PLEASE READ CAREFULLY BEFORE USING THIS WEBSITE:
These terms and conditions of Sumigi (Agreement) are a legal agreement between you (Customer or you) and The University of Sussex of Sussex House, Falmer, East Sussex BN1 9RH (Supplier, us or we) for:
the online exercise software provided by us to you via www.sumigi.com or any other website notified to you by us from time to time (Services);
online workbook software (Software); and
printed materials and electronic documentation made available to you by us online via www.sumigi.com or such other web address notified by us to you from time to time which sets out a description of the Services and the user instructions for the Services (Documentation).
We licence use of the Software and Document to you on the basis of this Agreement. We do not sell the Software or Documentation to you. We remain the owners of the Software and Documentation at all times.
IMPORTANT NOTICE TO ALL USERS:
BY REGISTERING YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU AND IF YOU ARE A BUSINESS YOUR EMPLOYEES. THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, LIMITATION ON OUR LIABILITY IN CLAUSE 8.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU AND YOU WILL NOT BE PERMITTED ACCESS TO THE SERVICES.
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Within this Agreement the following defined terms are used:
Authorised Users: means the individuals, employees, agents and individual contractors of the Customer who are authorised by the Customer to use the Services, Software and Documentation;
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;
Sumigi Credit: the virtual currency used on the Sumigi website and the payable fee which is the subject of this Agreement;
You should print a copy of this Agreement for future reference.
1. GRANT OF LICENCE AND SCOPE OF AGREEMENT
(Where you are a business) Subject to you paying the Subscription Fees in accordance with clause 4 and your compliance with the other terms and conditions of this Agreement, we hereby grant to the you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for your internal business operations.
(Where you are a consumer) Subject to you paying the Subscription Fees in accordance with clause 4 and your compliance with the other terms and conditions of this Agreement, we hereby grant to the you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for your personal, non-commercial purposes.
You may:(a) download, install and use the offline version of the Software for your personal purposes (if you are a consumer) or your internal business purposes (if you are a business);(b) use any Documentation in support of the use permitted under condition 1.3 and make up to two copies of the Documentation as are reasonably necessary for its lawful use.
In relation to the Authorised Users, you undertake that: (a) the maximum number of Authorised Users that you authorise to access and use the Services, Software and the Documentation shall not exceed the number of User Subscriptions you have purchased from time to time; (b) you will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services, Software and/or Documentation; (c) each Authorised User shall keep a secure password for their use of the Services, Software and Documentation and that each Authorised User shall keep their password confidential; (d) you shall permit us to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business; (e) if any of the audits referred to in clause 2.1(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to our other rights, you shall promptly disable such passwords and shall not issue any new passwords to any such individual; and (f) if any of the audits referred to in clause 2.1(d) reveal that you have underpaid Subscription Fees to us, then without prejudice to the our other rights, you shall pay to us an amount equal to such underpayment as calculated in accordance with our current prices in force from time to time, within ten (10) days of the relevant audit.
Except as expressly set out in this Agreement or as permitted by any local law, you undertake:(a) not to copy the Software or Documentation except where such copying is incidental to normal use of the Software;(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;(c) not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;(d) not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:(i) is used only for the purpose of achieving inter-operability of the Software with another software program; and (ii) is not unnecessarily disclosed or communicated to any third party without our prior written consent; and (iii) is not used to create any software which is substantially similar to the Software;(e) to supervise and control use of the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Licence;(f) not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from us.
You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us.
You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Services that:(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;(b) facilitates illegal activity;(c) depicts sexually explicit images;(d) promotes unlawful violence;(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.
3. CUSTOMER'S OBLIGATIONS
(a) provide us with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by us;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to your activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Us, our contractors and agents to perform our/their obligations under this agreement, including without limitation the Services;
(f) ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
(g) be solely responsible for procuring and maintaining your network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
4. CHARGES AND PAYMENT
You shall pay the Fees to us for the Sumigi Credits in accordance with this clause 4.
You shall, upon entering into this Agreement, provide to us via our payment websites valid, up-to-date and complete credit card details or (where agreed with us in advance) approved purchase order information acceptable to us and any other relevant valid, up-to-date and complete contact and billing details and, if you provide: (a) credit card details, you hereby authorise us to bill such credit card:(i) on the date of this Agreement for the Fees payable in respect of Sumigi Credits; and (ii) subject to clause 11;(b) your approved purchase order information to us, we shall invoice you:(i) on the Effective Date for the Sumigi Credits payable; and the Customer shall pay each invoice within 30 days after the date of such invoice.
If we have not received payment within 10 days after the due date, and without prejudice to any other rights and remedies we may have:(a) we may, without liability to you, disable your password, account and access to all or part of the Services and we shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;and (b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in this agreement: (a) shall be payable in pounds sterling; (b) are non-cancellable and non-refundable;(c) are exclusive of value added tax, which shall be added to our invoice(s) at the appropriate rate.
The Supplier shall be entitled to increase the Sumigi Credit Fees pursuant to clause 4.5 at the start of each 12 month anniversary of this Agreement upon 60 days' prior notice to the Customer.
5. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments.
The integrity of this Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor apply or manufacture for sale or hire, import, distribute, sell or let for hire, offer or expose for sale or hire, advertise for sale or hire or have in your possession for private or commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of such TPM.
6. CUSTOMER DATA
You shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
If we process any personal data on your behalf when performing our obligations under this Agreement, both you and us record our joint intention that you shall be the data controller and we shall be a data processor and in any such case: (a) you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order to carry out the Services and our other obligations under this Agreement;(b) you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf; (c) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and (d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7. SUPPLIER’S OBLIGATIONS
We undertake that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing: (a) we do not warrant that your use of the Services will be uninterrupted or error-free; or that the Services, Software, Documentation and/or the information obtained by you through the Services will meet your requirements; and (b) we are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services, Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This Agreement shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of our obligations under this Agreement.
8. LIMITATION OF LIABILITY
You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
If you are a business customer, we only supply the Services, Software and Documentation for internal use by your business, and you agree not to use the Services, Software or Documentation for any re-sale purposes.
If you are a consumer, we only supply the Services, Software and Documentation for domestic and private use. You agree not to use the Services, Software and Documentation for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
We shall not under any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for: (a) loss of profits, sales, business, or revenue; (b) business interruption; (c) loss of anticipated savings; (d) loss or corruption of data or information; (e) loss of business opportunity, goodwill or reputation; or (f) any indirect or consequential loss or damage.
Other than the losses set out in condition 8.3 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the total fees due under this Agreement or the sum of £100, whichever is greater. This maximum cap does not apply to condition 8.6.
Nothing in this Licence shall limit or exclude our liability for: (a) death or personal injury resulting from our negligence; (b) fraud or fraudulent misrepresentation; (c) any other liability that cannot be excluded or limited by English law.
This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Services, Software and Documentation. Except as expressly stated in this Licence, 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 Software and Documentation which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the your use of the Services, Software and/or Documentation, provided that: (a) you are given prompt notice of any such claim; (b) we provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and (c) you are given sole authority to defend or settle the claim.
10. TERM AND TERMINATION
This Agreement shall, unless otherwise terminated as provided in this clause 10, commence on the date you enter into this Agreement and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive monthly periods (each a Renewal Period), unless: (a) either party notifies the other party of termination, in writing, at least 10 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or (b) otherwise terminated in accordance with the provisions of this agreement;and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
We may terminate this Agreement immediately by written notice to you if: (a) you commit a material or persistent breach of this Agreement which you fail to remedy (if remediable) within 14 days after the userManagementService of written notice requiring you to do so; or (b) you fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 14 days after being notified in writing to make payment.
Upon termination for any reason you must immediately pay to us any sums due to us under this Agreement and by the date falling one month from termination; (a) all licences granted under this Agreement shall terminate; (b) you must immediately cease all activities authorised by this Agreement; and (c) you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Software and Documentation then in your possession, custody or control and, in the case of destruction, certify to us that you have done so; (d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11. COMMUNICATIONS BETWEEN US
If you are a consumer, if you wish to contact us in writing, or if any condition in this Agreement requires you to give us notice in writing, you can send this to us by e-mail or by pre-paid post to ‘The University of Sussex’ at FAO Director of Research and Enterprise Services (cc IP Manager), Falmer House, Falmer, East Sussex BN1 9QF. We will confirm receipt of this by contacting you in writing, normally by e-mail.
If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us in your order for the Services (or as subsequently updated).
If you are a business customer, please note that any notice given by you to us, or by us to you, will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the userManagementService of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
12. 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 this Licence that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in condition 13.2.
An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility userManagementService or transport or telecommunications 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 sub-contractors.
If an Event Outside Our Control takes place that affects the performance of our obligations under this Agreement: (a) our obligations under this Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and (b) we will use our reasonable endeavours to find a solution by which our obligations under this Agreement may be performed despite the Event Outside Our Control.
13. OTHER IMPORTANT TERMS
We may transfer our rights and obligations under this Agreement to another organisation, but this will not affect your rights or our obligations under this Agreement.
You may only transfer your rights or your obligations under this Agreement to another person if we agree in writing.
If you are a business customer, this Agreement constitutes the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this Agreement or any document expressly referred to in it.
If we fail to insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
Each of the conditions of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
If you are a consumer, please note that this Agreement, its subject matter and its formation, are governed by English law. You and we both agree to that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are resident of Scotland, you may also bring proceedings in Scotland.
If you are a business customer, this Agreement, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.