BRIGHT RED DIGITAL ZONE TERMS AND CONDITIONS
The following sets out the conditions of use for the Bright Red Publishing's Digital Zone. You may print these terms and conditions by pressing the print icon on your browser. By using this site you acknowledge that you have read, understood and agree to be bound by these terms and conditions. We may update these terms and conditions at any time and you will be bound by any new terms and conditions when you visit the site. If you do not agree to these site terms (including any amendments) you must not use this site.
LIABILITY FOR ACCURACY AND APPLICABILITY
The information contained in this website is not comprehensive and, despite our efforts, it may not be accurate, up to date or applicable to the circumstances of any particular case. We do not accept any liability for any inaccuracies or omissions (to the extent permitted by any applicable law) in this website and any decisions you make based on information contained in this website are your sole responsibility. Bright Red Publishing does not accept liability in contract or tort (including negligence) or otherwise for any direct, indirect, special, consequential or other losses or damages of whatsoever kind, whether or not foreseeable or in the contemplation of the parties, including but not limited to loss of profit or loss or damage to data, software or computer equipment arising out of access to, or the use of the this website or any information contained in it. This site is aimed at those who access this website from the United Kingdom mainland. Those who access this site from other locations are responsible for compliance with local laws if and to the extent that local laws are applicable.
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions "(Conditions)".
- “Bright Red Materials” means the educational content (including materials and information including text files, pictures, sounds files, images, graphics whether static or non-static in any digital and/or electronic format).
- “Digital Zone” means the BrightRED Digital Zone website which provides an online education environment which consists of resources integrated with Bright Red printed products.
- “Intellectual Property Rights” means 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 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.
- “Materials” means the Bright Red online resources, tests, quizzes, games and activities.
- “Software” means the software used by Bright Red on the Digital Zone.
- “User” means the teachers, school staff, parents and students who use the Digital Zone.
2. APPLICATION OF CONDITIONS
2.1 The User agrees that these Conditions shall be the exclusive basis on which the Bright Red Materials is used unless otherwise agreed in writing by an authorised representative of Bright Red.
2.2 These Conditions shall not create any agency or partnership between the parties or any third party.
3.1 In consideration of the User registration, Bright Red grants to the User permission to:
3.1.1 use the Software and the Bright Red Materials as part of the User's learning/teaching resources (which shall not include the use of the Software and/or Bright Red Materials by, or for the benefit of, any person other than students, teachers or authorised personnel). Without prejudice to the generality of the foregoing, the Users shall be entitled to:
126.96.36.199 temporarily display on a computer terminal the Bright Red Materials and adapt the materials on the computer's display for the purposes of learning and/or teaching in classes (including the preparation for such classes) within the User's organisation and/or establishment;
188.8.131.52 make paper copies and/or to adapt the Bright Red Materials for the purposes of learning and/or teaching classes (including the preparation for such classes) within the User's organisation and/or establishment;
3.2 The User may not use the Software and/or the Bright Red Materials for any other purpose other than as specified in conditions 3.1 without the prior written consent of Bright Red Publishing and the User acknowledges that additional fees may be payable on any change of use approved by Bright Red.
3.4 Users have no right to sub-license or to assign the benefit or burden of the licence set out in condition 3.1 in whole or in part, or to allow the Bright Red's Materials and/or the Software to become the subject of any charge, lien or encumbrance without the prior written consent of Bright Red.
3.5 The User shall not and shall contractually procure that they do not:
3.5.1 attempt to duplicate, modify, disclose or distribute any portion of the Software;
3.5.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
3.5.3 disclose the Software, Services, their usernames and passwords to third parties, without Bright Red's prior written consent.
3.6 The User shall not and ensure that they do not use the Bright Red Materials for any purposes except those set out in condition 3.1.
4. COMMENCEMENT AND TERM OF CONTRACT
4.1 Subject to earlier termination pursuant to the provisions of these Conditions, access to the Bright Red Materials shall commence upon User registration.
4.2 Subject to the other provisions in these Conditions, the initial free registration shall continue until 31st May, 2014, upon with time the terms of the agreement might vary.
5.1 Bright shall:
5.1.1 procure the hosting of the Materials on the Server;
5.1.2 provide the User with the relevant web page link to access the Digital Zone;
5.1.3 provide the User with the ability to create a user name and password for access.
5.2 Bright Red warrants that it shall use reasonable care and skill to provide the Services.
5.3 Bright Red shall use reasonable endeavours to ensure that the Server is available all the time.
6. CUSTOMER RESPONSIBILITIES
6.1 The User warrants that any personal data on the system (including the Server) complies fully with the Data Protection Act 1998 and associated legislation and hereby indemnifies Bright Red against any infringement of such legislation (except insofar as Bright Red is responsible for the security of the system and the Materials).
6.2 Subject to conditions 3.1, the User will take reasonable steps to ensure that they comply with the provisions of these Conditions and do not:
6.2.1 copy, print out or otherwise reproduce any information of materials extracted from the Server nor any material relating to any part of the Digital Zone, except as permitted under these Conditions or authorised by Bright Red in writing;
6.2.2 make available their username and password and/or any part of the Digital Zone available to anyone. Where such disclosure of username and/or password occurs, the User shall ensure that they notify Bright Red immediately so that Bright Red can take appropriate security measures; and/or
6.2.3 use the Digital Zone and/or information extracted from the Server for any illegal, fraudulent or immoral purposes.
6.3 The User shall ensure that they notify Bright Red immediately of any errors or inaccuracies in respect of any information and/or data extracted from the Server including the Bright Red Materials. In this regards, the User shall contact Bright Red by emailing at email@example.com.
6.4 Unless otherwise agreed in writing by Bright Red, the User is solely responsible for configuring their computer to access the Digital Zone and to provide for its own virus protection software. For the avoidance of doubt, the User acknowledges that the computers used satisfy the specifications notified by Bright Red Publishing.
7. WITHDRAWAL OF ELECTRONIC MATERIAL
7.1 Bright Red reserves the right at any time to withdraw the Bright Red Materials and/or any parts of the Bright Red Materials:
7.1.1 if Bright Red no longer retains the right to publish such material; or
7.1.2 if in Bright Red's sole discretion, Bright Red on reasonable grounds believes that such materials contain any content which infringes copyright or such intellectual property rights of third parties or is defamatory obscene unlawful or otherwise objectionable and Bright Red shall notify the User of such withdrawal as soon as it is practicable.
7.2 On receipt of the notice referred to in conditions 7.1, the User shall cease all distribution in any and all media of the withdrawn material and shall comply with Bright Red's reasonable instructions with respect to the deletion of such withdrawn material.
8. TRIAL PERIOD
8.1 Bright Red offers the User the opportunity to trial the Digital Zone free of charge for a period of three months (‘Trial Period').
8.2 During the Trial Period, access will be made available to the User in respect of the Digital Zone and the Services offered.
9. PRIVACY AND DATA PROTECTION
9.2.1 the information and personal data which Bright Red collects about the Users;
9.2.2 what such information and personal data is used for; and
9.2.3 the safeguards which are in place.
10. FEES AND PAYMENT
10.1 In consideration of Bright Red licensing the Digital Zone and providing the Services to the User, the Customer shall pay to Bright Red the agreed Fees when they are advised and applicable.
10.2 Unless otherwise agreed between the parties, the Fees shall be paid after the 3 month Trial Period should the user wish to continue to use the Bright Red Materials.
10.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Bright Red after the free Trial Period:
10.3.1 charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Royal Bank of Scotland Plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the User shall pay the interest immediately on demand; and
10.3.2 suspend the User's use of Bright Red Materials and the Services until payment has been made in full.
10.4 Time for payment shall be of the essence of the Contract.
10.5 All sums payable to Bright Red shall become due immediately on its termination, despite any other provision. This condition 10.5 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
10.6 Bright Red may, without prejudice to any other rights it may have, set off any liability of the User against any liability of Bright Red to the User.
10.7 No payment for the Fees shall be deemed to have been received until Bright Red has received cleared funds.
11. WARRANTIES AND LIMITATION OF LIABILITY
11.1 Bright Red warrants that the Digital Zone will conform in all material respects to the brochures, marketing material produced by Bright Red and Bright Red's website in respect of the Digital Zone for a period of 90 days from the Commencement Date.
11.2 Bright does not warrant that the use of the Digital Zone and/or the Services will be uninterrupted or error-free.
11.3 The User accepts responsibility for the selection of the Digital Zone and/or the Services to achieve its intended results.
11.4 This condition 11 sets out the entire financial liability of Bright Red (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the User in respect of (1) any breach of the Contract; (2) any use made by the User of the Digital Zone and/or the Services; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
11.5 Subject to the warranties expressly contained in these conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.6 Nothing in these Conditions limits or excludes the liability of Bright Red for death or personal injury resulting from negligence or for any damage or liability incurred by the User as a result of fraud or fraudulent misrepresentation by Bright Red.
11.7 Subject to condition 11.6, Bright Red shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.8 Subject to conditions 11.6 and 11.7, Bright Red's total 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 the Contract shall be limited to the sum insured where Bright Red is insured and the Fees specified in all other cases.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 As between the parties, the User acknowledges that Bright Red owns all Intellectual Property Rights in the Software, Bright Red Materials and the Services. Except as expressly stated in these Conditions, these Conditions do not grant the User any rights to, or in any Intellectual Property Rights or any other rights or licences in respect of the Software, Bright Red Materials and/or Services.
12.2 If the Customer utilises the Digital Zone for any other purpose other than those contemplated in condition 3, the licence to use the Bright Red Materials granted pursuant to condition 3.1 is automatically terminated. Further use of the Software shall constitute Intellectual Property Rights infringement.
12.3 Bright Red warrants to the best of its knowledge that the Intellectual Property Rights in the Software, Services and Bright Red Materials would not infringe the Intellectual Property Rights of any third party.
12.4 With regard to Intellectual Property Rights infringement in respect of the Software, Services and/or Bright Red Materials, each party shall promptly give notice in writing to the other in the event that it becomes aware of any infringement or suspected infringement of the Intellectual Property Rights in or relating to the same.
12.5 In the case of any matter falling within condition 12.4, Bright Red shall:
12.5.1 in its absolute discretion, determine what action if any shall be taken in respect of the matter;
12.5.2 have sole control over and shall conduct any action as it shall deem necessary; and
12.5.3 pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action where Bright Red decides to take control over and/or conduct any action but not otherwise and the Customer shall at Bright Red's cost provide all such assistance to Bright Red as Bright Red may request.
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other if:
13.1.1 the other party fails to pay any amount due on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
13.1.2 the other party commits a material breach of these terms 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; or
13.1.3 is unable to pay its debts or enters into compulsory of voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation if a different legal entity shall agree to be bound by and assume the obligations of the relevant party under the Contract) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrator appointed of its assets or ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of the party giving notice means that the other may be unable to pay its debts.
13.2 On termination of the Contract for any reason:
13.2.1 the User shall immediately pay to Bright Red all of Bright Red's outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, Bright Red may submit an invoice, which shall be payable immediately on receipt; and
13.3 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.
13.4 On termination of the Contract (however arising), conditions 6, 7, 10, 11, 12, 13 and 15 shall survive and continue in full force and effect.
14. FORCE MAJEURE
Bright Red shall have no liability to the User under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Bright Red 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.
15.1 Both parties shall keep in strict confidence all information which are of a confidential nature and have been disclosed by one party to the other party and shall procure that the receiving party's employees, agents, consultants or subcontractors keep in strict confidence all such information other than for the purposes of performing its obligations under the Contract.
15.2 The obligations set out in condition 15.1 shall not apply to confidential information that the receiving party can demonstrate is or has become publicly known other than through breach of this condition 15, was in the possession of the receiving party prior to disclosure by the other party, was received by the receiving party from an independent third party who has full right of disclosure, or was independently developed by the receiving party or was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
15.3 The parties agree that Bright Red shall be entitled to use the User's name and trade mark for marketing and promotional purposes.
16.1 Where the User's are unable to access the Digital Zone, the User shall first ascertain whether the inability to access the Digital Zone is caused by a failure on the part of the Server or Bright Red; or the Users' internet service provider and/or equipment. Where fault lies with the Server and/or Bright Red, the User shall contact Bright Red immediately using the following details:
Email address: firstname.lastname@example.org
Telephone Number: 0131 220 5804
16.2 Upon receiving the User's report, Bright Red shall use reasonable endeavours to resolve and rectify the problem to allow the User and its users to access the Digital Zone.
16.3 Where it is subsequently established that fault does not lie with the Server or Bright Red but with the Users' internet service provider and/or equipment, Bright Red reserves the right to charge the User such reasonable cost as Bright Red may have incurred.
17.1 All notices to be given shall be in writing and shall either be delivered personally or sent by first class pre-paid post or facsimile transmission and shall be deemed duly served:
17.1.1 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;
17.1.2 in the case of a notice sent by first class pre-paid post, two clear business days after the date of despatch; and
17.1.3 in the case of a facsimile transmission, if sent during normal business hours then at the time of transmission and if sent outside normal business hours then on the next following business day, provided that a confirmatory copy is sent by first class pre-paid post or by hand by the end of the next business day.
17.2 Each notice shall be addressed to the address of the party concerned set out at the head of this Agreement or to such other address as may be notified in writing for this purpose from time to time.
18. GENERAL PROVISIONS
18.1 The User shall not, without the prior written consent of Bright Red, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the terms and conditions.
18.2 The terms and conditions constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Nothing in this condition shall limit or exclude any liability for fraud.
18.3 A variation of the terms and conditions shall be in writing and signed by or on behalf of both parties.
18.4 A waiver of any right under the 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.
18.5 Unless specifically provided otherwise, rights arising under the terms are cumulative and do not exclude rights provided by law.
18.6 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.7 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.
19. GOVERNING LAW AND JURISDICTION
19.1 This Contract 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 Scotland.
19.2 The parties irrevocably agree that the courts of Scotland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract.
19.3 Nothing in these Conditions shall limit the right of Bright Red to take proceedings against the Customer 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.
19.4 In the event that any or any part of the terms contained in these terms and conditions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term shall to that extent be severed from the remaining terms which shall continue to be valid and enforceable to the fullest extent permitted by any applicable law.
Bright Red Publishing Limited (registered number SC 325561).
Registered office: 1 Torphichen Street Edinburgh, EH3 8HX telephone Tel: + 44 (0)131 220 5804 Fax: + 44 (0)131 220 6710, e-mail email@example.com VAT number 925988858.