DEFINITIONS
The definitions and rules of interpretation set out below apply to this Agreement:
Agreement: means these General Terms and Conditions granting a Licence for the use of the Website for the supply of Data.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK and between the hours of 9.00 am and 5.00 pm.
Client/You/Your/Licensee: the person entering into this Agreement.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or sub-contractors involved in the provision or receipt of the Services who need to know the confidential information in question (Representatives) to the other party and that party's Representatives in connection with this Agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Data: ISC data on the Database including that which is downloaded as a report, or any other relevant information on the Database downloaded by You in whatever form.
Data Protection Legislation: means all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
Database: where Data and other information is collected and stored.
Effective Date: the date this Agreement is accepted as set out in clause 1.3.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, Database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Licence: Your licence is governed by the terms of this Agreement.
Materials: documents and Data belonging to ISC downloaded from the Website by the Client as a report.
party: means either ISC or the Client/You/Your/Licensee.
parties: collective reference to ISC and Client/You/Your/Licensee.
Software: the online software applications, access to which is provided by ISC as part of the Services.
Term: Until the end month of your school year from the Effective Date. This end date will be identified on your Profile Page of ISC Insight.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or Data, including the reliability of any programme or Data (whether by re-arranging, altering or erasing the programme or Data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Website: ISC’s platform which contains the Data.
INTERPRETATION
Clause headings shall not affect the interpretation of this Agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. References to Clauses are to the Clauses of this Agreement. Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.
1. APPOINTMENT
1.1 There is no fee payable under this Licence and as such in consideration of ISC providing the Materials via the Website pursuant to the terms set out below, the Client agrees to comply with the terms of this Agreement.
1.2 ISC shall, during the Term, provide access to the Website to You from the Effective Date on and subject to the terms of this Agreement.
1.3 By the Client clicking 'I accept', 'I agree' (or similar button), the Client acknowledges that it has read, understood, and agrees to be bound by this Agreement (the date of such occurrence being the Effective Date). Only the Client shall have access to the Licence.
2. THE LICENCE
2.1 Under this Agreement, ISC grants You a non-exclusive, non-transferable, non-sub licensable and revocable Licence permitting You to access and use the Website.
2.2 Pursuant to this Agreement, any Data:
(a) cannot be altered, copied, forwarded or duplicated in any way and must be overwritten by each successive download;
(b) is for Your use only;
(c) may not be sold or passed on to any third party.
(d) The Website and Data are the property of ISC and any Intellectual Property Rights therein remain the property of ISC at all times.
3. NOT IN USE
4. LICENSEE INFORMATION
4.1 ISC will pass Your details to a third party if the need to do so arises under Data Protection Legislation or other applicable laws.
5. ISC'S RIGHTS AND OBLIGATIONS
5.1 Except as expressly stated in this Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
6. YOUR OBLIGATIONS
6.1 You shall:
(a) comply with the terms and conditions of this Agreement;
(b) not use the Website and Materials for any purpose contrary to any law or regulation or any regulatory code, guidance or request;
6.2 You shall not knowingly access, upload, store, distribute or transmit any Viruses, software or any material during the course of Your use of the Website that:
(a) is protected by intellectual property laws, including copyright or trademark laws (or by rights of privacy or publicity) unless You own or control the rights thereto or have received all necessary consents to do the same;
(b) would prohibit any automatic sign-out system of the Website or part thereof from performing as intended;
(c) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(d) facilitates illegal activity;
(e) depicts sexually explicit images;
(f) promotes unlawful violence;
(g) is discriminatory or incites discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
(h) causes damage or injury to any person or property; and ISC reserves the right, without liability to You, to disable access to any Material that breaches the provisions of this Clause 7.2.
6.3 You shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, reproduce, modify, duplicate, create derivative works from, frame, mirror, publish or republish, download, display, transmit, or distribute all or any portion of the Website or Material (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to humanperceivable form all or any part of the Software.
(b) gain or attempt to gain unauthorised access to the Website, materials not provided by the Website, other accounts, computer systems or networks connected to the Website, through hacking, password mining or any other means;
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Website available to any third party;
(d) use the Website in any manner that could damage, disable, overburden, impair the Website (or the networks connected to the Website), interfere with any other party's use and enjoyment of the Website;
(e) do anything which may knowingly damage the reputation of ISC, Data or the Website;
(f) falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other uploaded material; or
(g) create a false identity for the purpose of misleading others.
6.4 You shall use Your best endeavours to prevent any unauthorised access to, or use of, the Website and, in the event of any such unauthorised access or use, promptly notify ISC.
7. TERM AND TERMINATION
7.1 The Term granted pursuant to this Agreement shall, unless otherwise terminated in accordance with this Clause 8, commence from the Effective Date and continue in force for the Term.
7.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement immediately by written notice and without liability to the otherif:
(a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach. For the avoidance of doubt any breach of Clause 7 shall be considered a material breach of a term of this Agreement; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holders (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way or becomes bankrupt; or
(f) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
7.3 On termination of this Agreement for any reason:
(a) the Licence shall immediately terminate;
(b) You shall make no further use of the Website; and
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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.
8. NOT IN USE
9. NOT IN USE
10. CONFIDENTIALITY
10.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
11. ASSIGNMENT
11.1 Neither party may, without the prior written consent of the other party, assign, transfer nor subcontract any or all of its rights or obligations under this Agreement to a third party.
12. INTELLECTUAL PROPERTY RIGHTS OWNERSHIP
12.1 You acknowledge that during the Agreement and after termination or expiry: ISC Insight 20
(a) all Intellectual Property Rights in the Website, Data and the Materials are the property of ISC or its licensors, as the case may be; and
(b) You shall have no rights in or to the Website, Data or the Materials other than the right to use them in accordance with the express terms of this Agreement, as such You have no right to sell or pass on in anyway the Data or the Materials.
12.2 You shall co-operate with ISC to protect the goodwill and reputation of the Website, Data and Materials.
12.3 You acknowledge that reference in any element of the Website to trade names or proprietary products where no specific acknowledgement of such names or products is made does not imply that such names or products may be regarded by You as free for general use, outside the scope of the use of the Website authorised by this Agreement.
12.4 ISC confirms that it has all the rights in relation to the Website, Data and Materials that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
12.5 You acknowledge and agree that in respect of any third-party Intellectual Property Rights, Your use of any such Intellectual Property Rights is conditional on ISC obtaining a written licence from the relevant licensor on such terms as will entitle ISC to license such rights to You.
13. INTELLECTUAL PROPERTY RIGHTS OBLIGATION
13.1 ISC undertakes to hold You harmless from and against any claim or action that the provision, receipt or use of the Website or Materials (wholly or in part) infringes any UK Intellectual Property Right of a third party (IPR Claim) and shall be responsible for any losses, damages, costs (including all legal fees) and expenses incurred by or awarded against You as a result of, or in connection with, any such IPR Claim, provided that, if any third party makes an IPR Claim, or notifies an intention to make an IPR Claim against You, You shall:
(a) give written notice of the IPR Claim to ISC as soon as reasonably practicable;
(b) not make any admission of liability in relation to the IPR Claim without the prior written consent of ISC;
(c) at ISC's request and expense, allow ISC to conduct the defence of the IPR Claim including settlement; and
(d) at ISC's expense, co-operate and assist to a reasonable extent with ISC's defence of the IPR Claim.
13.2 Clause 14.1 shall not apply where the IPR Claim in question is attributable to:
(a) possession, use, development, modification or retention of Data or Materials (wholly or in part) by You other than in accordance with this Agreement;
(b) Your system or any failure in the connectivity to it;
(c) use of the Data or the Materials (wholly or in part) in combination with any hardware or software not supplied or specified by ISC to the extent that the infringement would have been avoided by the use of Data or the Materials (wholly or in part) not so combined; or
(d) use of Data or Materials (wholly or in part) in combination with any data not supplied or specified by ISC to the extent that the infringement would have been avoided by the use of the Data or Materials (wholly or in part) not so combined.
13.3 If any IPR Claim is made, or in ISC's reasonable opinion is likely to be made, against You, ISC may at its sole option and expense:
(a) procure for You the right to continue the Website (wholly or in part) in accordance with this Agreement;
(b) modify the Website or the Materials (wholly or in part) so that they cease to be infringing; or
(c) replace the Website or the Materials (wholly or in part) with non-infringing items;
13.4 This Clause 14 constitutes Your sole and exclusive remedy and ISC's only liability in respect of IPR Claims and, for the avoidance of doubt, is subject to Clause 15.
14. LIMITATION OF LIABILITY
14.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury caused by negligence;
(c) a breach of any 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 matter in respect of which it would be unlawful for the parties to exclude liability.
14.2 Subject to Clause 15.1 neither Party shall in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for indirect and consequential losses with the exception of Clause 13.1 (b) where royalty payments become due.
14.3 Subject to Clauses 15.1 and 15.2, ISC's total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall in all circumstances be limited £100,000.
15. FORCE MAJEURE
15.1 For the purposes of the Agreement, Force Majeure Event means an event beyond the reasonable control of ISC including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of ISC or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.2 ISC shall not be liable to You as a result of any delay or failure to perform its obligations under the Agreement as a result of a Force Majeure Event.
15.3 If the Force Majeure Event prevents ISC from providing access to the Website for more than four weeks, ISC shall, without limiting its other rights or remedies, have the right to terminate the Agreement immediately by giving written notice to You.
16. NOTICES
16.1 Any notice or other communication required to be given to a party under or in connection with the Agreement shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business. Any notice by You under Clause 17.1 may be given to ISC by email at the following email address: enquiries@iscresearch.com
16.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, if sent by email, at 9:00 am on the first Business Day after sending or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 17, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
16.3 This Clause 17 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. WAIVER
17.1 A waiver of any right under the Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
17.2 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
18. SEVERANCE ISC Insight 20
18.1 If a court or any other competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
18.2 If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19. NO PARTNERSHIP
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
21. THIRD PARTIES
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
22. ENTIRE AGREEMENT AND VARIATION
The Agreement constitutes the entire agreement between the parties. You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of ISC which is not set out in the Agreement.
23. GOVERNING LAW AND JURISDICTION
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, English law, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales.