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Dynamic Learning
1. INTERPRETATION
1.1 In these Terms, unless the context requires otherwise, the following expressions have the following meanings:
"Licensee", "You" and "Your": the school or institution entering into this Licence Agreement.
"Licensor": Hodder Education, Carmelite House, 50 Victoria Embankment, London, EC4Y 0DZ
"Authorised User": (a) every member of staff currently employed by the Licensee and (b) every student of the Licensee.
"Licensed Material": the material available for access on the Internet at the URL http://www.dynamic-learning.co.uk, or derivatives thereof, from time to time together with any additional material that the Licensor makes available to the Licensee.
"Lesson Builder": the online tool provided by the Licensor allowing the Licensee to upload material to the Hodder Education servers.
“Test and Assess”: the online service provided by the Licensor allowing users to take assessments and track results. 
"Term": the subscription period for which the Licensee has purchased a licence to access the Licensed Material.
"Licence Fee": the fees payable by the Licensee for access to the Licensed Material. 
"Commencement Date": the date The Licensor issues the Licensee an invoice in respect of the Licence Fee and the subscription period (the Term) begins.
 
1.2 This Agreement, together with the Licensor's privacy policy, contains the entire agreement and undertaking between the parties relating to the Licensed Material and supersedes any prior agreement.
 
1.3 The termination of this Agreement shall not prejudice the rights and remedies of either party against the other in respect of any prior breach of covenant, terms, warranty or condition.
 
1.4 The failure of any party to enforce any provision of this Agreement on any one occasion shall not affect its right to enforce another provision or the same provision on another occasion.
 
1.5 Nothing contained in this Agreement shall constitute or shall be construed as constituting a partnership, joint venture, or contract of employment between the parties.
2. DELIVERY AND GRANT OF RIGHTS
 2.1 In consideration of the payments made by the Licensee, and subject to the Licensee observing its obligations under this Agreement, the Licensor grants to the Licensee for the Term the following non-exclusive rights ("the Rights"), to:
 
(a) access and permit Authorised users to access at any time the Licensor's servers, or as the case may be any service provided by an agent on its behalf, for the purpose of accessing the Licensed Material, for research, teaching, and private study purposes;
 
(b) permit Authorised Users to print and/or download individual articles and other individual items (excluding E-textbook resources) from searches of the Licensed Material for research, teaching, and private study purposes;
 
2.2 The Rights are personal to the Licensee and do not extend to its subsidiary or parent organizations, or to any other related or affiliated organizations. The Licensee may not assign, sub-license, transfer, charge or otherwise dispose of its rights under this Agreement without the prior written consent of the Licensor.
 
2.3 Title to, and ownership of, all intellectual property (including any copies of Licensed Material made by the Licensee) is not transferred to the Licensee and remains vested in the Licensor, subject to the Rights granted in Clause 2.1. The Licensee acknowledges that any rights not expressly granted in this Licence are reserved to the Licensor.
 
2.4 Ownership of all student email addresses, passwords and resources (to which the Licensee holds intellectual property rights) that the Licensee has uploaded to the Licensor’s servers is retained by the Licensee.
 
2.5 Ownership of all assessment data collected via the Test and Assess service is retained by the Licensor. 
 
2.6 The Licensee is responsible for the provision of and payment for the computer hardware and software equipment and telecommunication services necessary for access to the Licensed Material. The Licensor shall not issue credits or refunds against charges incurred by the Licensee in relation to such telecommunication services or those incurred contacting the Licensor. The Licensee accepts that the Licensor has no control over such hardware, software and telecommunication services and that the Licensor shall have no liability to the Licensee for the acts or omissions of providers of telecommunication services or for faults in or failures of their apparatus. The Licensor is not responsible for any technical support requirements arising from the licensee's use of hardware, software and telecommunications services.
3. USAGE RESTRICTIONS
Except as expressly permitted in Clause 2.1, the Licensee warrants that it will not, nor will it license or permit others to, directly or indirectly, without the Licensor's prior written consent:
 
(a) sell, distribute, license, rent or otherwise exploit the Licensed Material, any element of it, or any derivative work for any commercial purpose;
 
(b) make the Licensed Material, any element of it, or weblinks created by the URL Generator, available by any means to persons other than Authorised Users;
 
(c) make the Licensed Material, or any element of it, or weblinks created by the URL Generator, available on, or by, electronic bulletin boards, news groups, Web sites, FTP or any other means of posting or transmitting material on the Internet, an on-line service or wide area network, excepting with the written permission of The Licensor;
 
(d) remove or obscure the Licensor's copyright notice from the Licensed Material including hard-copy print-outs;
 
(e) use the Licensed Material, or weblink created by the URL Generator, to create any derivative work, product or service, or merge the Licensed Material with any other product, database, or service, excepting use within the licensee's Virtual Learning Environment or institutional intranet;
 
(f) alter, amend, modify, translate, or change the Licensed Material, excepting where permission has been expressly given by The Licensor;
 
(g) undertake any activity which may have a damaging effect on the Licensor's ability to achieve revenue through selling and marketing the Licensed Material; or
 
(h) upload or share any material via the Lesson Builder service which is, in whole or in part, pornographic, libellous or obscene, or to which You do not hold the necessary usage rights;
 
(i) use the Lesson Builder service to transmit any viruses, worms, defects, Trojan horses or other malicious code or items of a destructive nature.
 
(j) otherwise use the Licensed Material supplied in accordance with this Agreement in a manner that would infringe the copyright or other proprietary rights contained within it.
4. TERM AND TERMINATION
4.1 This Agreement shall begin on the date hereof and continue for an initial period of the Term. The Term may be renewed for additional periods, subject to payment of appropriate fees and acceptance thereof by the Licensor, in accordance with Clause 5.1.
 
4.2 Either party may terminate this Agreement at any time upon written notice to the other if the other party commits a serious breach of any obligation in this Agreement.. The termination will become effective thirty days after receipt of written notice unless, in the case of a remediable default, during the relevant period of thirty days the defaulting party has remedied the default.
 
4.3 Licensor may terminate this Agreement at any time upon thirty days' written notice to the Licensee.
 
4.4 If termination of this Agreement occurs as a result of notice being given by the Licensee under Clause 4.2, 4.7 or 8.2 or by the Licensor under Clause 4.3 or 8.2 the Licensor shall repay the Licensee a rateable proportion of the Licence Fee as represents the paid but unexpired Term at the date of termination.
 
4.5 On termination of this Agreement, the Licensee agrees to destroy, and will instruct all Authorised Users to destroy, all Licensed Material stored on any digital information storage media, including, but not limited to, system servers, hard disks, diskettes, memory sticks, recorded discs, and back up tapes.
 
4.6 The Licensor may suspend the provision of the Licensed Material to the Licensee with immediate effect on written notice without liability if the Licensor believes the Licensed Material is being used in a manner that contravenes the provisions of this Agreement.
 
4.7 Either party may terminate the Agreement forthwith on notice in writing to the other if the other party is unable to pay its debts or ceases or threatens to cease to carry on business, goes into administration, receivership or administrative receivership, or any event analogous to any of the foregoing occurs in any jurisdiction.
5. LICENCE FEE
5.1 The Licensee agrees to pay to the Licensor the Licence Fee within 30 days of the Commencement Date. If the Licensee does not pay the fees by the end of the Term, the Licensor will assume that the Licensee does not wish to accept the Agreement and the Agreement will terminate and the Licensee's authorised access to the Licensed Material will cease.
 
5.2 While Hodder Education makes every effort to ensure that information on its websites is accurate, this cannot be guaranteed. Prices displayed and availability may change without prior notice.
 
5.3 Contracts for the purchase of subscriptions must be concluded in English.
 
6. LICENSEE'S UNDERTAKINGS
6.1 The Licensee will take all reasonable steps to ensure that the Licensed Material is used only in accordance with the terms and conditions of this Agreement and shall inform Authorised Users of the permitted use restrictions and other provisions set out in this Agreement.
 
6.2 The Licensee will notify the Licensor immediately of infringements that come to the Licensee's notice and the Licensee agrees to co-operate with the Licensor as appropriate to stop further abuse should it occur.
 
6.3 Subject to Clause 4.5, nothing in this Agreement shall make the Licensee liable for breach of the terms and conditions of this Agreement by any Authorised User as long as the Licensee complied with the terms of Clauses 6.1 and 6.2 and did not cause, intentionally assist in or encourage such breach nor allowed it to continue after having received notice of such breach whether from the Licensor or otherwise. However, in the event of continuing abuse the Licensor shall be entitled to terminate this Agreement.
 
6.4 The Licensor shall be entitled to monitor the use of the Licensed Material through the Licensor's servers so as to monitor compliance with this Agreement.
 
7. WARRANTIES, UNDERTAKINGS AND INDEMNITIES
7.1 The Licensor warrants to the Licensee that it has full rights and authority to grant the Rights to the Licensee and that the use by the Licensee of the Licensed Material in accordance with this Agreement will not infringe the rights of any third party.
 
7.2 The Licensor shall indemnify the Licensee for the amount of any award of damages against the Licensee by a court of competent jurisdiction as a result of any claim arising from a breach of the warranty in Clause 7.1 provided that the Licensor shall be entitled to assume sole conduct of any defence and shall have the right at its option:
 
(a) to procure the right for the Licensee to continue using the Licensed Material;
 
(b) to make such alterations, modifications or adjustments to the Licensed Material that it becomes non-infringing without incurring a material reduction in performance or function; or
 
(c) to replace the Licensed Material with non-infringing substitutes provided that such substitutes do not entail a material reduction in performance or function.
 
7.3 The Licensor shall not be liable to the Licensee for any loss or damage whatsoever resulting from omissions or inaccuracies in the Licensed Material regardless of how caused. The Licensor does not warrant that access to the Licensed Material will be free from errors or faults.
 
7.4 Without prejudice to the generality of the foregoing, the Licensor shall not be liable for any claim arising from:
 
(a) any failure or malfunction resulting wholly or to any material extent from the Licensee's negligence, operator error, use other than in accordance with the User Documentation or any other misuse or abuse of the Licensed Product;
 
(b) the failure by the Licensee to implement recommendations previously advised by the Licensor in respect of, or solutions for, faults in the Licensed Material;
 
(c) the decompilation or modification of the Licensed Material or its merger with any other program or any maintenance repair adjustment alteration or enhancement of the Licensed Material by any person other than the Licensor or its authorised agent; or
 
(d) the Licensee or any Authorised User being unable to exercise the Rights due to the Licensed Material being unavailable as a result of any act or omission of the Licensor provided that the period for which the Licensed Material is not available shall not exceed a period of 100 hours (in aggregate) in any continuous period of 1000 hours.
 
7.5 The Licensee shall use its best efforts to safeguard the intellectual property, confidential information including without limitation the terms of this License, and proprietary rights of the Licensor.
 
7.6 The licensed material is provided "as is." neither the licensor nor anyone else makes any warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, quality, accuracy or fitness for a particular purpose. Except as otherwise expressly provided in this clause 7, all conditions, warranties, terms, representations, and undertakings express or implied, statutory or otherwise in respect of the licensed material are to the fullest extent permitted by law expressly excluded.
 
No oral or written information or advice given by any representative of the licensor or by anyone else shall create any warranties. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to You and You may have other legal rights that vary by jurisdiction.
 
7.7 The content of the Licensed Material is subject to change without notice.
 
7.8 The Licensor undertakes to store all email addresses, passwords, resources, Lesson Builder data and Results Builder data associated with the Licensee’s account for the lifetime of the subscription, and for 12 months only following the date of subscription termination.
 
8. FORCE MAJEURE
8.1 Either party's failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or services, shall not be deemed a breach of this Agreement.
 
8.2 If any event set out in Clause 8.1 shall continue for a period in excess of 30 days either party shall be entitled to terminate this Agreement forthwith by written notice to the other.
9. NOTICE
Any notice to be served on either party by the other made under this Agreement shall be in writing sent by electronic mail, prepaid recorded delivery or registered post to the address of the addressee as set out in the Schedule or to such other address as notified by either party to the other as its address for service of notices and all such notices shall be deemed to have been received within 48 hours after posting.
10. LIABILITY
10.1 Neither party excludes or limits liability to the other party for death or personal injury caused by its own negligence or any other liability the exclusion or limitation of which is expressly prohibited by law.
 
10.2 Except as provided for in Clause 10.1 above, the liability of the Licensor in respect of any and all claims (whether in contract or in tort) arising out of or in connection with this Agreement is limited in respect of each event or series of connected events to the lesser of £1,000 or an amount equal to the fees paid under this Agreement.
 
10.3 Except as provided for in Clause 10.1, notwithstanding anything else contained in this Agreement, in no event shall the Licensor be liable to the Licensee for:
(a) loss of profits, business, revenue, goodwill, anticipated savings; and/or
(b) indirect, special, incidental or consequential loss or damage.
(c) any inaccuracy in the Licensed Material.
 
10.4 It is up to You to assess such content including Your reliance on the accuracy, completeness or usefulness of such content. You agree and acknowledge that content is provided for information purposes only, may be publicly accessible and that You rely on any such content at Your sole and entire risk.
11. GOVERNING LAW
The Agreement is governed by and construed in accordance with English Law and the parties agree to submit to the exclusive jurisdiction of the English courts.
12. SEVERABILITY
In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
13. WAIVERS
No provision of this Agreement or breach thereof may be waived except in a writing signed by the party against whom the waiver is sought to be enforced.
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Rising Stars Assessment
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