FolensHIVE User Terms of Use

Folens Publishing Company Unlimited Company (“Folens”) is a registered company at Hibernian Industrial Estate, Greenhills Road, Tallaght, Dublin 24.

Please read these User Terms and Conditions carefully before accessing or using the Software. By using the Software, the Authorised User agrees to accept a Licence to access and use the Software on these User Terms and Conditions, which are thereby accepted in full.

TERMS:

1. INTERPRETATION

1.1 In these User Terms and Conditions (including the Schedules) the following words and expressions shall have the following meanings unless the context requires otherwise:

"Authorised Users" the Licensee and all employees and students of the Licensee who have completed the Registration Process and who comply with Clause 3.5;

"Content" any content of the Licensor accessible through the use of the Software;

"Data Protection Legislation" legislation and regulations relating to the use, processing and protection of data relating to living individuals, including (without limitation) the European Union General Data Protection Regulation 2016/679;

"Digital Order Confirmation Form" the digital order confirmation form submitted to the Licensor by the Licensee in connection with the Licence (if applicable);

"Effective Date" the commencement date of the License, as set out in the Digital Order Confirmation Form (if applicable);

"Fees" the fees (if any) for the Licence set out in the Digital Order Confirmation Form (if applicable);

"Complimentary Licence" a licence to use the Software on a no-fee basis;

"Intellectual Property Rights" patents, copyrights (including source code), registered and unregistered design rights, trademarks, trade secrets, know-how, database rights and all other similar or corresponding proprietary rights (whether registered or unregistered) and all applications for the same, anywhere in the world;

"Licence" the licence granted by the Licensor to the Licensee under these User Terms, being either a Complimentary Licence or Paid Licence, as set out in the Digital Order Confirmation Form (if applicable);

“Licensee” as set out in Schedule 1;

“Licensor” Folens Publishing Company Unlimited Company;

"Paid Licence" a licence to use the Software and Content on a fee-paying basis;

"Registration Process" the registration process to be completed at www.folenshive.ie (or bulk registration as Authorised Users may be requested of the Licensor by a distributor or school administration);

"Service Levels" during the Term, the standard service and support levels of the Licensor / TP Providers from time to time, as further detailed in Schedule 1;

"Software" the Licensor’s proprietary digital platform and associated software (including but not limited to FolensHIVE), web applications and APIs, including the Content

"Term" as set out in Digital Order Confirmation Form or, if not applicable, as set out in Schedule 1;

"TP Providers" third party system providers to the Licensor who host and support the Software; and

"User Terms" these user terms and conditions.

1.2 References to clauses herein are to clauses of these User Terms.

1.3 These User Terms shall be governed by and construed in accordance with the laws of Ireland and the Licensor and the Authorised User submit to the exclusive jurisdiction of the Irish courts in relation to all disputes or matters affecting or relating to the Licence.

2. COMMENCEMENT

The Licence shall be deemed to have commenced on the Effective Date and the parties' rights and obligations under the Licence shall be deemed to accrue from that date.

3. LICENCE

3.1 Subject to the terms of the Licence, the Licensor hereby grants to the Authorised User a non-exclusive, non-transferable, non-sublicensable licence to use the Software and Content for the Term.

3.2 The Authorised User has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part, or to copy, delete, reproduce, republish, modify, adapt, upload, post, transmit or distribute Content, save in accordance with these User Terms.

3.3 The Authorised User may access and use the Software and Content held within it solely for educational purposes. The Authorised User may not or use information for any unauthorised purpose as this is a violation of the Licensor’s Intellectual Property Rights.

3.4 Each Authorised User shall complete the Registration Process and shall have its own individual user account. Authorised Users shall provide only accurate, complete registration information, and shall agree to notify the Licensor of any changes to that information. Authorised Users must register using their real name and email address. Access to the Software and Content is not authorised by any other person or entity using those registration details (i.e. they shall not be shared) and the Licensee and Authorised User shall be responsible for preventing such unauthorised use and for all activity occurring under those registration details and account. Authorised Users shall abide by applicable laws, rules and regulations in connection with their use of the Software and Content, including Data Protection Legislation.

4. CONTENT

4.1 Content shall be provided in two formats:

4.1.1 Read-only protected Content, which shall be accessed exclusively via the Software. This Content may not be downloaded (otherwise than as provided for), printed, hacked, disassembled or otherwise reverse engineered; and

4.1.2 Downloadable editable Content, which shall only be used by the Authorised User. It shall not be shared with other persons, teachers, classes or schools.

4.2 It is a condition to use of the Software and / or Content that the Licensor may monitor the use of the Software by the Licensee and / or Authorised Users for compliance and market research purposes.

5. SECURITY AND SYSTEMS

5.1 Access to the Software is provided on the basis of your system meeting the minimum and recommended system requirements set out at support.folens.ie. Use of the Software on systems not meeting these standards is undertaken at the users own risk; the Licensor does not warrant that the Software will operate correctly or fully.

5.2 It is the responsibility of the Licensee and (if applicable) the Authorised User to ensure that their devices through which the Software is accessed are secure, patched and updated in line with industry best practice.

5.3 The Licensor strives to keep the Software secure [, but, given the nature of the Internet, cannot guarantee that we will be successful at doing so]. The Licensor strongly encourages you, where available and appropriate, to (a) use encryption technology to protect your devices and in particular Personally Identifiable Information (as defined in the Data Protection Legislation), (b) routinely archive your content, and (c) keep your devices and systems current with the latest security patches or updates. The Licensor shall not be responsible for breaches which occur due to flaws or breaches on end-user devices or by reason of unsecure passwords or credentials.

6. OWNERSHIP OF THE SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS

6.1 The Authorised User acknowledges that all Intellectual Property Rights: (i) in the Software belong to the Licensor; and (ii) in the Content belong to the Licensor (or its third-party licensors). The Authorised User has no rights in or to the Software other than the right to use it in accordance with these User Terms and the terms of Licence and will not at any time do, or cause to be done, any act or thing which impairs or infringes these Intellectual Property Rights.

6.2 The Licensor shall retain copyright in and to the Software and no title to the Software or Content passes under this Licence.

6.3 The Authorised User is not permitted to remove or amend any trademark, copyright or other proprietary notice on the Software or any Content. You acknowledge that all rights in, and to, all copyrights, know-how and other intellectual property rights relating to our products are and shall remain our property (or the property of our third-party licensors).

6.4 The Licensor shall indemnify and keep indemnified the Authorised User against all claims, actions and proceedings brought against and all costs, damages, liabilities and expenses incurred by the Authorised User arising from any claim or action that the possession, use, development, modification or maintenance of the Software infringes the Intellectual Property Rights of a third party provided that the Authorised User:

6.4.1 on becoming aware of the same shall promptly give notice of it to the Licensor;

6.4.2 makes no admission of liability without the Licensor’s written consent;

6.4.3 allows the Licensor to have sole conduct and control of the defence and any related settlement negotiations.

6.5 The Licensor shall be entitled (without prejudice to any rights or remedies the Authorised User may have) at its own cost to replace or modify any infringing material so that it becomes non-infringing.

7. WARRANTIES

7.1 The Licensor hereby warrants and undertakes that:

7.1.1 the Licensor has the full power and authority to execute, deliver and perform its obligations under the Licence;

7.1.2 it has used all reasonable endeavours to ensure that the Software is free from harmful code of any description, including any computer code, programming instruction, or set of instructions that is intentionally constructed to damage, interfere with or otherwise adversely affect computer programs and/or datafiles and/or hardware and/or computer systems and/or networks; and

7.1.3 it has all necessary rights and consents to license the Software to the Authorised User in accordance with these User Terms and the Licence.

7.2 The Software is licensed on an “as available” and “as is” basis and the Licensor makes no warranties or representations, whether express of implied, in relation to the Software, including but not limited to implied warranties of conditions of completeness, accuracy, quality of fitness for any particular purpose.

8. SUPPORT AND SERVICE LEVELS

8.1 From the Effective Date and throughout the Term the Licensor shall use all reasonable endeavours to provide support in line with the Support Levels. The Licensor shall use all reasonable endeavours to ensure that the Software and the Content are available during the School Year, though the parties recognise and agree that the Software will require maintenance from time to time and may be unavailable during such period.

8.2 From the Effective Date and throughout the Term the Licensor shall use all reasonable endeavours to procure that relevant TP Providers provide all necessary technical and infrastructure resources to amend the Software in the case of a dysfunction notified by the Authorised User.

8.3 From the Effective Date and throughout the Term, the Licensor shall use all reasonable endeavours to procure that relevant TP Providers provide, via the Licensor, support and maintenance for the Software in accordance with the Service Levels.

8.4 Disclaimer for TP Providers actions – e.g. - The Authorised User acknowledges that the Software is hosted by TP Providers and, accordingly, the Licensor shall have no liability for any failure by the TP Providers to provide uninterrupted access to the Software. The platform and/or services provided by the TP Providers are licensed/sublicensed on an “as available” and “as is” basis and neither the Licensor nor the TP Provider makes any warranties or representations, whether express of implied, in relation to such platform and/or services, including but not limited to implied warranties of conditions of completeness, accuracy, quality of fitness for any particular purpose.

9. CONFIDENTIALITY AND DATA PROTECTION

9.1 Each party (the "Recipient") shall keep secret and not disclose to anyone without the prior written consent of the other party ("Disclosing Party") any information received from or belonging to the Disclosing Party. This Clause 8.1 shall not apply:

9.1.1 to any information which has become, or which becomes either before, on or after the date of this Agreement generally and freely available through no fault of the Recipient;

9.1.2 to any information which the Recipient can otherwise show came into its possession without it owing a duty of confidence to the Disclosing Party in respect of such information; or

9.1.3 to the extent the disclosure is required to or by any court, tribunal or government authority of competent jurisdiction.

9.2 If as a result of the Licence the Licensor is required to process personal data supplied to it by the Authorised User, then the Licensor will:

9.2.1 process such personal data in accordance with Data Protection Legislation;

9.2.2 implement appropriate technical and organisational measures to protect such personal data against accidental or unlawful destruction or loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing; and

9.2.3 forward any request to access, correct or cease processing personal data to the Authorised User within 7 days of receipt.

9.3 The Authorised User (or parents of the Authorised User) shall be responsible for ensuring that active consent to collect, control and / or process personal data has been provided by (and remains valid) whomever holds parental responsibility for such Authorised User.

10. LIABILITY

10.1 Save to the extent excluded by law, the Licensor and the Authorised User shall in no circumstances be liable for any consequential, indirect or special loss or damage (including without limitation loss of business or loss of profit) howsoever arising whether in contract negligence, other tort or otherwise.

10.2 Save to the extent excluded by law, the total aggregate liability of the Authorised User or the Licensor, whether in contract, tort or otherwise in connection with the Licence, shall in no circumstances exceed €100.

11. TERM, TERMINATION AND CONSEQUENCES OF TERMINATION

11.1 The Licence shall continue from the Effective Date for the Term, subject to extension / renewal thereafter by mutual agreement.

11.2 The Licensor shall have the right to terminate this Agreement if:

11.2.1 the Licence, Software or Content has been used by a person or entity other than the Licensee or an Authorised User;

11.2.2 in respect of the Complimentary Licence, if the Authorised User cannot provide proof of purchase of Folens educational materials; or

11.2.3 in respect of the Paid Licence, if Fees have not been paid in accordance with the payment terms set out in the Digital Order Confirmation Form.

11.3 Either party shall have the right to terminate this Agreement forthwith on written notice to the other if such other:

11.3.1 suffers an insolvency type event, including:

(a) passes a resolution or the Court makes an order for its winding up;

(b) has a receiver, administrative receiver or administrator appointed over its undertaking or over any of its assets;

(d) takes or suffers any analogous action on account of debt; or

(e) ceases or threatens to cease to carry on business; or

11.3.2 shall have committed a material breach of any of its obligations under the Licence and in the case of a breach capable of remedy shall not have remedied such breach within 30 days of receiving notice from the first mentioned party detailing the breach and requiring its remedy within such 30 day period.

Either party shall notify the other in writing as soon as any event justifying termination under Clause 12.2 occurs.

11.4 Termination of the Licence howsoever arising shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination. Clauses 4, 6, 7, 9 and 10 shall survive the termination of the Licence.

11.5 On termination of this Agreement howsoever arising, each party shall (except as otherwise agreed) promptly deliver up all documentation and other materials in its possession or under its control and belonging to the other party and access to the Software shall be immediately terminated.

12. GENERAL

12.1 Assignment: The Licence is personal to the Authorised User. The Authorised User shall not assign, novate, sub-license, sub-contract or otherwise dispose of the Licence or any part thereof without the prior written consent of the Licensor.

12.2 Waiver: No forbearance, delay or granting of time by either party in or before enforcing these User Terms shall prejudice its rights. No waiver of any right or breach of these User Terms shall be effective unless in writing and signed by the party making the waiver. Any such waiver shall not be construed as a waiver of any other right or breach.

12.3 Entire Agreement: The Specific Terms and these User Terms supersede all prior agreements and arrangements of whatever nature and sets out the entire agreement and understanding between the parties relating to the Licence and shall apply in place of, and prevail over, any terms or conditions contained or referred to in correspondence or elsewhere or implied by trade custom or course of dealing and any purported contrary or inconsistent provision is hereby excluded.

12.4 Variation: Any variation to the Specific Terms and these User Terms shall only be effective if in writing and signed by (or by persons duly authorised by) the Licensor and the Authorised User.

12.5 No Partnership etc.: Nothing in these User Terms shall create a partnership or joint venture between the parties.

Schedule 1

User Type / Licensee	Paid for or complimentary licence	Support / how long?
Teacher	Paid for	Refer to SLA
Teacher	Complimentary	Best efforts support for at least 5 years from date of publishing the resource. In event of unforeseen tech issues, we reserve the right to remove resource
Student	Paid for	Based on length of licence purchased
Student	Complimentary	3 years

These User Terms and Conditions are reviewed on a regular basis and were last updated on 20th February 2020.