MARK (MY ASSESSMENT AND REPORTING KIT)
Terms and Conditions
THESE TERMS APPLY TO ALL USERS OF THE MARK WEBSITE. PLEASE READ THESE TERMS CAREFULLY. BY USING THE MARK WEBSITE 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 MARK WEBSITE.
If you do not agree to these site terms (including any amendments) you must not use this site.
1.1 In these Terms, unless the context requires otherwise, the following expressions have the following meanings:
“Access Period”: the period during which the Licensee has access to, and continues to use, the MARK Website.
“Authorised User”: all members of staff employed by the Licensee and all students of the Licensee who are granted access to the MARK Website by Licensee.
“Licensed Material”: the MARK Website software and all material and content available for access on the MARK Website from time to time (other than Pupil Data), together with any additional material that the Licensor makes available to the Licensee in connection with the MARK Website.
“License”: the school, institution, government body or other legal entity who accesses the MARK Website and the Licensed Material by registering one or more Authorised User.
“Licensor”: Rising Stars UK Limited (on behalf of its business division, Hodder Education), registered office Carmelite House, 50 Victoria Embankment, London, EC4Y 0DZ.
“MARK Website”: the website at the URL https://my.risingstarsassessment.co.uk/.
“parties”: the Licensor and the Licensee.
“Pupil Data”: any information about, or data relating to, pupils that is entered onto the MARK Website by Authorised Users, including, without limitation, assessment data.
“Test Credit”: the units allocated to the Licensee on purchase to enable the Licensee and/or any Authorised User to access the interactive tests constituting part of the Licensed Material.
2. DELIVERY AND GRANT OF RIGHTS
2.1 In consideration of, and subject to, the Licensee observing its obligations under this Agreement and payment for Test Credits for use of the parts of the MARK Website only accessible on payment, the Licensor grants to the Licensee during the Access Period the non-exclusive rights (the “Rights”) to access, and permit Authorised Users to access, at any time the MARK Website for the purpose of accessing the Licensed Material, solely for research, teaching, and assessment purposes.
2.2 The Rights are personal to the Licensee and do not extend to its subsidiary or parent organisations, or to any other related or affiliated organisations. The Licensee may not assign, sub-license, transfer, charge or otherwise dispose of its rights under these Terms without the prior written consent of the Licensor.
2.3 Title to, and ownership of, all brand names, service names, product names, titles and copyright material used in or on the MARK Website (including without limitation the Licensed Material) 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 to Licensee under these Terms are reserved to the Licensor. Licensee shall not reproduce any Licensed Material.
2.4 Ownership of all email addresses, passwords of Authorised Users and any resources or content in which the Licensee holds intellectual property rights that the Licensee or any Authorised User has uploaded to the MARK Website (including assessment data) (together, “Licensee Content”) is retained by the Licensee. The Licensee grants to the Licensor a worldwide, perpetual, royalty-free licence to use the Licensee Content for Licensor’s legitimate business purposes, including without limitation, to produce and distribute reports, national assessment benchmarks and data sets using assessment data uploaded to the MARK Website by Authorised Users, which data the Licensor shall only use in anonymised form, unless otherwise agreed in writing with the Licensee.
2.5 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 MARK Website and the Licensed Material. The Licensor will 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 any hardware, software and telecommunications services used to access the MARK Website and the Licensed Material.
2.6 The Licensee shall use its best efforts to safeguard the intellectual property, confidential information (including without limitation these Terms) and proprietary rights of the Licensor.
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, websites, FTP or any other means of posting or transmitting material on the Internet, an on-line service or wide area network;
(d) use the Licensed Material, or weblinks 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;
(e) alter, amend, modify, translate, or change the Licensed Material;
(f) undertake any activity which may have a damaging effect on the Licensor’s ability to achieve revenue through selling and marketing the Licensed Material;
(g) upload or share any material on the MARK Website which is, in whole or in part, pornographic , libellous or obscene, or to which the Licensee does not hold the necessary usage rights;
(h) transmit any viruses, worms, defects, Trojan horses or other malicious code or items of a destructive nature during its use of the MARK Website; or
(i) otherwise use the Licensed Material supplied in accordance with these Terms in a manner that would infringe the copyright or other proprietary rights contained within it.
4. TERM AND TERMINATION
4.1 These Terms shall apply for the duration of the Access Period.
4.2 The Licensor may suspend or terminate access to the MARK Website and/or provision of the Licensed Material to the Licensee with immediate effect on written notice without liability or the obligation to reimburse any payment for Test Credits if the Licensor believes that Licensee is responsible for the MARK Website being accessed or the Licensed Material being used in a manner that contravenes these Terms.
4.3 Licensor may terminate Licensee’s access to the MARK Website and/or Licensed Materials and/or the Access Period without cause at any time upon thirty days’ written notice to the Licensee. In these circumstances, the Licensor shall repay to the Licensee any payment received by the Licensor for Test Credits that are unused at the date of termination.
5.1 The Licensee agrees to pay to the Licensor any fees payable for the purchase of Test Credits on the Licensor’s request and in any event within 30 days of receipt of Licensor’s invoice. If the Licensee does not pay such fees when due, the Licensor shall not make the Test Credits available to the Licensee.
5.2 While the Licensor makes every effort to ensure that information on its websites is accurate, this cannot be guaranteed. Prices displayed and availability in respect of the Licensed Material on the MARK Website or any other of Licensor’s websites may change without prior notice.
6. LICENSEE’S UNDERTAKINGS
6.1 The Licensee shall inform Authorised Users of the permitted use restrictions and other provisions set out in these Terms and shall ensure that all Authorised Users comply with these Terms.
6.2 The Licensee will notify the Licensor immediately of any infringement of these Terms that come to the Licensee’s notice and the Licensee agrees to cooperate with the Licensor as appropriate to stop further infringement should it occur.
6.3 Licensee shall be liable for any breach of these Terms by any Authorised User. Licensee undertakes to ensure that any breach of these Terms by an Authorised User is not allowed to continue after Licensee has received notice of such breach, whether from the Licensor or otherwise.
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 these Terms.
6.5 The Licensee shall be responsible for administering the registration of Authorised Users and of removing permissions for any individuals who are no longer Authorised Users including in the event that such individuals cease to be members of staff or employees of the Licensee. The Licensee shall keep an up to date list of Authorised Users and take such steps as maybe reasonable to ensure that the Authorised Users keep their contact details up to date.
6.6 The Licensee shall be responsible for ensuring that Authorised Users do not share passwords and keep these securely.
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 these Terms 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 to:
(a) procure the right for the Licensee to continue using the Licensed Material;
(b) make such alterations, modifications or adjustments to the Licensed Material so that it becomes non-infringing without incurring a material reduction in performance or function; or
(c) 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 Licensee acknowledges and agrees that the Licensed Material (including any reports provided by the Licensor based on Pupil Data) is provided for information purposes only and Licensee relies on the Licensed Material at its own risk. The Licensor makes no warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, quality, accuracy or fitness for a particular purpose in respect of the Licensed Material or any information or advice given by any representative of the Licensor. 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.
7.4 The Licensee acknowledges that the content of the Licensed Material is subject to change without notice.
8. FORCE MAJEURE
The Licensor’s failure to perform any term or condition of these Terms 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 these Terms.
9.1 Neither party excludes or limits liability to the other party for death or personal injury caused by its own negligence, fraudulent misrepresentation or any other liability the exclusion or limitation of which is expressly prohibited by law.
9.2 Subject to clause 9.1, the liability of the Licensor to the Licensee in respect of any and all claims (whether in contract or in tort) arising out of or in connection with the MARK Website or the Licensed Material 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 payable by the Licensee in the twelve-month period immediately preceding the events giving rise to the claim.
9.3 Subject to clause 9.1, notwithstanding anything else contained in these Terms, in no event shall the Licensor be liable to the Licensee for any loss of profits, business, revenue, goodwill, anticipated saving or any other indirect, special, incidental or consequential loss or damage.
9.4 Subject to clause 9.1, the Licensor shall not be liable for any claim arising from:
(a) omissions or inaccuracies in the Licensed Material regardless of how caused;
(b) any failure or malfunction resulting wholly or to any material extent from the Licensee’s negligence, operator error, use other than in accordance with these Terms or any user documentation provided by the Licensor from time to time, or any other misuse or abuse of the Licensed Material;
(c) the failure by the Licensee to implement recommendations or solutions previously advised by the Licensor in respect of faults in the Licensed Material;
(d) 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
(e) 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.
10. DATA PROTECTION
10.1 Both parties shall comply with the provisions of any applicable data protection law, including: (i) unless and until the General Data Protection Regulation (EU) 2016/679 (“GDPR”) is no longer directly applicable in the UK, the GDPR and the legislation in the United Kingdom designed to implement the GDPR and/or provide for the protection of personal data (as such legislation is amended or replaced from time to time) including the Data Protection Act 2018 (DPA 2018); and (ii) any successor legislation to the GDPR or the DPA 2018 (collectively, the “Data Protection Legislation”).“Personal Data”, “Data Subject”, “Data Controller” and “Data Processor” shall have the same meaning as under the GDPR or any subsequent UK Data Protection laws.
10.2 Without prejudice to the generality of clause 10.1, the Licensee will ensure that it has all necessary appropriate consents and notices (including but not limited to consents from Authorised Users (and where required, written consents from parents or guardians) in place to enable the lawful transfer and processing of Personal Data (including Pupil Data) to the Licensor for the duration of the Access Period for the purpose of Licensee’s use of the MARK Website and Licensed Material and Licensor’s use of the Pupil Data in accordance with these Terms.
10.3 Both parties shall obtain and maintain throughout the Access Period all necessary registrations and notifications that such party is obliged to obtain and maintain in accordance with the Data Protection Legislation in respect of providing or using the MARK Website.
10.4 In performing its obligations under this Agreement the Licensor may process Personal Data (including Pupil Data) on the Licensee’s behalf. The parties acknowledge that, save as otherwise provided in clause 10.5, for the purposes of the Data Protection Legislation, the Licensee is the ‘Data Controller’ and the Licensor is the ‘Data Processor’ (each as defined in the GDPR) in respect of such Personal Data.
10.5 The Licensor may process Personal Data (including Pupil Data) obtained direct from Authorised Users as a Data Controller:
(a) where such processing is necessary for its legitimate business interests as a supplier of digital platforms where such legitimate interests do not endanger the rights and freedoms of Data Subjects as described in the Licensor’s Privacy Notice made available to the Authorised User at the time of collection of such Personal Data;
(b) where such processing is necessary for the performance of a contract with the Authorised User; or
(c) where the Authorised User has provided his/her consent to such processing.
10.6 The Licensor shall delete Pupil Data if the Licensee has not used the MARK Website for a continuous period of 12 months, or if requested to do so by the Licensee.
11.1 In the event that any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be contrary to law, the remaining provisions of these Terms will remain in full force and effect.
11.2 No provision of these Terms or breach thereof may be waived except in a writing signed by the party against whom the waiver is sought to be enforced.
11.3 The Licensor may update these Terms from time to time at its discretion.
11.4 The failure of any party to enforce any provision of these Terms on any one occasion shall not affect its right to enforce another provision or the same provision on another occasion.
11.5 Nothing contained in these Terms shall constitute or shall be construed as constituting a partnership, joint venture, or contract of employment between the parties.
12. GOVERNING LAW
These Terms are governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.