directions given by the Licensor in respect of such complaints.
2.7 Nothing in this agreement shall constitute any representation or warranty that the exercise by the Licensee of rights granted under this agreement will not infringe the rights of any person.
2.8 After the Licensee places an order for Fagus, it will receive an e-mail from the Licensor acknowledging that the order is complete (Confirmation Email). This agreement between the Licensor and Licensee is formed when the Confirmation Email is dispatched (Effective Date).
2.9 If the Licensor is unable to supply the Portfolio or any Product, it will inform the Licensee by e-mail and will not process the order. If the Licensee has already paid for the Portfolio or Product(s), the Licensor will refund the Licensee the full amount including delivery costs (if any) charged as soon as possible.
2.10 If the Licensee has purchased the Portfolio, the Licensor will contact the Licensee with an estimated delivery date which will be within 14 days of the Confirmation Email. Delivery of a Portfolio will be completed when the Licensor delivers the Portfolio to the address the Licensee has given (which must be in the UK) when ordering via the Website and the Portfolio will be the responsibility of the Licensee from that time. The Licensee will own the Portfolio(s) once the Licensor has received the relevant Portfolio Fee(s) in full, including all applicable delivery charges.
Obligations of the Licensee
3.1 The Licensee shall:
3.1.1 not do anything that will, or is likely to, damage Fagus, or the School’s or Licensor’s reputation, name, Marks or Goodwill;
3.1.2 obtain the Licensor’s prior written approval to all materials (in any media), which bear the Marks, except the use of the Marks on the Licensee website in accordance with clause 2.2.
3.2 The Licensee shall not and shall not permit any other person to:
3.2.1 during or after the Term in any part of the world use or register, or attempt to use or register, or claim rights in any of Fagus, the Marks or names which adopt distinctive elements of the Marks, other than as authorised under this agreement;
3.2.2 do anything which may denigrate the value of or render invalid Fagus or the Marks;
3.2.3 make any representation or do any act which may be taken to indicate that it has any right, title or interest in or to the ownership or use of any of: Fagus, the Marks or any confusingly similar marks except under the terms of this agreement; and
3.2.4 use the Marks or any confusingly similar mark other than in accordance with this agreement.
3.3 Use by the Licensee of Fagus and the Marks shall not operate to transfer to the Licensee any right in respect of Fagus or the Marks and the Licensee acknowledges that all rights in Fagus and the Marks including any Goodwill belong to and shall remain vested in the Licensor.
3.4 If the Licensee becomes aware of any unauthorised use or infringement of Fagus or the Marks or of any claims or actions in connection with Fagus or the Marks, it shall promptly notify the Licensor with full details.
3.5 The Licensee may not bring, defend or settle any action in relation to Fagus or the Marks. The Licensor may in its sole discretion bring or defend an action but shall not be obliged to bring or defend any proceedings in relation to Fagus or the Marks and the Licensor may join the Licensee (at the Licensor’s cost) in bringing or defending such action.
3.6 The Licensee warrants that it is not a consumer but is entering into this agreement as a business, and will only use Fagus for internal business purposes.
3.7 The Licensee further warrants that it is a sole trader or legal entity capable of entering into this agreement.
3.8 The Licensee shall comply with the reasonable requests of the Licensor (including reasonable requests for information) about the Licensee’s use of Fagus.
Changes to this Agreement
The Licensor may amend this agreement from time to time. The Licensee should look at the top of this page to see when this agreement was last updated. However, under no circumstances will any Portfolio Fee, or the Annual Licence Fee for the period for which it covers, be increased after the relevant payment has been received.
5.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after the expiry or termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or the School, nor any of the terms of this agreement, except as permitted by clause 5.2.
5.2 Each party may disclose the other party's confidential information:
5.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with the obligations set out in this clause 5 as if they were a party to this agreement; and
5.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
5.3 No party shall use the other party's confidential information for any purpose other than to exercise its rights or perform its obligations under or in connection with this agreement.
5.4 The Licensee shall ensure that in its use of the Licensor’s Fagus system and the Licence it shall comply with the Legislation and shall not do or omit to do anything which would result in the Licensor being in breach of the Legislation.
5.5 The Licensee when uploading information to the Licensor’s Fagus system shall ensure that any personal information is anonymised (such as pupil information) and where this is not possible warrants that it has all necessary consents to share the personal information with
- a) the Licensor;
- b) any person or organisation with whom the Licensee may choose to share passwords or log in details; and
- c) any person or organisation to whom the Licensee may provide hard copies of any information they choose to download from the electronic system.
5.6 In the case of the Licensee choosing to share information as outlined in 5.5 b) and c) above (or in any other way), the Licensee shall be solely responsible for ensuring that a lawful basis exists for such sharing and the Licensor shall have no liability for any loss resulting from such sharing.
5.7 The Licensee shall cooperate with the Licensor as requested should the Licensor receive any request for information from a data subject to which they are required to respond as a data controller and the Licensee acknowledges and agrees that in responding to a valid subject access request under the Legislation the Licensor may access data on the Licensor’s system.
6.1 If purchasing a Portfolio, the Licensee will pay the Portfolio Fee in accordance with the payment instructions on the Website or as otherwise confirmed in writing by the Licensor to the Licensee.
6.2 Before the commencement of this agreement and on or before each anniversary of entering into this agreement, the Licensee shall pay to the Licensor the Annual Licence Fee. The Annual Licence Fee is inclusive of VAT (which must be paid as part of the Annual Licence Fee).
6.3 All fees payable by the Licensee to the Licensor under this agreement shall be paid in sterling to the credit of a bank account to be designated on the Website or in writing by the Licensor to the Licensee, or by such other payment method as is designated on the Website or in writing by the Licensor to the Licensee.
6.4 In the event of any delay in paying any sum due under this agreement by the due date, the Licensee shall pay to the Licensor:
6.4.1 interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Licensee shall pay the interest together with the overdue amount; and
6.4.2 an amount equal to any penalties incurred by the Licensor as a direct result of the delay.
6.5 The provisions of this clause 6 shall remain in effect notwithstanding termination or expiry of this agreement until the settlement of all subsisting claims by the Licensor.
Liability, indemnity and insurance
7.1 To the fullest extent permitted by law (and subject to clause 7.6), the Licensor shall not be liable to the Licensee for any costs, expenses, loss or damage (whether direct, indirect or consequential, economic or other, loss of business opportunity or loss of goodwill) arising from the Licensee's exercise of the rights granted to it under this agreement.
7.2 Subject to clause 7.3, the Licensee shall indemnify the Licensor against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Licensor arising out of or in connection with:
7.2.1 the Licensee's exercise of its rights granted under this agreement; and
7.2.2 the Licensee's breach or negligent performance or non-performance of this agreement.
7.3 The indemnity at clause 7.2 shall not cover the Licensor to the extent that a claim under it results from the Licensor's negligence or wilful misconduct.
7.4 If a payment due from the Licensee under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Licensor shall be entitled to receive from the Licensee such amounts as shall ensure that the net receipt, after tax, to the Licensor in respect of the payment is the same as it would have been were the payment not subject to tax.
7.5 Nothing in this clause shall restrict or limit the Licensor’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
7.6 Nothing in this agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence.
7.7 This clause 7 shall survive termination of this agreement for any reason.
Sub-licensing, assignment and otherwise dealing
8.1 Except as expressly permitted under this agreement, the Licensee shall not assign, transfer, mortgage, charge, sub-license, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Licensor.
8.2 The Licensor may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and/or obligations under this agreement.
8.3 The Licensor may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party.
Duration and termination
9.1 This agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with this clause 9, until the expiry of the anniversary of the date of this agreement (each year) when it shall expire automatically without notice unless the Licensee has paid the Annual Licence Fee for the following year.
9.2 The Licensor shall have the right to terminate this agreement on giving the Licensee not less than two months’ written notice of termination.
9.3 Without affecting any other right or remedy available to it, the Licensor may terminate this agreement with immediate effect by giving written notice to the Licensee if:
9.3.1 the Licensee fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
9.3.2 the Licensee commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
9.3.3 the Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or becomes (or threatens to become) insolvent (if a company) or bankrupt (if an individual);
9.3.4 the Licensee (if a company) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Licensee with one or more other companies or the solvent reconstruction of the Licensee;
9.3.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Licensee (if a company); or
9.3.6 the Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Consequences of termination
10.1 On expiry or termination of this agreement for any reason and subject to any express provisions set out elsewhere in this agreement:
10.1.1 all outstanding sums payable by the Licensee to the Licensor shall immediately become due and payable;
10.1.2 all rights and licences granted pursuant to this agreement shall cease;
10.1.3 the Licensee shall cease to make any use of the Copyright save as set out in this clause;
10.1.4 the Licensee shall return promptly to the Licensor or destroy (at the Licensor’s request) all copies of the Portfolio; and
10.1.5 the Licensor shall securely destroy the Licensee’s data record from the system after one month from the termination date.
10.2 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.
10.3 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.
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.
12.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties.
14.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
14.2 If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Third party rights
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
No partnership or agency
16.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
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.
18.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
18.1.1 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
18.1.2 sent by email to an address confirmed for the purpose.
18.2 Any notice or communication shall be deemed to have been received:
18.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
18.2.2 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 or at the time recorded by the delivery service; and
18.2.3 if sent by email, at 9.00 am on the next Business Day after transmission.
18.3 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.
Inadequacy of damages
Without prejudice to any other rights or remedies that the Licensor may have, the Licensee acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Licensee. Accordingly, the Licensor shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this agreement.
Dispute resolution procedure
20.1 If any claim or dispute arises under or in connection with this agreement, the parties will attempt to settle such claim or dispute by negotiation.
20.2 If any claim or dispute cannot be settled by negotiation within 21 days after either party has made a written offer to the other party to negotiate a settlement to such claim or dispute, the parties shall, before resorting to court proceedings, attempt to resolve the claim or dispute by ad hoc mediation utilising the Centre for Dispute Resolution (CEDR) Model Mediation Procedure (or such other mediation procedure agreed between the parties).
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.