Updated on: 17 October 2016
Effective from: 17 October 2016
These Terms (defined below) govern your use of Kerboodle (defined below). They override any other terms and conditions found on the Kerboodle website.
In consideration of OUP making Kerboodle available to you, you agree to accept these Terms.
You should print a copy of these Terms or save them to your computer for future reference.
1.1 In these Terms, unless the context otherwise requires, the following expressions shall have the following meanings:
Authorised User means you, the individual who is (as the case may be): (i) a teacher or a member of staff engaged by an Organisation; (ii) a student enrolled at an Organisation; (iii) the Kerboodle administrator (who may be a teacher or member of staff) appointed by an Organisation; or (iv) the Parent of a student enrolled at an Organisation and "the Authorised User" means the relevant Authorised User.
Extended Licence Period means Extended Licence Period as defined in Clause 11.1
Fees mean the relevant Product fees payable by the Organisation to access the Product in question on Kerboodle.
Initial Licence Period means the period set out in the Product Specific Term during which the Product in question is accessible by you.
Intellectual Property Rights mean all patents, rights to inventions, copyright and related rights, trade marks, 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, database right, topography rights, moral rights, rights in confidential information (including knowhow 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 Period means the Initial Licence Period and all Extended Licence Period that relate to the relevant Product in question.
Organisation means a school, college or similar institution or entity engaged in the field of education (“School”) that is granted access to Kerboodle by OUP, and which has purchased a Product or a number of Products from OUP. For the avoidance of doubt, where an organisation consists of a number of individual Schools or an individual School divided into separate branches, or a federation of Schools, each such individual School, individual branch of a School, or individual School within such federation of Schools shall be deemed to be a separate Organisation for the purposes of this Agreement unless otherwise agreed in writing by OUP.
Kerboodle means OUP's Kerboodle learning platform.
OUP, we, us, or our means or mean (as the context requires) Oxford University Press, a department of the University of Oxford whose trading address is Great Clarendon Street, Oxford, OX2 6DP, United Kingdom.
Parent means a parent or guardian of an Authorised User who is a student.
Personal Data means information about an individual person that can identify that individual person (e.g. name, email address or age).
Products mean the OUP products (which may be courses or online books) purchased by an Organisation for the use by its Authorised Users which are accessed and used via Kerboodle, and "the Products" mean the relevant Product(s) purchased by an Organisation which it makes available to the Authorised User.
Product Specific Terms mean the licence and usage terms and conditions relating to a specific Product
Software means the software provided by us or our licensors which enables You to use and access Kerboodle and the Products via Kerboodle.
Terms mean these terms and conditions.
User Materials mean any content and/or materials uploaded onto Kerboodle by You and/or transferred by You to another Authorised User which are not licensed by OUP to you.
You or Your means the Organisation and the Authorised Users unless the context requires otherwise in which case, "You" or "Your" will mean the Organisation.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 Words importing any gender shall include any other gender.
1.4 Words importing the singular number shall include the plural number and vice versa including the definitions referred to in Clause 1.1 hereof.
1.5 Where any word or expression is defined in these Terms, the definition shall extend to all grammatical variations and cognate expressions of the word or expression so defined.
1.6 All references to provisions of statutes include such provisions as amended, modified or re-enacted.
1.7 The Organisation shall procure that each and every one of its Authorised Users complies with these Terms. The Organisation shall be liable for any breach of these Terms by its Authorised Users as though the breach was committed by the Organisation.
2.1 In consideration of the Fees paid by the Organisation to OUP, OUP grants to You, a non-exclusive licence to access and use the Product(s) via Kerboodle during the Licence Period. In this regard, You are entitled to use the Software (in object code form) to access the Products and to use Kerboodle as part of the Organisation's internal teaching tools and teaching resources.
2.2 Notwithstanding Clause 2.1, You must not:
2.2.1 sub-license or assign the benefit or burden of the licence set out in Clause 2.1 in whole or in part to anyone;
2.2.2 attempt to duplicate, modify, disclose or distribute any portion of the Software;
2.2.3 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as is allowed by any applicable law which is incapable of exclusion by agreement between OUP and you;
2.2.4 transfer, temporarily or permanently, any rights or obligations under these Terms; or
2.2.5 attempt to obtain, or assist others in obtaining access to the Kerboodle, the Software, and the Products other than as provided under Clause 2.
2.3 You grant and You shall procure that Your licensors' grant to OUP, a perpetual, irrevocable, non-exclusive, sub-licensable licence to use Your User Materials for OUP's business purposes including the right to host Your User Materials for You. The foregoing licence includes the right to make copies of Your User Materials, issue copies of User Materials, rent or lend Your User Materials, perform, show or play Your User Materials in public (including over the internet), communicate Your User Materials, and to adapt Your User Materials. In addition, You irrevocably and unconditionally waive in favour of OUP, all moral rights conferred on You by Chapter IV, Part 1, Copyright Designs and Patents Act 1988 and any other moral rights provided for under the laws now or in force in any part of the world for all Your User Materials which You licence to OUP. For the avoidance of doubt, this Clause 2.3 shall remain in force even after Your access to Kerboodle and/or the Products has ceased for any reason.
3 ACCESSING KERBOODLE AND YOUR PRODUCTS
3.1 You acknowledge that You will only be able to access the Products on Kerboodle during relevant Licence Periods for the Products in question and that Your access and use of each of the Products will be governed by the Product Specific Terms which relate to that Product. Without prejudice to the foregoing, You must not:
3.1.1 systematically make printed or electronic copies of content and/or materials in any Products for any purpose in either print or electronic format;
3.1.2 remove or alter the copyright notices or other means of identification or disclaimers as they appear in any of the Products;
3.1.3 display or distribute any part of the Products on any electronic network, including without limitation the Internet and the World Wide Web, where access is possible by anyone not an Authorised User
3.1.4 permit anyone other than the Authorised Users to access or use any of the Products including any content and material making up those Products; and/or
3.1.5 use all or any part of the Products for any commercial use other than as teaching and learning resources within the Organisation.
3.2 If you are purchasing any Products on behalf of your Organisation, you warrant that you have the authority to do so and agree to the Product Specific Terms on behalf of your Organisation.
3.3 Unless your Organisation has appointed you as its administrator for Kerboodle, your Organisation will need to appoint you as its Authorised User by creating a user account for you before you can access Kerboodle.
3.4 To access and use the Products, You will need to log into Your Kerboodle account using Your username (which Your Organisation will provide to You) and select a password, and You should find Your Products listed on Your "user homepage".
3.5 Subject to earlier termination pursuant to these Terms, Your access to Kerboodle will cease when the Licence Period of Your final remaining "live" Product expires.
3.6 If You are:
3.6.1 the administrator for Kerboodle at Your Organisation, You agree that You will only create teacher user accounts for teachers at Your Organisation and You must not create teacher user accounts for students;
3.6.2 a student, you must not use a teacher user account; and
3.6.3 an Organisation, You agree to procure that only teachers will have access to teacher user accounts and You will only create users accounts for teachers and students at Your Organisation.
4 YOUR OBLIGATIONS
4.1 The Organisation is responsible for the selection of the Products it purchases and whether such Products meet its and its Authorised Users requirements.
4.2 You agree not to make available Your username and/or password to anyone. If there has been a disclosure of Your username and/or password, You agree to notify us promptly of such disclosure, so that we can take appropriate security measures.
4.3 You undertake not to upload any User Materials onto Kerboodle or send and/or transmit to other Authorised Users, any content which is illegal, obscene, threatening, defamatory, discriminatory, promote illegal or unlawful activity, or be otherwise actionable or in violation of any rules, Intellectual Property Rights, regulations or laws to which such content is subject.
4.4 You are solely responsible for the accuracy, legality, and compliance with the relevant laws and regulations in respect of the content which You send to other Authorised Users and/or the User Materials that You upload onto Kerboodle. You acknowledge that we do not operate or exercise control over, and accepts no responsibility for the User Materials which You upload onto Kerboodle or transfer through Kerboodle.
4.5 If we suspect that a breach of Clauses 4.3, 4.4, 4.8, 4.10 and 8.3 have occurred or is likely to occur, we may, without giving notice and liability to You, remove Your User Materials and/or suspend Your access to Kerboodle and/or Your Products.
4.6 If You are a teacher or an Organisation, You acknowledge that You are solely responsible for the appropriate use and adaptation of the Products for the use by Your student users.
4.7 You agree that You will promptly notify us of any errors or inaccuracies which relate to the Products . In this regards, please contact us using the "Contact us" page.
4.8 You must not spam, download or upload excessive volume of content onto Kerboodle such that it may impair the performance of Kerboodle. You must not introduce any malicious codes or harmful element e.g. virus and Trojans onto Kerboodle.
4.9 Unless otherwise agreed in writing by OUP, You are solely responsible for configuring Your computer devices in order to access Kerboodle and the Products, and to provide for Your own virus protection software. To access Kerboodle and the Products, Your computer device must meet the specification detailed here.
4.10 You warrant that any Personal Data which You provide to OUP complies fully with all relevant data protection laws including the Data Protection Act 1998 and You agree to indemnify and keep OUP indemnified against breach by You of such data protection laws.
4.11 The Organisation agrees to indemnify and keep us indemnified for any losses, damages, fines arising from or which are connected to any breach by it and/or its Authorised Users of Clauses 4.3, 4.4, 4.8, 4.10 and 8.3.
5 OUR OBLIGATIONS
5.1 We will:
5.1.1 use all reasonable endeavours to ensure that Your Products and User Materials are accessible on Kerboodle;
5.1.2 provide the Organisation with the ability to create usernames and passwords for its Authorised Users;
5.1.3 (if we have agreed to do so in writing) provide You with training and help notes on how to use Kerboodle; and
5.1.4 allow You to upload User Materials onto Kerboodle in respect of each Product during the relevant Licence Period. However, there are limits as to the amount of space available for each Product and those limits are set out in the Product Specific Terms.
6 WITHDRAWAL OF PRODUCTS
6.1 We reserve the right at any time to withdraw a Product including any components within a Product (e.g. an activity or chapters from an online book) for any reason including:
6.1.1 if we no longer retain the right to publish such material; or
6.1.2 if in our sole discretion, we believe that such material may infringe the Intellectual Property Rights of third parties or is defamatory, obscene, unlawful or otherwise objectionable.
In the circumstances above, we shall notify the Organisation of such withdrawal as soon as reasonably practicable.
6.2 On receipt of the notice referred to in Clause 6.1, the Organisation shall promptly inform its Authorised Users and You agree to immediately cease all use of the withdrawn material and shall comply with our instructions with respect to the deletion and/or removal of such withdrawn material.
7 DATA PROTECTION AND PRIVACY
7.1 In the course of You accessing Kerboodle and the Products, and us complying with our obligations to You, it is necessary for You to provide to us and for us to collect and process Personal Data (e.g. name, email address and year group) from You.
7.4 To the extent that we process any Personal Data for the Organisation, we will process that Personal Data in accordance with the Organisation’s reasonable instructions which are compatible with our carrying out our obligations under these Terms and we will take such organisational and technical measures against the unauthorised or unlawful processing of that Personal Data and against accidental loss or destruction of, or damage to, that Personal Data as we take from time to time in relation to Personal Data which we process for our own purposes.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 As between You and OUP, You acknowledge that OUP and/or OUP’s licensors own all Intellectual Property Rights in Kerboodle, the Software and the Products. Except as expressly stated in these Terms and the Product Specific Terms, OUP does not grant You any rights to or in any Intellectual Property Rights or any other rights or licences.
8.2 You warrant that the User Materials and any use by OUP of the User Materials under Clause 2.3 will not infringe the Intellectual Property Rights of any third parties.
8.3 If You become aware of any Intellectual Property Rights infringement or potential Intellectual Property Rights Infringement involving Kerboodle, the Software and/or the Products (e.g. an unauthorised third party is using Kerboodle or if You get a letter from a third party stating that the Software infringes such third party's Intellectual Property Rights) You must inform us promptly. We will:
8.3.1 in our absolute discretion, determine what action if any shall be taken in respect of the matter;
8.3.2 have sole control over and shall conduct any action as we deem necessary; and
8.3.3 pay all costs in connection with that action and we shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action. You agree to (at our cost) provide us with any assistance which we may request.
8.4 In the defence or settlement of a claim that Kerboodle, the Software and/or the Products infringe third party Intellectual Property Rights ('Infringing Items'), we may at our discretion:
8.4.1 obtain for You the right to continue using the Infringing Items;
8.4.2 replace or modify the Infringing Items with equivalent items so that they become non-infringing; or
8.4.3 if such remedies are not reasonably available, withdraw the Infringing Items and we will refund any of the Fees paid by the Organisation (less a reasonable sum in respect of the Organisation's and its Authorised Users' use of the Infringing Items).
8.5 Clauses 8.3 and 8.4 set out Your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement of Intellectual Property Rights.
9.1 Subject to the other provisions in these Terms and to our right to carry out scheduled maintenance, during the period when You have access to Kerboodle, we warrant to the Organisation that we will use reasonable endeavours to ensure that Kerboodle is available to the Organisation.
9.2 We do not warrant that the use of Kerboodle and/or the Products will be uninterrupted or error-free. We may also carry out scheduled maintenance from time to time.
9.3 The Organisation accepts responsibility for the selection of Kerboodle and the Products to achieve its intended results.
9.4 Except as expressly stated in these Terms, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Kerboodle, the Products and the Software which might otherwise be implied into, or incorporated in, these Terms whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
10.1 This Clause 10 sets out the entire financial liability of OUP (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to You including those arising from breach of contract, use made by You of Kerboodle, the Software and/or the Products, and representation, statement or tortuous act or omission (including negligence) arising under or in connection with Your use of Kerboodle, the Software and/or the Products.
10.2 Nothing in these Terms excludes our liability for death or personal injury caused by our negligence; or for fraud or fraudulent misrepresentation.
10.3 Subject to Clause 10.2 we shall not be liable to You for any:
10.3.1 indirect, consequential and/or special loss or damage;
10.3.2 loss of profit (direct or indirect);
10.3.3 loss of revenue, loss of teaching time or loss of business (in each case whether direct or indirect);
10.3.4 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct or indirect);
10.3.5 loss of anticipated saving or loss of margin (in each case whether direct or indirect);
10.3.6 wasted management, operational or other time (in each case whether direct or indirect);
10.3.7 loss or corruption of any data, content and/or material (in each case, whether direct or indirect);
10.3.8 loss or damage arising out of any failure by us to keep full and up to date back-ups and security copies of any User Materials; and/or
10.3.9 liability of any of the other parties to third parties (whether direct or indirect),
arising out of or in connection with these Terms and/or in connection with Your use of Kerboodle, the Software and/or the Products, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including (without limitation) by negligence and also including (without limitation) any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of our obligations under these Terms.
10.4 Subject only to Clause 10.2 but without prejudice to Clause 10.3, our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the Fees paid You to us during the 12 months preceding the date on which the claim arose or £5000 (whichever higher). You acknowledge that this limitation is reasonable.
10.5 As Products are purchased by the Organisation and made available by the Organisation to its Authorised Users, you as an Authorised User of your Organisation, irrevocably agree not to bring or threaten to bring any claims or proceedings directly against OUP. Any claims, proceedings, problems, dissatisfaction or issues which you have should be brought or raised directly with your Organisation. If any Authorised Users bring or threaten to bring any claims or proceedings against OUP, the Organisation shall indemnify and keep OUP indemnified against any costs, losses, damage and/or expenses incurred by OUP.
11 TERM AND TERMINATION
11.1 Unless expressly stated otherwise in the relevant Product Specific Terms, you agree that the licence to access any Product shall automatically extend for a period of 12 months ("Extended Licence Period") at the end of the Initial Licence Period and at the end of each Extended Licence Period, unless either party gives notice to the other party, not later than 7 days before the end of the Initial Licence Period or the relevant Extended Licence Period (as the case may be), to terminate such licence.
11.2 Without prejudice to any rights which have accrued under these Terms, You or OUP may terminate these Terms if the other party:
11.2.1 is in material breach of any of its obligation under these Terms and if such breach is remediable, fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
11.2.2 is made bankrupt, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if the other party ceases or threatens to cease to trade, or if the other party makes an assignment for the benefit of, or a composition with its creditors or other arrangement of similar import or has a receiver, administrative receiver, administrator or a similar officer appointed over all or a substantial part of its assets, or if a petition is passed or an order is made by a court of competent jurisdiction or resolution is passed for the winding up of the other party (other than for the purpose of a bona fide solvent reconstruction or amalgamation) or any similar circumstances arise in any jurisdiction.
12 EFFECT OF TERMINATION
12.1 On expiry or termination of these Terms or Your right to use Kerboodle for any reason and subject to any express provisions set out elsewhere in these Terms:
12.1.1 all outstanding sums payable by the Organisation to OUP shall immediately become due and payable;
12.1.2 all rights and licences granted to You to use the Software and Kerboodle to these Terms shall cease; and
12.1.3 You shall, return and/or destroy all copies of the Products and content made available by OUP to You on Kerboodle as may be advised by OUP to You. If requested by OUP, the Organisation will certify to OUP that this obligation has been complied with by it and its Authorised Users.
12.2 The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
12.3 If your access to a Product ceases (e.g. the Licence Period has expired), You will no longer be able to access that Product and/or Your User Materials that are associated to that Product. OUP reserves the right to delete Your User Materials which relate to that Product after 90 days from the date when You cease to have access to the Product in question.
13 FORCE MAJEURE
13.1 We will have no liability to You if we are prevented from, or are delayed in performing our obligations due to any circumstances and/or reasons which are outside of our control. These circumstances and reasons include strikes, lock-outs or other industrial disputes (whether involving the workforce of OUP 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, sanctions, accident, breakdown of plant or machinery, fire, flood, storm, default of suppliers or subcontractors and/or non-performance of any services by OUP's suppliers, banks or subcontractors.
14.1 If You are unable to access Kerboodle, You must first ascertain whether the inability to access Kerboodle is caused by a failure on the part of Your device. If the fault lies with Kerboodle and not Your device, You must:
14.1.1 where You are an Authorised User which is not an administrator, inform Your administrator immediately and Your administrator will notify OUP; and
14.1.2 where You are an administrator Authorised User, contact OUP promptly using the
School Orders team
North Kettering Business Park
Primary: +44 (0) 1536 452610
Secondary: +44 (0) 1536 452620
14.2 Upon receiving Your administrator's report, OUP shall use reasonable endeavours to resolve and rectify the problem to allow You to access Kerboodle.
14.3 Where it is subsequently established that the fault does not lie with Kerboodle but with Your device or Your internet services, we reserve the right to charge the Organisation a reasonable administrative fee.
15.1 All notices to be given under these Terms shall be in writing and shall either be delivered personally or sent by courier and shall be deemed duly served:
15.1.1 in the case of a notice delivered personally, at the time the same is left at the address of, or handed to a representative of, the party to be served; and
15.1.2 in the case of courier, two clear business days after the date of despatch.
16 GENERAL PROVISIONS
16.1 These Terms constitutes the whole agreement between OUP and You and supersedes all previous agreements between OUP and You relating to Your use of Kerboodle. Nothing in these Terms shall limit or exclude any liability for fraud.
16.2 We may amend these Terms from time to time. If we have to revise these Terms, we will give You at least one month's written notice of any changes to these Terms before they take effect. If You do not wish to accept the changes, You can choose to cancel the contract in respect of the Products affected by the change to these Terms and we will refund You any portion of the Fees paid by You (less a reasonable sum in respect of the Organisation's and its Authorised Users' use of the Product purchased by the Organisation).
16.3 A waiver of any right under these Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
16.4 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.5 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.6 To the extent that it is applicable and legally enforceable, in the event of any inconsistencies between the provisions set out in these Terms and those in the terms and conditions governing the purchase of the Products from OUP, the parties agree that the provisions in these Terms will prevail.
17 GOVERNING LAW AND JURISDICTION
17.1 These Terms and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
17.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and/or Your use of Kerboodle and the Software.
17.3 Notwithstanding Clauses 17.1 and 17.2, nothing in these Terms shall limit the right of OUP to take proceedings against You in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
17.4 Without prejudice to clauses 17.1 to 17.3, if you are a consumer (i.e. you are not (i) an organisation; or (ii) an individual acting wholly or mainly within your trade, business craft or profession) located in the European Union and a dispute arises between you and OUP, we strongly encourage you to get in touch with us directly first to seek a resolution by contacting firstname.lastname@example.org. If the dispute cannot be resolved between you and OUP, we will consider your reasonable request to resolve the dispute through an alternative dispute resolution process (“ADR”). ADR is a process where an independent body considers the facts of a dispute and seeks to resolve it, without having to go to court. If we agree to using an ADR process, you can submit your complaint to the Centre for Effective Dispute Resolution via its website http://www.cedr.com/ or http://ec.europa.eu/consumers/odr/. You should not submit your complaint until you have received notice from us in writing (and this could be an email) that we have agreed to resolve your complaint via ADR.