These terms of business (these terms), together with the documents referred to in them, set out all of the terms on which A.T. Little and Sons Limited, a company incorporated and registered in England and Wales with registration number 1607961 and whose registered office is at 5 Redcliff Road, Melton, East Yorkshire, HU14 3RS, trading as “Browns Books” or Askews and Holts Library Services Ltd., a company incorporated in England and Wales with registration number 02745298 and whose registered office is at 1 Whittle Drive, Willingdon Drove, Eastbourne, East Sussex, BN23 6QH (the Provider), provides its services to operators of Educational Establishments (as defined below) (and each such operator is referred to in these terms as the Customer).
1 Definitions and interpretation
1.1 In these terms:
Access: means, in respect of an item of Digital Content, any of the acts of accessing, downloading, storing, viewing or reading that item of Digital Content which the relevant Content Licence and DRM permit;
Content Licence: means a licence to permit Access to an item of Digital Content to End Users, acquired by the Customer through the Service;
Contract: means the contract for provision by the Provider of the Service to the Customer, incorporating these terms;
Data Protection Laws: means:
(i)the applicable national implementations of each of Directive 95/46/EC and Directive2002/58/EC, in each case as amended, updated, re-enacted and/or replaced from time to time; and
(ii)any other laws of equivalent purpose or effect in the Territory;
Digital Content: means the digital content available to be licensed to the Customer by the Provider for Access by End Users in accordance with these terms;
DRM: means digital rights management technology designed to restrict what the End Users can do with the Digital Content;
End User: means a natural person who is an authorised user (pupil, undergraduate, postgraduate, member of staff, contractor of the Customer, membership of a professional body) at an Educational Establishment operated by the Customer, and who is authorised by the Customer to Access items of Digital Content for his or her personal use
Educational Establishment: means an educational establishment such as a school, college, university or professional institution and, where the context requires, any successor to that establishment (whether by way of conversion to academy or otherwise);
Fees: means, where applicable, the Subscription Fee and the Licence Fee, and Fee means either of them;
Initial Term: has the meaning given to it in clause 11;
Licence Fee: means, where applicable, the fee payable by the Customer for each Content Licence which it acquires through the Service;
Licence Scope: means, in respect of a Content Licence, the scope and limitations of that Content Licence as set out in the Service and/or the Provider’s invoice, including (by way of example) limitations as to term, borrow count or End User concurrency;
Publisher: means the publisher or copyright holder (as the case may be) of an item of Digital Content;
Renewal Term: has the meaning given to it in clause 11;
Service: means the “VLeBooks” content licensing and fulfilment platform operated by the Provider;
Subscription Fee: means, when applicable, the annual subscription fee payable by the Customer for access to the Service;
Technical Support: means the technical support services described in clause 6;
Term: means the Initial Term and each successive Renewal Term, taken together;
Termination: means expiry of the Contract or termination of the Contract, for any reason; and
Territory: means the country where the Customer has its principle establishment or, if different, where the relevant Educational Establishment operated by the Customer has its principle establishment.
2 The Service
2.1 The Provider will operate the Service with reasonable skill and care and will use reasonable efforts to ensure its availability during the Term. However, the Customer acknowledges that the Service may be unavailable from time to time, whether for maintenance or otherwise, and the Customer’s sole and exclusive remedy for any unavailability, malfunction or degraded performance of the Service will be to receive Technical Support.
2.2 The Provider hereby grants to the Customer:
2.2.1 the right to access, log in to and use the Service for the purpose of acquiring Content Licences and otherwise managing its account with the Provider; and
2.2.2 the right to permit End Users to access, log in to and use the Service within the Territory for the purpose of Accessing items of Digital Content for which the Customer has a current Content Licence and within the applicable Licence Scope,
in each case in accordance with these terms.
2.3 The Provider may make changes to the Service from time to time during the Term:
2.3.1 to reflect changes or advances in technology or best practice, including (without limitation) changes or advances in DRM;
2.3.2 if required in order to comply with applicable laws or the requirements of a Publisher; or
2.3.3 which do not materially affect the nature or quality of the Services.
2.4 As between the Customer and the Provider, the Customer is responsible for obtaining and operating all of the equipment, software and network connections necessary to access and use the Service, and the Provider has no liability in respect of any failure or incompatibility in any Customer or End User equipment or network connections, including but not limited to End Users’ reading devices.
3 Digital Content
3.1 During the Term, the Customer can use the Service to procure Content Licences. The Customer acknowledges that the selection of Digital Content for which Content Licences are available, and the Licence Scope which may be offered with such Content Licences, is subject to commercial availability and Publisher requirements, and will vary from time to time.
3.2 For each Content Licence, subject to payment by the Customer of the relevant Licence Fee, the Provider grants to the Customer a non-exclusive, royalty free licence to offer and sub-license for Access the relevant item of Digital Content to
3.2.1 within the Territory; and
3.2.2 within the applicable Licence Scope.
3.3 Other than as set out in this clause 3, neither the Customer nor any End User will have any right to reproduce, distribute or modify any item of Digital Content (or any part of it), nor to copy or create any derivative work from any item of Digital Content (or any part of it), except to the extent expressly permitted by applicable laws without the possibility of contractual waiver.
3.4 The Provider reserves the right immediately to remove a particular piece of Digital Content from the Service in response to:
3.4.1 a court order;
3.4.2 legal advice;
3.4.3 a request by a government authority;
3.4.4 a claim or request by a third-party alleging infringement of that third party’s rights in that Digital Content; or
3.4.5 the Publisher’s request, in which case that Digital Content will no longer be available through the Service, and where the Customer has a current Content Licence for that Digital Content the corresponding Content Licence will terminate and the Provider will credit the Customer’s account with a pro rata amount reflecting the unused portion of the relevant Licence Fee.
3.5 The Customer acknowledges that the Provider is the provider of the Service, not the Publisher of the Digital Content, and the Provider has no control over the substance of the Digital Content itself, nor over the particular selection of Digital Content for which the Customer chooses to acquire Content Licences. Therefore, the Provider makes no representation and gives no warranty as to the quality of the Digital Content or its fitness or suitability for any particular purpose, all of which is for the Customer to assess (for example, by reference to reviews, recommendations or other external guidance). In particular, the Customer is solely responsible for selecting Digital Content which is appropriate to the End Users’ needs and vulnerabilities, having regard to all relevant factors including (without limitation) the End Users’ age, their best interests, and the Customer’s legal safeguarding obligations.
4 Access by End Users
4.1 The Customer may permit End Users to Access, via the Service and within the Territory and the applicable Licence Scope, Digital Content for which the Customer has procured a Content Licence, and the Provider will provide such Access through the Service and in accordance with clause 2, either by way of the online reader provided in the Service or by way of DRM-protected download to the End User’s device (as the End User may request and the applicable Licence Scope and these terms may permit).
4.2 As a condition of such Access, the Customer will make all reasonable endeavours to ensure that each End User and each of its officers, employees and other staff who have access to the Service:
4.2.1 keeps their respective access credentials for the Service secure and does not share them with any other person or third party;
4.2.2 does not do damage to the Service or gain unauthorised access to it or to any Digital Content, and makes no attempt to do any of those things; and
4.2.3 does not (and makes no attempt to) circumvent any of the DRM or other security measures in the Service or any item of Digital Content and upon becoming aware of any breach of
these terms, fully investigate promptly and use all reasonable endeavours to ensure that such activity ceases and prevents any recurrence.
If such endeavours are not undertaken the Customer will be liable for each act and omission of each such person in respect of the Service and/or the Digital Content as if it were the act or omission of the Customer itself.
4.3 The Provider may (without prejudice to its other rights) suspend any End User’s ability to Access Digital Content if it reasonably believes that End User to be engaging in any of the activities contemplated by clause 4.2.
5.1 The Provider will, when applicable, invoice the Customer:
5.1.1 for the Subscription Fee, annually in advance; and
5.1.2 for each Licence Fee, in arrears following the Customer’s acquisition of the relevant Content Licence, and the Customer will pay each such invoice in full and without deduction or set-off within 30 days of its date of issue. The Provider will be entitled to charge late payment interest on any payments or invoices which are due but not paid at a rate of 4 per cent per annum above the Bank of England's official dealing rate from the date on which the invoice became overdue until the date of payment (whether before or after judgment).
6 Technical Support
6.1 The Customer is responsible for providing first line technical support to End Users. The Provider will provide second and third line Technical Support to the Customer to assist it in supporting End Users, using reasonable efforts to correct or provide a workaround for problems with the Service or Access to Digital Content. The Provider will provide that Technical Support on weekdays (other than public holidays in the UK) by email and telephone and between the hours of 8.30am and 5.00pm (UK time) only.
6.2 If an item of Digital Content should be faulty, and the Provider has been unable to correct the fault within a reasonable time through Technical Support, the Provider will cancel the applicable Content Licence and if applicable refund to the Customer the applicable Licence Fee for that Digital Content (or, if the relevant Digital Content has previously worked correctly, a pro rata amount reflecting the unused portion of the Licence Fee).
7 Customer warranties
7.1 The Customer represents and warrants that:
7.1.1 it has full power, authority and capacity to enter into and perform all of its obligations under these terms;
7.1.2 it will not permit or condone any unlicensed use or misappropriation of the Digital Content on the part of any End User or any other third party;
7.1.3 it will immediately notify the Provider of, and take all reasonable steps to reduce or prevent, any unauthorised or improper use of the Digital Content by End Users or any third party; and
7.1.4 it will not give any guarantee or make any promise about the Digital Content beyond those which it receives from the Provider under these terms.
8 The Provider’s liability
8.1 This clause sets out the Provider’s entire liability to the Customer arising out of or in connection with these terms or the transactions or services contemplated by them.
8.2 Except as expressly stated in these terms, all warranties and conditions whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
8.3 Nothing in these terms will exclude or limit the Provider’s liability for:
8.3.1 death or personal injury caused by its own negligence;
8.3.2 fraud; or
8.3.3 fraudulent misrepresentation.
8.4 The Provider will not be liable for any:
8.4.1 loss or damage arising out of any:
(a) failure to perform its obligations under these terms which is wholly or mainly caused by an event beyond its reasonable ability to control;
(b) failure, or circumvention by a third party, of any DRM;
(c) security failure or data breach suffered by the Customer or any End User;
8.4.2 loss of revenue, loss of profits, account of profits, loss of opportunity, loss of contract, loss of anticipated savings, loss of reputation or goodwill, loss of data, increased costs or replacement costs; or
8.4.3 any indirect or consequential loss.
8.5 The Provider will otherwise be liable to the Customer for the Customer’s direct losses resulting from the Provider’s material breach of these terms, provided that the Provider’s total liability will not in aggregate exceed an amount equal to 125% of the Fees received by the Provider in the 12 months prior to the event (or the last in the sequence of events) giving rise to such liability.
The online help and documentation of the Service, the pricing information for Digital Content accessible through the Service (including any discount which the Provider may agree) and the credentials provided by the Provider for access to the Service are confidential to the Provider and the Customer will not, and will procure that none of its officers, employees, contractors, staff or End Users will, disclose them to any third party unless required to do so according to mandatory legislation.
10 Data Protection
10.1 The Provider is fully GDPR (General Data Protection Regulation) compliant. Terms defined in the Data Protection Act 2018 have the same meanings when used in this clause 10.
10.2 Each party will comply with the Data Protection Laws applicable to it in connection with these terms.
10.3 Where the Provider, or a subcontractor of the Provider, processes personal data (as data processor) on behalf of the Customer (as data controller) in connection with the Service:
10.3.1 the Provider will, or will ensure that its subcontractor will:
(a) take appropriate technical and organisational measures to protect those data against unauthorised or unlawful processing and accidental loss, destruction or damage;
(b) ensure that, having regard to the state of technological development and their cost of implementation, those measures ensure a level of security appropriate to (1) the harm that might result from such processing, loss, destruction or damage; and (2) the nature of the data;
(c) not process those data, and in particular (but without limitation) not disclose them to any person (other than a permitted subcontractor) or transfer them outside the European Economic Area, except on the instructions of the Customer or as required by law or regulation; and
(d) promptly inform the Customer if it receives a request or notice from a data subject seeking to exercising his or her rights under the Data Protection Laws in respect of those data, and (at the Customer's cost) comply with the Customer's reasonable instructions with respect to that request or notice;
10.3.2 the Customer:
(a) instructs the Provider to take such steps in the processing of personal data on its behalf as the Provider reasonably considers necessary to the exercise of its rights and the performance of its obligations under these terms; and
(b) irrevocably authorises the Provider to give equivalent instructions to any subcontractor on its behalf; and
10.3.3 the Provider will ensure that any subcontractor to which it delegates the processing of personal data on behalf of the Customer is bound by a written agreement imposing on the subcontractor obligations equivalent to those set out in clause 10.3.1.
11 Term and termination
11.1 The Contract will have effect for an initial period of 12 months (the Initial Term) and will renew for successive 12 month periods (each, a Renewal Term) unless either party provides to the other no less than 90 days prior to the expiry of the Initial Term or the then-current Renewal Term (as the case may be) written notice of its intention not to renew, in which case it will terminate at the end of such Initial Term or Renewal Term (as the case may be).
11.2 Either party may terminate the Contract by notice to the other if:
11.2.1 the other party commits any material breach of these terms and, if the breach is capable of remedy, has not remedied it within 30 days of being notified of it; or
11.2.2 the other party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
11.3 The Customer may, for up to 2 years following Termination, continue to provide
to End Users Access to Digital Content for which it has, prior to Termination, acquired a Content Licence (Runoff Access), provided that:
11.3.1 Runoff Access will be restricted to viewing the relevant Digital Content through the online reader in the Service only, and no downloads will be permitted; and
11.3.2 the Customer continues to comply in all respects with these terms throughout Runoff Access (except only that no Subscription Fee will be payable in respect of Runoff Access).
11.4 The Provider need not honour (and may cancel) any acquisition or purported acquisition of Content Licences after Termination, and the Provider will have no liability to the Customer in respect of such cancelled acquisitions.
11.5 If the Provider has given notice pursuant to clause 11.1 that it does not wish to renew the Contract for a further Renewal Term, the Customer may (but need not) at any time during the notice period nominate by notice to the Provider a replacement supplier of services comparable to the Services, in which case the Provider will, during the remainder of the notice period, use reasonable endeavours (but at no cost to the Provider beyond its internal administration costs) to transfer or novate to such replacement supplier any Content Licences which, following Termination, will have time left to run and/or unused borrow count (as the case may be, depending on the applicable Licence Scope), such that the replacement supplier is licensed to provide Access to the relevant Digital Content after Termination in place of the Provider. The Customer acknowledges that such transfers are dependent on the cooperation of both the replacement supplier and the relevant Publishers, and that the Provider cannot guarantee the right of any replacement supplier to provide such Access.
12 Reorganisation or merger of Educational Establishment
12.1 Where a relevant Educational Establishment undergoes a merger or reorganisation, such that the identity of the Customer for licensing purposes changes, the Provider will use reasonable endeavours (but at no cost to the Provider beyond its internal administration costs) to transfer or novate to the replacement Customer any Content Licences which, as of the effective date of such merger or reorganisation, will have time left to run and/or unused borrow count (as the case may be, depending on the applicable Licence Scope), such that the replacement Customer, upon entry into and subject always to its compliance with these terms, is licensed to continue to provide Access to the relevant Digital Content to the relevant End Users. The Customer acknowledges that such transfers or novations are dependent on the cooperation of both the replacement Customer and the relevant Publishers, and that the Provider cannot guarantee the right of any replacement Customer to provide such Access. In particular, such transfers or novations may not be possible where the relevant Publisher no longer offers the relevant Digital Content.
13.1 The Provider may subcontract the performance of any of its obligations under these terms, but the Provider will remain liable to the Customer for the acts and omissions of its subcontractors as if they were the acts and omissions of the Provider. Otherwise, neither party may subcontract, assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under these terms without the prior written consent of the other, which it will not unreasonably withhold or delay.
13.2 These terms constitute the entire agreement between the parties in relation to the Contract and supersede all previous agreements, understandings, negotiations, statements and discussions, whether written or oral, relating to it. These terms may not be amended, varied or supplemented other than by agreement in writing signed on behalf of both parties by their respective authorised representatives.
13.3 Any notice to be given to a party under these terms will be sent by email or given in writing in English and left at or sent by first-class registered post to the address of the other shown in the Contract (or if no such address is shown, to its registered office or usual place of business), or such other address as the party concerned will from time to time designate by notice pursuant to this clause. This clause 13.3 does not apply to service of proceedings or any pre-action letters or communications.
13.4 The relationship between the parties established by these terms is that of independent parties and nothing contained in these terms will create a partnership, joint venture or other joint undertaking, nor will anything contained in these terms create the relationship of principal and agent between the parties. Without limiting the generality of the foregoing, each party acknowledges and agrees that it will have no right or authority to bind or to make any representation or warranty on behalf of the other party.
13.5 A waiver of any term or breach of these terms will only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
13.6 These terms, the Contract and all non-contractual obligations arising out of or in connection with them are governed by English law and subject to the exclusive jurisdiction of the English courts.