(A) Except in the circumstances set out in paragraph (B), permission to use the Software (as defined below) is conditional upon you accepting these terms and conditions. Please take the time to read and familiarise yourself with them in order to understand your rights and obligations in connection with the Software. By using the Software you will be deemed to have accepted these terms and conditions.
(B) If you already have a right to use the Software under a separate licence agreement that either you have with us or that your employer (or other organisation that you carry out work for) has with us, then these terms and conditions do not apply to you and no Agreement (as defined below) is made between us.
The BlueSky software together with upgrades or modifications as we deem appropriate (Software) is provided by Atkey Solutions Limited (Atkey Solutions, we, us or our) (company number 03927663) whose registered office is at Howard Buildings, 69-71 Burpham Lane, Guildford, Surrey GU4 7NB.
2.1 Except in the circumstances set out in paragraph (B) of the Introduction, on acceptance of these terms and conditions by you an agreement is formed between you and us, which governs your use of the Software (Agreement). The Agreement incorporates all of these terms and conditions to the exclusion of any and all other terms and conditions that you may purport to apply.
2.2 We may update these terms and conditions from time to time, therefore please ensure you regularly check them. Any changes will take effect on the date they are posted onto the website. Your continued use of the Software shall constitute your acceptance to the terms and conditions of the Agreement, as varied.
The Agreement shall start on the date of the Agreement and shall remain in force until terminated in accordance with the terms of the Agreement.
4.1 In consideration of, and subject to, you at all times complying with the terms and conditions of the Agreement, we grant to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use the Software solely for your own professional purposes in each case in accordance with the Agreement, and from the date the Agreement commences until the date of termination of the Agreement.
4.2 We reserve the right to vary the method of access to the Software or to modify or withdraw any part of the Software or any ancillary services.
5.1 Intellectual Property Rights means all patents, rights to inventions, copyright and related rights, rights in software, moral rights, database rights, rights in designs, trade marks, service marks, trade names, domain names, rights in goodwill, rights in undisclosed or confidential information (such as know-how, trade secrets and inventions (whether patentable or not)), and other similar or equivalent rights or forms of protection (whether registered or unregistered) and all applications (or rights to apply) for, and for renewals and extensions of, such rights as may now or in the future exist anywhere in the world.
5.2 You acknowledge and agree that all Intellectual Property Rights:
(a) subsisting in the Software or any part of it from time to time, including in respect of the design, text, graphics, know-how, the selection and arrangement thereof, and in all software compilations, underlying source code, software, updates and all other documents and material in respect of the Software or related services (save for any uploaded material by you);
(b) created by or on our behalf or by our third party licensors in carrying out our obligations or exercising our rights under or in connection with the Agreement,
(together Atkey IP) shall at all times vest in and be owned by us and/or our third party licensors.
5.3 You further acknowledge and agree that, save as otherwise expressly set out in the Agreement, you shall not acquire any rights in or to Atkey IP under the Agreement.
5.4 To the extent any Atkey IP vests in you, you hereby assign to us with full title guarantee all such Atkey IP.
5.5 Save for the making of a copy for personal use, you are not permitted to copy, broadcast, download, store (in any medium), transmit, adapt or change in any way the content of the Software for any purpose other than incidentally as part of and to the extent necessary for the use by you of the Software.
5.6 For the avoidance of doubt, you are also prohibited from copying or uploading any material which infringes our or any third party Intellectual Property Rights and you will be responsible or any infringement of third party Intellectual Property Rights that occurs as a result of your doing so.
6.1 You may only use the Software for lawful and legitimate purposes and are forbidden to:
(a) send "spam" or other unsolicited bulk e-mails either directly or indirectly using or otherwise in connection with the Software; and/or
(b) hack into any part of the Software, and/or use the Software to hack into any third party website
(c) use the Software to upload, access, download, copy, publish, distribute or disseminate any material which:
(i) violates a law or regulation (such as, but not limited to, libel, slander, invasion of privacy, harassment incitement to racial or religious hatred or the infringement or misappropriation of another party's Intellectual Property Rights);
(ii) threatens the integrity of any network or computer system (such as transmission of worms, viruses and other malicious codes);
(iii) attempts to use the Software in such a manner so as to avoid incurring charges for or otherwise being required to pay for such usage;
(iv) otherwise degrades or interferes with other users' use of the Software;
(v) violates generally accepted standards of internet or other network conduct and usage such as denial of service attacks, web page defacement, port and network scanning and unauthorised system penetration; or
(vi) is for third party use, or discloses the proprietary material or Intellectual Property rights of Atkey Solutions to third parties.
6.2 You must comply with any instructions given by us in respect of security from time to time and must maintain the confidentiality of passwords and access codes. We accept no responsibility for unauthorised access caused by unauthorised use of access codes or passwords or failure to comply with our security procedures
6.3 Any information that you give, either to us or to any third parties to whom you are referred or come into contact with as a result of these Software, either directly or indirectly, must not be defamatory, deceptive, false, misleading, inaccurate or fraudulent.
6.4 Please note: you should not upload any personal data to the Software that is not about you, such as students’ or colleagues’ personal data, without first anonymising that data, so that the individual is no longer identifiable from that data.
7.1 Please note that the information provided to you in respect of the Software may from time to time include inaccuracies or typographical errors. Changes are periodically added to this information. We may also make improvements and/or changes in or to the Software from time to time.
8.1 We do not hold ourselves out as giving any advice. We do not make any recommendation or endorsement as to any training programme, service or product or to any material submitted by third parties (including other users) or linked to the Software. In addition, we do not offer any advice regarding the nature, potential value or suitability of any particular course of action or training programme.
8.2 We cannot control and do not accept liability for the actions or recommendations of any user, line manager or school as a result of using the Software.
8.3 We make no warranty that the Software will be uninterrupted. Please note that you are responsible for ensuring you have up to date anti-virus software in place.
9.3 If you enter any agreement with any third party, as a result of any referral by us to such third party, or as a result of you using any link from the Software to any third party website, you agree to abide by any terms and conditions relating to any such agreement.
10.1 Our liability shall not be limited or excluded to the extent limited or prohibited by law and in particular nothing in the Agreement shall exclude or limit liability for:
(a) death or personal injury caused by our negligence to the extent prohibited by law; or
(b) fraud or fraudulent misrepresentation.
10.2 Subject to Clause 10.1, we shall not be liable (whether arising by reason of any misrepresentation, negligence, other tort, breach of statutory duty, repudiation, renunciation or other breach of contract, restitution or otherwise or any under indemnity “however arising”) for any:
(a) loss of profits, loss of business, loss of goodwill, loss of anticipated savings and/or similar losses or loss or corruption of data or information; or
(b) indirect or consequential loss, costs or damages.
10.3 Subject to Clause 10.1, our total aggregate liability however arising under or in connection with the Agreement shall be limited to £100.
10.4 We shall have no liability to you if we are prevented from or delayed in performing our obligations under the Agreement due to circumstances beyond our reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, disease, epidemic, pandemic, 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.
10.5 All warranties, conditions, terms and liabilities express or implied, statutory or otherwise, on the part of us, which are not expressly set out in the Agreement are excluded to the fullest extent permitted by law.
You shall indemnify us against all losses, damages, expenses and costs (including reasonable legal expenses and costs) suffered or incurred by us arising out of or in connection with your failure to use the Software in accordance with the terms or conditions of the Agreement (including Clauses 4, 5 and 6).
12.1 We may terminate the Agreement:
(a) without cause by giving you notice of such termination to take place immediately or when we specify;
(b) on immediate notice if we consider that you have breached any of the terms and/or conditions of the Agreement.
12.2 The Agreement will automatically terminate if you receive the right to use the Software (alone or together with other software and/or services) as a result of:
(a) your employer or another organisation that you undertake work for entering into an agreement with us;
(b) you entering into a separate licence agreement with us.
12.3 You may terminate the Agreement with immediate effect by giving notice of such termination to us, if we commit a material breach of any of the terms of the Agreement and either that breach is not capable of remedy or, if the breach is capable of remedy, we fail to remedy that breach within 30 days of being notified of the breach by you.
12.4 On termination of the Agreement for any reason:
(a) the rights granted under Clause 4 shall immediately terminate;
(b) you shall return and make no further use of any of our equipment, property, documentation and other items (and all copies of them); and
(c) any of our and your rights, remedies, obligations or liabilities that have accrued up to the date of termination shall not be affected or prejudiced.
12.5 Upon termination access to the Software (including your portfolio and uploaded information) pursuant to the rights granted to you under the Agreement will cease within 48 hours of termination. You shall be responsible for ensuring that you take up to date copies of any of the information required.
12.6 Notwithstanding Clause 12.5 and subject to any and all of your rights under data protection laws (including as set out in our privacy notice referred to in Clause 14), after termination of the Agreement we may continue to store data uploaded by you into the Software or otherwise created by you prior to such termination. Any such storage is done with the intention of facilitating potential future access by you of such data to assist with your ongoing professional development if in the future you receive the right to use the Software (alone or together with other software and/or services) under the circumstances set out in Clauses 12.2(a) or 12.2(b) or as a result of you subsequently entering into an agreement with us similar to the Agreement.
12.7 Termination of the Agreement shall not affect the continuance in force of any provision in the Agreement which expressly or by implication is intended to come into or continue in force after termination.
13.1 You shall hold in confidence all information (whether written, oral or in electronic form) concerning our business, finances, technology and/or affairs that you obtain or receive as a result of entering into or the performance of the Agreement (Confidential Information).
13.2 You shall not disclose to any third party, without our prior express written permission, any of our Confidential Information.
13.3 Without prejudice to our other rights, in the event of an unauthorised disclosure or use of our Confidential Information occurring directly or indirectly through disclosure made to you, you shall (as soon as you become aware of the same) notify us of such unauthorised disclosure and use all reasonable endeavours to assist us in recovering and preventing the use of, dissemination, sale or other disposal of such Confidential Information.
14.1 Where we process your personal data in connection with the Agreement, we do so as controller (as defined under data protection laws applicable from time to time in the United Kingdom).
14.2 We will collect and use your personal data in accordance with our privacy notice as found on our website from time to time https://www.blueskyeducation.co.uk/privacy
15.1 Note that any notice:
(a) given by us to you will be deemed received and properly served 24 hours after it is first posted on our website, 24 hours after an email is sent, or three days after the date of posting of any letter; and
(b) given by you to us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.
(c) in the case of Atkey must be marked “For the attention of the Managing Director”.
15.2 In proving the service of any notice, it will be sufficient to prove, in the case of posting on our website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.
16.1 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
16.2 References to regulations, statutes or other statutory provisions shall be construed to include references to those regulations, statutes or provisions as amended, re-enacted or modified from time to time and shall include any subordinate legislation under the relevant statute or statutory provision.
16.3 The headings in these terms are for ease of reference only and shall not in any way affect their construction or interpretation.
16.4 Words denoting the singular include the plural and vice versa; words denoting any one gender include all genders and vice versa, and reference to a person shall include an individual, partnership, body corporate and unincorporated association.
16.5 We may at any time assign, transfer, charge or deal in any other manner with any of our rights or obligations hereunder, and may sub-contract any or all of our obligations under the Agreement.
16.6 You shall not assign, transfer, charge, hold on trust for another or deal in any other manner with any of your rights or obligations under the Agreement, or purport to do so, or sub-contract any or all of your obligations under the Agreement without our prior written consent in our absolute discretion.
16.7 Any failure to exercise or delay by a party in exercising a right or remedy arising in connection with the Agreement shall not constitute a waiver of such right or remedy or of any other rights or remedies.
16.8 If any provision of the Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provision in question shall not be affected thereby. If the whole or any part of any Clause(s) are invalid or unenforceable the parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision. Any such invalidity or enforceability shall not affect the validity or enforceability of any other provision.
16.9 A person who is not a party to the Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
16.10 The Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreements or understandings between the parties with respect to the arrangements contemplated by the Agreement.
16.11 Each party acknowledges and agrees that:
(a) in entering into the Agreement it does not rely on and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made) or understanding of any person (whether party to the Agreement or not) which is not expressly set out in the Agreement; and
(b) no party shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement, representation, warranty or other term which is expressly set out in the Agreement.
17.1 The Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales and you and we submit to the exclusive jurisdiction of the courts of England and Wales in respect of the same. In the event of any dispute or claim arising out of or in connection with the Agreement the matter shall in the first instance be referred to our Operations Director. They and you shall seek to resolve such dispute promptly by negotiation.