GCSEPOD – STANDARD LICENCE TERMS FOR EDUCATIONAL ESTABLISHMENTS
Date the modified Terms and Conditions take effect: 1st March 2022
Pursuant to clause 19 of the standard licence terms (found below) which governed your use of the software made available by us (the Services) up until the date detailed above, we have modified the terms and conditions that will apply to the Services going forward. Your continued use of the Services after the date listed above will be your acceptance of the modified terms.
As of the date referred to above, the modified terms and conditions that will govern the use of the service provision from us to you going forward shall be: Access Standard Terms and Conditions
For the avoidance of doubt (and for the benefit of Schedule 3), the service provision you’re in receipt of is SaaS. Further, the Initial Term is as detailed on your most recent invoice, there will be no Further Term (i.e., as agreed, the Agreement will terminate at expiry of the Initial Term, unless the parties mutually agree otherwise).
Lastly, we will use reasonable commercial efforts to continue to provide you with the same level of support you receive as of 28th February 2022; we do however reserve the right to amend the support plan with notice to you (email shall suffice), where an uplift in fees may apply
Legacy Standard Licence Terms, not applicable as of 1st March 2022 but retained for reference.
- The first time a definition is used in this licence it is in bold type. Definitions are set out at condition 20.
- The gcsepod products and gcsepod website are owned by Soundbitelearning UK Limited. We are a limited company registered in England and Wales under company number 05921961 and have our registered office at Newcastle Enterprise Centres, 6 Charlotte Square, Newcastle upon Tyne, Tyne and Wear, England NE1 4XF, which is also our trading address. Our VAT number is 916 2467 21.
- These termstogether with the order form and any special terms (the licence) set out the basis on which you may make use of gcsepod.
- Please read the licence carefully before you start to use gcsepod. By using gcsepod, you indicate that you accept the licence and that you agree to abide by it. If you do not agree to the licence, you may not use gcsepod.
- Grant and scope of licence
- In consideration of payment by you of the licence fee, and subject to you agreeing to the restrictions in condition 3 and the other terms of the licence, we hereby grant to you a non-exclusive, non-transferable licence to use gcsepod in your country for the term.
- You may, during the term:
- permit usersto log in and watch gcsepod content from school/college or home for your establishment’s internal educational and non-commercial purposes;
- permit users, within the restrictions set out at condition 3 and condition 8 below, to download material from gcsepod (gcsepod downloads) to computers, iPods or other similar portable mobile devices;
- permit users to use any other gcsepod products in accordance with the applicable special terms; and
- benefit from any updatesto gcsepod we may provide from time to time.
- Your obligations
- You shall:
- ensure that you complete the order form accurately;
- ensure that the person signing the order form is authorised by the establishment’s senior management or other appropriate body to enter this licence on your behalf;
- keep an accurate and up-to-date record throughout the term of:
- the users that you authorise to use gcsepod;
- remote usersand the remote access use made by them of gcsepod; and
- registered users, which gcsepod content they download, and the time/date of those gcsepod downloads
- expressly prohibit registered users from sharing their logins;
- require registered users to select a secure password which they change when reasonably requested by us or by you, and which they keep secure and confidential;
- keep gcsepod downloads secure from unauthorised access;
- keep all copyright notices including where practical our copyright disclaimer on all gcespod downloads
- supervise and control the use of gcsepod to ensure it is used in accordance with the licence; and
- enter into a data sharing agreement with us, which shall form part of this licence.
- You shall not:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of gcsepod in any form or media or by any means, except to the extent expressly permitted by this licence or which must be allowed by law; or
- download gcsepod content and place it on your establishment’s VLE, Intranet, website or any other media from which students or staff can download directly, except with our express written permission; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of gcsepod except to the extent which must be allowed by law; or
- access all or any part of gcsepod in order to build a product or service which competes with gcsepod; or
- use gcsepod for the benefit of any third party, including any associated body; or
- subject to condition 12, license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make gcsepod available to any third party except your users.
- You shall use all reasonable endeavours to prevent any unauthorised access to or use of gcsepod and, in the event of any unauthorised access or use, promptly notify us.
- Your rights under condition 2 are granted to you, and not to any associated body.
- Acceptable use of the gcsepod website
- You must not misuse the gcsepod website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to gcsepod, the server on which gcsepod is stored or any server, computer or database connected to the gcsepod website. You must not attack the gcsepod website via a denial-of-service attack or a distributed denial-of service attack. By breaching this condition, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them and the identity of your users. In the event of such a breach, your right to use gcsepod will cease immediately.
- You may link to the gcsepod website home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The gcsepod website must not be framed on any other site, nor publicly available, publicly visible or publicly accessible, nor may you create a link to any part of the gcsepod website other than the login page. We reserve the right to withdraw linking permission without notice.
- Charges and payment
- You shall pay the licence fee within 14 (fourteen) days from receipt of a sales invoice from us.
- The licence fee is:
- payable in pounds sterling;
- subject to condition 5.3, non-cancellable and non-refundable; and
- exclusive of value added tax, which shall be added to our invoice at the appropriate rate.
- A refund will only be made if we either reject your order form and refuse to grant you a licence or if a court finds we are liable to pay damages to you as a result of being in material breach of the licence as set out in condition 3.1.
- Services and support
- Following our acceptance of the order form and agreement with you of any special terms, we shall set up and make gcsepod available to you on and subject to the terms of the licence during the term.
- We shall use commercially reasonable endeavours to make gcsepod available 24 (twenty four) hours a day, 7 (seven) days a week, except for:
- planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time during term time or at any time during school holidays;
- unscheduled maintenance performed outside normal business hours, provided that we use reasonable endeavours to give you at least 6 (six) normal business hours’ notice in advance.
- We will, as part of gcsepod and at no additional cost to you, provide you with gcsepod standard support. Our support staff will endeavour to answer by telephone any queries which you have regarding the use of gcsepod. For telephone support please call 0191 2111 999 during normal business hours. Outside normal business hours, you may use our online FAQs or may email email@example.com.
- You will ensure that your content and your and users’ use of content will not breach the AUP or any applicable law. You are solely responsible for the development, content, uploading, downloading, deletion and sharing of assessments, storage of assessments on your own and users’ devices and for your own and your users’ use of assessments. You will ensure that you and your users stay within the storage limit on your use of the assessment area and only upload assessments in the formats we permit.
- You must ensure all your content is checked by an up-to-date, good quality, anti-virus checker before it is uploaded to the assessment area.
- You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this licence or the assessment area. You are responsible for users’ creation, copying and use of content. You will ensure that all users comply with your obligations under this licence relating to assessments. If you become aware of any breach of your obligations under this licence relating to assessments which is caused by a user, you must tell us immediately and require that user to stop accessing the assessment area.
- We may suspend your or any user’s right to access or use any portion or all of the assessment area immediately upon notice to you if we determine your or a user’s use of the assessment area (i) poses a security risk, (ii) could adversely impact our systems, or the systems or content of any other third party, (iii) could subject us or any third party to liability, or (iv) could be fraudulent.
- Except as described in this condition 7, we obtain no rights under this licence from you (or your licensors) to your content. You consent to our use of your content to provide the assessment area to you and your users. Insofar as any content is personal data, our processing of that personal data will be subject to the terms of the data sharing agreement.
- The assessment area may include content uploaded by other educational establishments. We do not verify or approve or endorse your content or their content.
- You will defend, indemnify, and hold harmless us and our third party suppliers, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to any third-party claim concerning: (a) your or any user’s use of the assessment area (including any activities under your account); (b) breach of this licence or breach of applicable law by you, your users or your content; or (c) a dispute between you and any user. You will reimburse us for our reasonable legal fees, as well as our employees’ and contractors’ time and materials spent responding to any legal order or process associated with third party claims described in (a) to (c) above at our then-current hourly rates.
- Our intellectual property rights
- GCSEPOD is a UK registered trade mark of Soundbitelearning UK Limited (trade mark registered number 2489508).
- You acknowledge that the copyright, database rights and all other intellectual property rights in gcsepod anywhere in the world belong to us or our licensors, that rights in gcsepod are licensed (not sold) to you, and that you have no rights in, or to, gcsepod other than the right to use it in accordance with the licence.
- You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way from gcsepod, unless they are designed to be modified (e.g. departmental posters) and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
- Our status (and that of any identified contributors) as the authors of content within gcsepod must always be acknowledged.
- Limitation of liability and on gcsepod
- The content of gcsepod is provided without any guarantees, conditions or warranties as to its effect on grades achieved or otherwise. To the extent permitted by law, we, other members of our group of companies and third parties connected to us hereby expressly exclude:
- all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; and
- any liability for any direct, indirect or consequential loss or damage incurred by any user in connection with gcsepod or in connection with the use, inability to use, or results of the use of gcsepod, the gcsepod website, any websites linked to it and any content contained in it, including:
- loss of income or revenue;
- loss of business;
- loss of profits or contracts;
- loss of anticipated savings;
- loss of data;
- loss of goodwill; and
- wasted management or office time
whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to your tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.
- Condition 1 does not affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under applicable law.
- Subject to conditions 1 and 9.2, our maximum aggregate liability under or in connection with the licence, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the licence fee.
- Subject to conditions 9.1, 9.2 and 9.3, our liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in England and Wales.
- Limitations on gcsepod
- You acknowledge and agree that gcsepod has the following limitations:
- the purpose of gcsepod is to assist students studying for GCSEs and using gcsepod does not guarantee that an 4-9 grade at GCSE will be achieved;
- commentary and other materials in gcsepod are not intended to amount to advice on which reliance should be placed; we therefore disclaim all liability and responsibility arising from any reliance placed on those materials by any user of gcsepod, or by anyone who may be informed of any of its contents;
- we aim to update gcsepod regularly, and may change the content at any time;
- we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of gcsepod or to your or your users’ uploading or downloading of any content from the assessment area, or your downloading of any material from the gcsepod website, or from any website linked to it; and
- where the gcsepod website contains links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
- Duration and termination
- The licence shall start on the date specified on the invoice and shall, unless terminated under this condition, continue for the fixed term, or, if we have agreed that you may have an evaluation licence, for the period of that evaluation licence, followed immediately by the fixed term (the term). We may agree between us to renew the licence for a further period at the end of the term. PLEASE NOTEthat if you do not delete the gcsepod downloads after expiry of the term as required under condition 11.4.4, the licence will automatically renew for a further 12 (twelve) month period and you will be liable to pay a further licence fee for that period at our standard 1-year rate in force at the time. If the licence is renewed, the term shall include that renewal period as well as the initial fixed term and any evaluation licence period.
- We may terminate the licence immediately by written notice to you if:
- you breach condition 3.2.2 or the AUP (and before that, we may suspend your licence without notice); or
- our relationship with a third party supplier who provides software or other technology we use to provide gcsepod expires, terminates or requires us to change the way we provide the software or other technology as part of the gcsepod (and before that, we may suspend your licence in respect of gcsepod or the affected part of gcsepod); or
- we or our third party supplier needs to do so in order to comply with the law or requests of governmental entities; or
- you commit a material or persistent breach of the licence which you fail to remedy (if remediable) within 30 (thirty) days after the service of written notice requiring you to do so; or
- the establishment is permanently closed or is merged with another establishment.
- You may terminate the licence immediately by written notice to us if:
- we commit a material or persistent breach of the licence which we fail to remedy (if remediable) within 30 (thirty) days after the service of written notice requiring us to do so; or
- we suffer an insolvency event, meaning that we become insolvent or unable to pay our debts (within the meaning of section 123 of the Insolvency Act 1986), enter into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), pass a resolution for our winding-up, have a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of our assets, make any composition or arrangement with our creditors or take or suffer any similar action in consequence of our debt.
- On expiry of the licence or termination for any reason:
- all rights granted to you under the licence shall cease;
- you must cease all activities authorised by the licence but may keep any school library devicesin accordance with applicable special terms; you must delete any gcsepod content held on the devices;
- you must pay immediately any sums due to us under the licence; you will be entitled to a refund only in the limited circumstances set out in condition 5.3; and
- you must delete immediately all gcsepod downloads from all computer equipment and mobile devices controlled by you and email all users that have downloaded content from gcsepod requiring them to delete all copies of gcsepod downloads they have made and certify to us that you and they have done so.
- Transfer of rights and obligations
- The licence is binding on you and us, and on our respective successors and assigns.
- You may not transfer, assign, charge or otherwise dispose of your licence, or any of your rights or obligations arising under it, without our prior written consent.
- We may transfer, assign, charge, sub-contract or otherwise dispose of these this licence, or any of our rights or obligations arising under it, at any time during the term of the licence.
- Third party rights
No one other than a party to this licence, its successors and permitted assignees, shall have any right to enforce any of its terms.
- All notices given by you to us must be given to Soundbitelearning UK Limited at our registered address or firstname.lastname@example.org. We may give notice to you at either the e-mail or postal address you provided to us when purchasing gcsepod.
- Notice will be deemed received and properly served immediately 24 (twenty-four) hours after an email is sent, or 2 (two) working days after the date of posting of any letter.
- In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an email, that the email was sent to the specified email address of the addressee.
- Events outside our control
- We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the licence that is caused by events outside our reasonable control (force majeure event).
- A force majeure event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
- strikes, lock-outs or other industrial action;
- civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
- fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
- it is impossible to use railways, shipping, aircraft, motor transport or other means of public or private transport;
- it is impossible to use public or private telecommunications networks; or
- the acts, decrees, legislation, regulations or restrictions of any government.
- Our obligations to provide gcsepod under the licence will be suspended for the period that the force majeure event continues, and we will have an extension of time for performance of our obligations for the duration of that period. We will use our reasonable endeavours to bring the force majeure event to a close or to find a solution by which our obligations under this licence may be performed despite the force majeure event.
- If we fail, at any time during the term of the licence, to insist on strict performance of any of your obligations under the licence, or if we fail to exercise any of the rights or remedies to which we are entitled under the licence, this shall not constitute a waiver of those rights or remedies and shall not relieve you from compliance with your obligations.
- A waiver by us of any default shall not constitute a waiver of any subsequent default.
- No waiver by us of any of these terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any condition (or part condition) of the licence is determined by any competent authority to be invalid, unlawful or unenforceable to any extent, that condition (or part condition) will to that extent be severed from the remaining conditions which will continue to be valid to the fullest extent permitted by law.
- Entire agreement
- The licence, together with the data sharing agreement, constitutes the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of gcsepod.
- We each acknowledge that, in entering into the licence, neither of us relies on any statement, representation, assurance or warranty (representation) of any person (whether a party to the licence or not) other than as expressly set out in the licence.
- Each of us agrees that the only rights and remedies available to us arising out of or in connection with a representation shall be for breach of contract as provided in the licence.
- Nothing in this condition shall limit or exclude any liability for fraud.
We may modify this licence (including the AUP) at any time by posting a revised version on the gcsepod website or by otherwise notifying you in accordance with condition 14. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use gcsepod after the effective date of any modifications to this licence, you agree to be bound by the modified terms. It is your responsibility to check the gcsepod website regularly for modifications to this licence. We last modified this licence on the date listed at the end of this licence.
- Definitions and interpretation
- The definitions and rules of interpretation in this condition apply in this licence, unless the context otherwise requires.
|assessment||an assessment produced by a teacher user (including content), for completion by a student user, and/or an assessment completed by a student user (including content)|
|assessments area||an area in gcsepod where teacher users may upload assessments and student users may download those assessment, and upload completed assessments|
|associated body||any subsidiary or holding company or contractor of yours, any local education authority, or any other schools, colleges or other educational establishment, whether federated or otherwise associated with you in any way|
|AUP||the acceptable use policy for use of the assessment area and for content in or accompanying an assessment, being a policy posted in the assessment area or notified to you or your users by any means, including in pop-ups in gcsepod or on the gcsepod website or by email|
|content||the images, documents (Word/PDF), links and MP3 files as well as any other data, text, audio, video or images content we permit you to upload from time to time in an assessment or accompanying an assessment and ‘your content’ means any content that you or any user transfers to us for processing, storage or hosting in the assessment area|
|data sharing agreement||the data sharing agreement between us relating to the processing of data in connection with gcsepod|
|evaluation licence||a free licence to evaluate gcsepod for such period and on such special terms as we stipulate|
|fixed term||the fixed term (of 1 year, 2 years or 3 years) that you select on the order form|
|force majeure event||is defined in condition 15.1|
|gcsepod||our gcsepod products described on and available from the gcsepod website (or direct from us in the case of the school library iPod licence), including assessments|
|gcsepod downloads||downloads of content from gcsepod, excluding assessments|
|gcsepod website||any webpage and/or associated functionality which may be accessed via the domain *.gcsepod.com (or such other address as we notify to you from time to time)|
|insolvency event||is defined in condition 11.3.2|
|licence||the licence to you of gcsepod comprising the terms, the order form and any special terms|
|licence fee||the licence fee for the fixed term|
|login page||the page to which users will be directed to enable them to register or sign into their educational establishment account.|
|normal business hours||the hours of 9 am to 5 pm Monday to Friday (excluding bank holidays)|
|order form||your completed gcsepod order form which we have accepted|
|registered user||a user that registers to download content from gcsepod|
|remote user||a user with remote access to gcsepod|
|representation||is defined in condition 18.2|
|school library device||an iPod or similar mobile device pre-loaded with gcsepod content for loan from your school library|
|special terms||special terms agreed between us for the supply of non-standard gcsepod products including an evaluation licence, an individual subject streaming licence or a school library device|
|term||the duration of the licence, defined in condition 11.2|
|terms||these standard licence terms|
|updates||additions or changes to the current library of our gcsepod content to reflect new content included in either current or new UK examination board specifications|
|user||any of your teachers or students which you have authorised to use gcsepod|
|we||Soundbitelearning UK Limited, company number 05921961|
|you / the establishment||the school or college or other educational establishment named on the order form.|
- References to conditions are to the conditions of the licence.
- Condition headings shall not affect the interpretation of the licence.
- References to the singular includes the plural and vice versa.
- A reference to any party shall include that party’s personal representatives, successors and permitted assigns.
- Any obligation on a party not to do something includes an obligation to not to allow that thing to be done.
- Any words following the terms including, include, in particular 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.
- Law and jurisdiction
The licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and we each submit to the non-exclusive jurisdiction of the courts of England and Wales.
Last modified: 16-Feb-21