WICKED MATHS TERMS AND CONDITIONS
Updated on: 23rd January 2020
Effective from: 23rd January 2020
These Terms (defined below) govern your use of WICKED MATHS (defined below). They override any other terms and conditions found on the WICKED MATHS website.
In consideration of making WICKED MATHS available to you, you agree to accept these Terms.
You should print a copy of these Terms or save them to your computer for future reference.
- INTERPRETATION
1.1 In these Terms, unless the context otherwise requires, the following expressions shall have the following meanings:
Authorised User means you, the individual who is (as the case may be): (i) a teacher or a member of staff engaged by an Individual; (ii) a student enrolled at an Individual; or (iii) the Parent of a student enrolled at an Individual and “the Authorised User” means the relevant Authorised User.
Extended Membership Period means Extended Membership Period as defined in Clause 10
Fees mean the relevant Product fees payable by the Individual to access the Product on WICKED MATHS.
Initial Membership Period means the period set out in the Product Specific Term during which the Product is accessible by you.
Intellectual Property Rights mean all patents, rights to inventions, copyright and related rights, trade-marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, database right, topography rights, moral rights, rights in confidential information (including knowhow and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Membership Period means the Initial Membership Period and all Extended Membership Periods that relate to the Product.
Individual means the student, engaged in the field of education that is granted access to WICKED MATHS by WICKED MATHS, and who has purchased the Product from WICKED MATHS.
WICKED MATHS means WICKED MATHS’s WICKED MATHS online learning platform.
WICKED MATHS, we, us, or our means or mean (as the context requires) Wicked Maths an Independent Education Individual.
Personal Data means information about an individual person that can identify that individual person (e.g. name, email address or age).
Product means the WICKED MATHS product purchased by an Individual for personal use, accessed and used via WICKED MATHS.
Product Specific Terms means the package/membership and usage terms and conditions relating to the Product.
Software means the software provided by us or our licensors which enables You to use and access WICKED MATHS and the Product via WICKED MATHS.
Terms mean these terms and conditions.
User Materials mean any content and/or materials uploaded onto WICKED MATHS by You which are not licensed by WICKED MATHS to you.
You or Your means the Individual or their nominee, unless the context requires otherwise in which case, “You” or “Your” will mean the Individual.
1.1 Headings in these conditions shall not affect their interpretation.
1.2 Words importing any gender shall include any other gender.
1.3 Words importing the singular number shall include the plural number and vice versa including the definitions referred to in Clause 1.1 hereof.
1.4 Where any word or expression is defined in these Terms, the definition shall extend to all grammatical variations and cognate expressions of the word or expression so defined.
1.5 All references to provisions of statutes include such provisions as amended, modified or re-enacted.
1.6 The Individual shall procure that they, or their nominee (nominated individual) complies with the provisions of these Terms. The Individual shall be liable for any breach of these Terms by its Nominated User as though the breach was committed by the Individual.
- MEMBERSHIP
2.1. In consideration of the Fees paid by the Individual to WICKED MATHS, WICKED MATHS grants to You, an exclusive licence to access and use the Product via WICKED MATHS during the Licence(Membership) Period. In this regard, You are entitled to use the Software (in object code form) to access the Product and to use WICKED MATHS as part of the Individual’s internal learning tools and learning resources.
2.2. Notwithstanding Clause 2.1, You must not:
2.2.1. sub-license or assign the benefit or burden of the licence set out in Clause 2.1 in whole or in part to anyone;
2.2.2. attempt to duplicate, modify, disclose or distribute any portion of the Software;
2.2.3. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Software, except as is allowed by any applicable law which is incapable of exclusion by agreement between WICKED MATHS and you;
2.2.4. transfer, temporarily or permanently, any rights or obligations under these Terms; or
2.2.5. attempt to obtain, or assist others in obtaining access to the WICKED MATHS, the Software, and the Product other than as provided under Clause 2.
2.3. You grant and You shall procure that Your licensors’ grant to WICKED MATHS, a perpetual, irrevocable, non-exclusive, sub-licensable licence to use Your User Materials for WICKED MATHS’s business purposes including the right to host Your User Materials for You. The foregoing licence includes the right to make copies of Your User Materials, issue copies of User Materials, rent or lend Your User Materials, perform, show or play Your User Materials in public (including over the internet), communicate Your User Materials, and to adapt Your User Materials. In addition, You irrevocably and unconditionally waive in favour of WICKED MATHS, all moral rights conferred on You by Chapter IV, Part 1, Copyright Designs and Patents Act 1988 and any other moral rights provided for under the laws now or in force in any part of the world for all Your User Materials which You licence to WICKED MATHS. For the avoidance of doubt, this Clause 2.3 shall remain in force even after Your access to WICKED MATHS and/or the Product has ceased for any reason.
- ACCESSING WICKED MATHS AND THE PRODUCT
3.1. You acknowledge that You will only be able to access the Product on WICKED MATHS during the Licence/Membership Period and that Your access and use of the Product will be governed by the Product Specific Terms. Without prejudice to the foregoing, You must not:
3.1.1. systematically make printed or electronic copies of content and/or materials in the Product for any purpose in either print or electronic format;
3.1.2. remove or alter the copyright notices or other means of identification or disclaimers as they appear in the Product;
3.1.3. display or distribute any part of the Product on any electronic network, including without limitation the Internet and the World Wide Web, where access is possible by anyone not an Authorised User;
3.1.4. permit anyone other than the Authorised Users to access or use the Product including any content and material making up the Product; and/or
3.1.5. use the Product or any part of the Product for any commercial use other than as teaching and learning resources within the Individual.
3.2. If you are purchasing the Product on behalf of your nominee, you warrant that you have the authority to do so and agree to the Product Specific Terms on behalf of you the Individual.
3.3. Your will need to appoint you as its Authorised User by creating a user account for you before you can access WICKED MATHS.
3.4. To access and use the Product, You will need to log into Your WICKED MATHS account using the relevant login details.
3.5. Subject to earlier termination pursuant to these Terms, Your access to WICKED MATHS will cease when the Licence Period/Membership Period for the Product expires.
- YOUR OBLIGATIONS
4.1. The Individual is responsible for the selection of the Product it purchases and whether the Product meets its and its Authorised User’s requirements.
4.2. You agree not to make available Your username and/or password to anyone. If there has been a disclosure of Your username and/or password, You agree to notify us promptly of such disclosure, so that we can take appropriate security measures.
4.3. You undertake not to upload any User Materials onto WICKED MATHS or send and/or transmit to other Authorised Users, any content which is illegal, obscene, threatening, defamatory, discriminatory, promote illegal or unlawful activity, or be otherwise actionable or in violation of any rules, Intellectual Property Rights, regulations or laws to which such content is subject.
4.4. You are solely responsible for the accuracy, legality, and compliance with the relevant laws and regulations in respect of the content which You send to other Authorised Users and/or the User Materials that You upload onto WICKED MATHS. You acknowledge that we do not operate or exercise control over, and accepts no responsibility for the User Materials which You upload onto WICKED MATHS or transfer through WICKED MATHS.
4.5. If we suspect that a breach of Clauses 4.3, 4.4, 4.8, 4.10 and 7.3 have occurred or is likely to occur, we may, without giving notice and liability to You, remove Your User Materials and/or suspend Your access to WICKED MATHS and/or the Product.
4.7. You agree that You will promptly notify us of any errors or inaccuracies which relate to the Product. In this regards, please contact us using the “contact us” page at www.WICKED MATHS.com/contact-us/
4.8. You must not spam, download or upload excessive volume of content onto WICKED MATHS such that it may impair the performance of WICKED MATHS. You must not introduce any malicious codes or harmful element e.g. virus and Trojans onto WICKED MATHS.
4.9. Unless otherwise agreed in writing by WICKED MATHS, You are solely responsible for configuring Your computer devices in order to access WICKED MATHS and the Product, and to provide for Your own virus protection software. To access WICKED MATHS and the Product, Your computer device must meet the specification detailed [Minimum Specification].
4.10. You warrant that any Personal Data which You provide to WICKED MATHS complies fully with all relevant data protection laws and You agree to indemnify and keep WICKED MATHS indemnified against breach by You of such data protection laws.
4.11. The Individual agrees to indemnify and keep us indemnified for any losses, damages, fines arising from or which are connected to any breach by it and/or its Authorised Users of Clauses 4.3, 4.4, 4.8, 4.10 and 7.3.
- OUR OBLIGATIONS
5.1. We will:
5.1.1 use all reasonable endeavours to ensure that the Product and User Materials are accessible on WICKED MATHS;
5.1.2 provide the Individual and its Nominee (if applicable) with general login credentials.
5.1.3 (if we have agreed to do so in writing) provide You with training and help notes on how to use WICKED MATHS; and
5.1.4 in some instances, allow You to upload User Materials onto WICKED MATHS in respect of the Product during the relevant Licence/Membership Period.
- WITHDRAWAL OF PRODUCTS
6.1 We reserve the right at any time to withdraw the Product including any components within the Product (e.g. an activity) for any reason including:
6.1.1 if we no longer retain the right to publish such material; or
6.1.2 if in our sole discretion, we believe that such material may infringe the Intellectual Property Rights of third parties or is defamatory, obscene, unlawful or otherwise objectionable.
In the circumstances above, we shall notify the Individual of such withdrawal as soon as reasonably practicable.
6.2 On receipt of the notice referred to in Clause 6.1, the Individual shall promptly inform its Authorised Users and You agree to immediately cease all use of the withdrawn material and shall comply with our instructions with respect to the deletion and/or removal of such withdrawn material.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 As between You and WICKED MATHS, You acknowledge that WICKED MATHS and/or WICKED MATHS as licensors own all Intellectual Property Rights in WICKED MATHS, the Software and the Product. Except as expressly stated in these Terms and the Product Specific Terms, WICKED MATHS does not grant You any rights to or in any Intellectual Property Rights or any other rights or licences.
7.2 You warrant that the User Materials and any use by WICKED MATHS of the User Materials under Clause 2.3 will not infringe the Intellectual Property Rights of any third parties.
7.3 If You become aware of any Intellectual Property Rights infringement or potential Intellectual Property Rights Infringement involving WICKED MATHS, the Software and/or the Product (e.g. an unauthorised third party is using WICKED MATHS or if You get a letter from a third party stating that the Software infringes such third party’s Intellectual Property Rights) You must inform us promptly. We will:
7.3.1 in our absolute discretion, determine what action if any shall be taken in respect of the matter;
7.3.2 have sole control over and shall conduct any action as we deem necessary; and
7.3.3 pay all costs in connection with that action and we shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action. You agree to (at our cost) provide us with any assistance which we may request.
7.4 In the defence or settlement of a claim that WICKED MATHS, the Software and/or the Product infringes third party Intellectual Property Rights (‘Infringing Items’), we may at our discretion:
7.4.1 obtain for You the right to continue using the Infringing Items;
7.4.2 replace or modify the Infringing Items with equivalent items so that they become non-infringing; or
7.4.3 if such remedies are not reasonably available, withdraw the Infringing Items and we will refund any of the Fees paid by the Individual (less a reasonable sum in respect of the Individual’s and its Authorised Users’ use of the Infringing Items).
7.5 Clauses 7.3 and 7.4 set out Your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement of Intellectual Property Rights.
8 WARRANTIES
8.1 Subject to the other provisions in these Terms and to our right to carry out scheduled maintenance, during the period when You have access to WICKED MATHS, we warrant to the Individual that we will use reasonable endeavours to ensure that WICKED MATHS is available to the Individual.
8.2 We do not warrant that the use of WICKED MATHS and/or the Product will be uninterrupted or error-free. We may also carry out scheduled maintenance from time to time.
8.3 The Individual accepts responsibility for the selection of WICKED MATHS and the Product to achieve its intended results.
8.4 Except as expressly stated in these Terms, 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 WICKED MATHS, the Product and the Software which might otherwise be implied into, or incorporated in, these Terms whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
9 LIABILITY
9.1 This Clause 9 sets out the entire financial liability of WICKED MATHS (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to You including those arising from breach of contract, use made by You of WICKED MATHS, the Software and/or the Product, and representation, statement or tortious act or omission (including negligence) arising under or in connection with Your use of WICKED MATHS, the Software and/or the Product.
9.2 Nothing in these Terms excludes our liability for death or personal injury caused by our negligence; or for fraud or fraudulent misrepresentation.
9.3 Subject to Clause 9.2 we shall not be liable to You for any:
9.3.1 indirect, consequential and/or special loss or damage;
9.3.2 loss of profit (direct or indirect);
9.3.3 loss of revenue, loss of teaching time or loss of business (in each case whether direct or indirect);
9.3.4 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct or indirect);
9.3.5 loss of anticipated saving or loss of margin (in each case whether direct or indirect);
9.3.6 wasted management, operational or other time (in each case whether direct or indirect);
9.3.7 loss of any data, content and/or material (in each case, whether direct or indirect);
9.3.8 loss or damage arising out of any failure by us to keep full and up to date back-ups and security copies of any User Materials; and/or
9.3.9 liability of any of the other parties to third parties (whether direct or indirect),
arising out of or in connection with these Terms and/or in connection with Your use of WICKED MATHS, the Software and/or the Product, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including (without limitation) by negligence and also including (without limitation) any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of our obligations under these Terms.
9.4 Subject only to Clause 9.2 but without prejudice to Clause 9.3, our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the Fees paid You to us during the 12 months preceding the date on which the claim arose or £5000 (whichever higher). You acknowledge that this limitation is reasonable.
9.5 As Product are purchased by the Individual and made available by the Individual to its Authorised Users, you as an Authorised User of your Individual, irrevocably agree not to bring or threaten to bring any claims or proceedings directly against WICKED MATHS. Any claims, proceedings, problems, dissatisfaction or issues which you have should be brought or raised directly with your Individual. If any Authorised Users bring or threaten to bring any claims or proceedings against WICKED MATHS, the Individual shall indemnify and keep WICKED MATHS indemnified against any costs, losses, damage and/or expenses incurred by WICKED MATHS.
10 TERM AND TERMINATION
10.2 Without prejudice to any rights which have accrued under these Terms, You or WICKED MATHS may terminate these Terms if the other party:
10.2.1 is in material breach of any of its obligation under these Terms and if such breach is remediable, fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
10.2.2 is made bankrupt, is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or if the other party ceases or threatens to cease to trade, or if the other party makes an assignment for the benefit of, or a composition with its creditors or other arrangement of similar import or has a receiver, administrative receiver, administrator or a similar officer appointed over all or a substantial part of its assets, or if a petition is passed or an order is made by a court of competent jurisdiction or resolution is passed for the winding up of the other party (other than for the purpose of a bona fide solvent reconstruction or amalgamation) or any similar circumstances arise in any jurisdiction.
11 EFFECT OF TERMINATION
11.1 On expiry or termination of these Terms or Your right to use WICKED MATHS for any reason and subject to any express provisions set out elsewhere in these Terms:
11.1.1 all outstanding sums payable by the Individual to WICKED MATHS shall immediately become due and payable;
11.1.2 all rights and licences granted to You to use the Software and WICKED MATHS to these Terms shall cease; and
11.1.3 You shall, return and/or destroy all copies of the Product and content made available by WICKED MATHS to You on WICKED MATHS as may be advised by WICKED MATHS to You. If requested by WICKED MATHS, the Individual will certify to WICKED MATHS that this obligation has been complied with by it and its Authorised Users.
11.2 The accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
11.3 If your access to the Product ceases (e.g. the Licence Period has expired), You will no longer be able to access the Product and/or Your User Materials that are associated to that Product and WICKED MATHS reserves the right to delete your account and all content associated to your account including where applicable, any Your User Materials.
12 FORCE MAJEURE
12.1 We will have no liability to You if we are prevented from, or are delayed in performing our obligations due to any circumstances and/or reasons which are outside of our control. These circumstances and reasons include strikes, lock-outs or other industrial disputes (whether involving the workforce of WICKED MATHS or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, sanctions, accident, breakdown of plant or machinery, fire, flood, storm, default of suppliers or subcontractors and/or non-performance of any services by WICKED MATHS’s suppliers, banks or subcontractors.
13 MAINTENANCE
13.1 If You are unable to access WICKED MATHS, You must first ascertain whether the inability to access WICKED MATHS is caused by a failure on the part of Your device. If the fault lies with WICKED MATHS and not Your device, You must:
13.1.1 where You are an Authorised User which has not been appointed by Your Individual to act as its nominated representative to interact with WICKED MATHS, inform Your Individual’s nominated representative immediately and he/she will notify WICKED MATHS; and
13.1.2 where You are Your Individual’s nominated representative, contact WICKED MATHS promptly using the following details:
WICKED MATHS Team,
Email: info@WICKED MATHS.co.uk
Telephone: +44 (0) 78435 77794
13.2 Upon receiving Your nominated representative’s report, WICKED MATHS shall use reasonable endeavours to resolve and rectify the problem to allow You to access WICKED MATHS.
13.3 Where it is subsequently established that the fault does not lie with WICKED MATHS but with Your device or Your internet services, we reserve the right to charge the Individual a reasonable administrative fee.
14 NOTICES
14.1 All notices to be given under these Terms shall be in writing and shall either be delivered personally or sent by courier and shall be deemed duly served:
14.1.1 in the case of a notice delivered personally, at the time the same is left at the address of, or handed to a representative of, the party to be served; and
14.1.2 in the case of courier, two clear business days after the date of despatch.
15 GENERAL PROVISIONS
15.1 These Terms constitutes the whole agreement between WICKED MATHS and You and supersedes all previous agreements between WICKED MATHS and You relating to Your use of WICKED MATHS. Nothing in these Terms shall limit or exclude any liability for fraud.
15.2 We may amend these Terms from time to time. If we have to revise these Terms, we will give You at least one month’s written notice of any changes to these Terms before they take effect. If You do not wish to accept the changes, You can choose to cancel the contract in respect of the Product and we will refund You any portion of the Fees paid by You (less a reasonable sum in respect of the Individual’s and its Authorised Users’ use of the Product).
15.3 A waiver of any right under these Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
15.4 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.5 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the
commercial intention of the parties.
15.6 To the extent that it is applicable and legally enforceable, in the event of any inconsistencies between the provisions set out in these Terms and those in the terms and conditions governing the purchase of the Product from WICKED MATHS, the parties agree that the provisions in these Terms will prevail.
16 GOVERNING LAW AND JURISDICTION
16.1 These Terms and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
16.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and/or Your use of WICKED MATHS and the Software.
16.3 Notwithstanding Clauses 16.1 and 16.2, nothing in these Terms shall limit the right of WICKED MATHS to take proceedings against You in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
16.4 Without prejudice to clauses 16.1 to 16.3, if you are a consumer (i.e. you are not (i) an Individual; or (ii) an individual acting wholly or mainly within your trade, business craft or profession) located in the European Union and a dispute arises between you and WICKED MATHS, we strongly encourage you to get in touch with us directly first to seek a resolution by contacting info@WICKED MATHS.co.uk. If the dispute cannot be resolved between you and WICKED MATHS, we will consider your reasonable request to resolve the dispute through an alternative dispute resolution process (“ADR”). ADR is a process where an independent body considers the facts of a dispute and seeks to resolve it, without having to go to court. If we agree to using an ADR process, you can submit your complaint to the Centre for Effective Dispute Resolution via its website http://www.cedr.com/ or http://ec.europa.eu/consumers/odr/. You should not submit your complaint until you have received notice from us in writing (and this could be an email) that we have agreed to resolve your complaint via ADR.