Software Licence Agreement
Folens Publishing Company Unlimited Company (“Folens”) is a registered company at Hibernian Industrial Estate, Greenhills Road, Tallaght, Dublin 24.
1.1 In these General Terms (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;
"Effective Date" the date of the Digital Order Confirmation Form;
"Fees" the fees (if any) for the Licence set out in the Digital Order Confirmation Form;
"General Terms" the general terms and conditions of this software licence agreement;
"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 General Terms, as further detailed in the Digital Order Confirmation Form;
“Licensee” as set out in the Digital Order Confirmation Form;
“Licensor” Folens Publishing Company Unlimited Company;
"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);
“School Year” the period from 15 August or the Commencement Date, whichever is later, until the next occurring 15 July;
"Service Levels" during the Term, the standard service and support levels of the Licensor / TP Providers;
"Software" the Licensor’s proprietary digital platform and associated software (including but not limited to FolensHIVE), web applications and APIs, including the Content;
"Term" the term of this Licence as set out in the Digital Order Confirmation Form; and
"TP Providers" third party system providers to the Licensor who host and support the Software.
1.2 References to clauses herein are to clauses of these General Terms.
1.3 These General Terms shall be governed by and construed in accordance with the laws of Ireland and the Licensor and the Licensee submit to the exclusive jurisdiction of the Irish courts in relation to all disputes or matters affecting or relating to the Licence.
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.
3.1 The Licensor hereby grants to the Licensee a non-exclusive, non-transferable, sublicensable (to Authorised Users) licence to use the Software and Content for the Term.
3.2 The Licensee shall only allow access to the Software by its Authorised Users.
3.3 The Licensee 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 general Terms.
3.4 The Licensee may access and use the Software and Content held within it solely for educational purposes. The Licensee may not or use information for any unauthorised purpose as this is a violation of the Licensor’s Intellectual Property Rights.
3.5 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 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.
4.1 The Fees payable by the Licensee shall be as set out in the Digital Order Confirmation Form. The Fees shall be payable at the times and in the manner set out in the invoice issued by the Licensor to the Licensee.
4.2 All payments stated in the Digital Order Confirmation Form are (unless stated otherwise) inclusive of applicable taxes, which shall be added to the Licensor’s invoices at the rate applicable at the time of invoicing.
5.1 Content shall be provided in two formats:
5.1.1 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
5.1.2 Downloadable editable Content, which shall only be used with a Licensee’s class(es) of students. It shall not be shared with other persons, teachers, classes or schools.
5.2 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.
6. SECURITY AND SYSTEMS
6.1 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.
6.2 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.
6.3 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.
7. OWNERSHIP OF THE SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS
7.1 The Licensee 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 Licensee has no rights in or to the Software other than the right to use it in accordance with these General Terms and will not at any time do, or cause to be done, any act or thing which impairs or infringes these Intellectual Property Rights.
7.2 The Licensor shall retain copyright in and to the Software and no title to the Software or Content passes under this Licence.
7.3 The Licensee 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).
7.4 The Licensor shall indemnify and keep indemnified the Licensee against all claims, actions and proceedings brought against and all costs, damages, liabilities and expenses incurred by the Licensee 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 Licensee:
7.4.1 on becoming aware of the same shall promptly give notice of it to the Licensor;
7.4.2 makes no admission of liability without the Licensor’s written consent;
7.4.3 allows the Licensor to have sole conduct and control of the defence and any related settlement negotiations.
7.5 The Licensor shall be entitled (without prejudice to any rights or remedies the Licensee may have) at its own cost to replace or modify any infringing material so that it becomes non-infringing.
8.1 The Licensor hereby warrants and undertakes that:
8.1.1 the Licensor has the full power and authority to execute, deliver and perform its obligations under the Licence;
8.1.2 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
8.1.3 it has all necessary rights and consents to license the Software to the Licensee in accordance with these General Terms.
8.2 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.
9. SUPPORT AND SERVICE LEVELS
9.1 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.
9.2 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 Licensee.
9.3 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.
9.4 Disclaimer for TP Providers actions. The Licensee 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.
10. CONFIDENTIALITY AND DATA PROTECTION
10.1 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 10.1 shall not apply:
10.1.1 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;
10.1.2 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
10.1.3 to the extent the disclosure is required to or by any court, tribunal or government authority of competent jurisdiction.
10.2 If as a result of the Licence the Licensor is required to process personal data supplied to it by the Licensee, then the Licensor will, in order to perform its contractual obligations:
10.2.1 act in the capacity of data processor, with Licensee acting in the capacity of data controller;
10.2.4 on termination for any reason or expiry of the Term, securely delete or destroy or, if directed in writing by the Licensee, return and not retain, all or any personal related to these General Terms in its possession or control, except for one copy that it may retain and use for 5 years for audit purposes only;
10.2.5 permit the Licensee and its third-party representatives to audit the Licensor's compliance once with these General Terms, on at least 30 days' notice, during the Term;
10.2.6 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
10.2.7 forward any request to access, correct or cease processing personal data to the Licensee within 7 days of receipt.
10.3 The Licensee 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.
10.4 The Licensee warrants are represents that all personal data provided is and will be accurate, correct and valid.
10.6 The Licensee will reasonably assist the Licensor in meeting its obligations under the Data Protection Legislation.
10.7.1 the Licensee provides prior written consent prior to the appointment of each subcontractor or is provided with an opportunity to object to the appointment of each subcontractor within 5 days after the Licensor supplies the Licensee with notice of same and Licensor enters into a written contract with the subcontractor that contains terms substantially the same as those set out in these General Terms (as they pertain to data protection only), in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon the Licensee's written request, provides the Licensee with copies of such contracts;
10.7.2 the Licensor maintains control over all personal data it entrusts to the subcontractor; and
10.7.3 the subcontractor's contract terminates automatically on termination of the contract between Licensor and License for any reason.
10.8 The Licensee hereby indemnifies and agrees to keep indemnified and hold harmless the Licensor against all claims, actions and proceedings brought against and all costs, damages, liabilities and expenses incurred by the Licensor arising from any claim or action in respect of a breach of Data Protection Legislation (save where caused by the negligence or wilful default of Licensor); for the avoidance of doubt, including in a breach of clause 10.3.
11.1 Save to the extent excluded by law, the Licensor and the Licensee 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.
11.2 Save to the extent excluded by law, the total aggregate liability of the Licensee or the Licensor, whether in contract, tort or otherwise in connection with the Licence, shall in no circumstances exceed the amount of Fees paid by the Licensee in the 12 months preceding any claim.
12. TERM, TERMINATION AND CONSEQUENCES OF TERMINATION
12.1 The Licence shall continue from the Effective Date for the Term, subject to extension / renewal thereafter by mutual agreement.
12.2 The Licensor shall have the right to terminate this Agreement if:
12.2.1 the Licence, Software or Content has been used by a person or entity other than the Licensee or an Authorised User;
12.2.2 if Fees have not been paid in accordance with the payment terms set out in the corresponding invoice.
12.3 Either party shall have the right to terminate this Agreement forthwith on written notice to the other if such other:
12.3.1 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;
(c) is or becomes insolvent under laws applicable to that party;
(d) takes or suffers any analogous action on account of debt; or
(e) ceases or threatens to cease to carry on business; or
12.3.2 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.
12.4 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 5, 7, 8, 10 and 11 shall survive the termination of the Licence.
12.5 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.
13.1 Assignment: The Licence is personal to the Licensee. The Licensee shall not assign, novate, sub-license (other than to Authorised Users), sub-contract or otherwise dispose of the Licence or any part thereof without the prior written consent of the Licensor.
13.2 Waiver: No forbearance, delay or granting of time by either party in or before enforcing these General Terms shall prejudice its rights. No waiver of any right or breach of these General 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.
13.3 Entire Agreement: The Specific Terms and these General 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.
13.4 Variation: Any variation to the Specific Terms and these General Terms shall only be effective if in writing and signed by (or by persons duly authorised by) the Licensor and the Licensee.
13.5 No Partnership etc.: Nothing in these General Terms shall create a partnership or joint venture between the parties.
Last updated on 20th April 2021