1 DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions, unless the context requires otherwise the following expressions shall have the following meanings:
Commencement Date: the date when the User Agreement has been signed on behalf of each party, or when the School purchases Test Credits from OUP, whichever is the earlier.
Data Protection Legislation: while they remain in force, the UK Data Protection Act 2018, the UK General Data Protection Regulation and any other existing or future act, law, directive or regulation (anywhere in the world) relating to the processing of personal data or privacy, to which OUP, any other OUP data controller or processor or the School are subject, together with all notices, orders and codes of practice issued pursuant to that act, law, directive or regulation.
Force Majeure Event: an event beyond the reasonable control of OUP including (but not limited to) failure of network or internet, act of God, civil commotion, accident, breakdown of plant or machinery, fire or default of OUP’s suppliers or subcontractors.
Initial Term: a period of 12 months starting from the Commencement Date.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how 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.
OISA User Guide: means the OISA user guide document supplied by OUP to the School.
OISA Tests: the Oxford International Standardized Assessment test products which OUP supplies to Schools, which focus on the content of the Oxford International Curriculum covered in Year 6 (end of primary) and Year 9 (end of lower secondary) respectively, and which are available for maths, science, English and ESL.
Order Form: the Oxford International Standardized Assessments order form(s), to be completed and submitted by the School to OUP, in which Test Credits are ordered by the School.
Renewal Period: has the meaning set out in Clause 8.
School: the entity whose identity is set out in the Order Form and the User Agreement, together with all its employees, contractors, freelancers, agents and representatives from time to time.
Services: the services of (i) making the OISA Tests available to the Test-Takers via the Website, for the Test-Takers to take the OISA Tests; (ii) marking the OISA Tests once completed; (iii) making the OISA Tests results available to the School via the Website; and (iv) for all Test-Takers who complete OISA Tests in at least one subject and when results in all of a Test-Taker’s subjects have been published, making certificates available for download via the Website.
Term: the Initial Term together with any subsequent Renewal Periods.
Terms and Conditions: these terms and conditions as amended by OUP from time to time.
Test Credit: a credit purchased by the School from OUP on a per-level, per-subject, per-student basis that permits a Test-Taker to take the relevant OISA Test in accordance with this Agreement.
Test Data: the Test-Takers’ OISA Test results and any information provided by the School that relates to the Test-Takers.
Test Locations: the physical locations offered by the School where Test-Takers will take the OISA Test(s).
Test-Taker: an individual student who wishes to take one or more OISA Tests.
Test Window: the period during the relevant calendar year during which all OISA Tests must be started and completed, as specified in the latest User Guide.
Trade Marks: OXFORD, OXFORD UNIVERSITY, OXFORD UNIVERSITY PRESS, OXFORD LIFELONG LEARNING and any other trade mark, whether registered or unregistered, owned by or licensed to OUP whether or not used in connection with the OISA Tests and/or the Website.
User Agreement: the contract between OUP and the School governing the School’s purchase and use of Test Credits and provision of OISA Tests to Test-Takers.
User Guide: the Oxford International Standardized Assessments User Guide containing guidance for set up and administration of OISA Tests, as the same may be updated by OUP from time to time.
Virus: any thing or device (including any software, worms, trojan, viruses, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience.
Website: https://oisa.oup.com as may be changed from time to time by OUP at its sole discretion.
2 BASIS OF CONTRACT
2.1 The User Agreement is formed between the School and OUP when it has been signed on behalf of each party, or when the School purchases Test Credits from OUP, whichever is the earlier.
2.2 Subject to any relevant local laws and regulations, the School agrees that the Order Form and these Terms and Conditions shall be incorporated into the User Agreement, and the same shall form the exclusive basis on which the User Agreement is entered into between OUP and the School unless otherwise agreed in writing by an authorised representative of OUP.
2.3 The School agrees that OUP may amend these Terms and Conditions from time to time. OUP will notify the School of any such amendments. By continuing to purchase Test Credits, providing the OISA Tests to Test-Takers or requesting OUP to perform the Services, the School is agreeing to those amendments.
3 RESTRICTIONS ON THE SCHOOL
3.1 Except as necessary for the School properly to fulfil its obligations under the User Agreement (including, where applicable, in the course of communication with Test-Takers and their parents or guardians), the School may not:
i. copy, modify, manipulate, adapt, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the OISA Tests in any form or media or by any means, or combine the OISA Tests or any portion thereof with any other material;
ii. use, permit or authorise the use of any OUP’s Intellectual Property Rights;
iii. use, permit or authorise the use of the Trade Marks; and
iv. whether directly or indirectly, imply in any way that OUP endorses the teaching quality and/or standards of the School.
3.2 The School shall not: (i) represent itself as an agent of OUP for any purpose; (ii) pledge OUP’s credit; (iii) give any condition or warranty on OUP’s behalf; (iv) make any representation on OUP’s behalf; or (v) commit OUP to any contracts.
3.3 The School shall not, without OUP’s prior written consent, make any promises or guarantees about the OISA Tests beyond those contained in the promotional material made available by OUP to the School.
4 OBLIGATIONS OF THE SCHOOL
4.1 The School will:
i. comply at all times with the User Agreement;
ii. comply at all times with all the provisions set out in the latest version of the OISA User Guide relating to the administration of the OISA Tests, including all provisions relating to room preparation, facilities, security, supervision, infrastructure, personnel, invigilation, avoidance of malpractice, and incident reporting;
iii. enable OUP to engage in quality control of the OISA Tests e.g. to ensure the proper placement and representation of the copyright notices and disclaimers; to ensure that each OISA Test is being/ will be presented to Test-Takers and potential Test-Takers in accordance with the terms of the User Agreement; and to ensure that the School does not present the OISA Tests in such a way or in association with any materials that may damage the reputation or commercial interests of OUP;
iv. if requested by OUP, remove any OISA Tests which the School makes available to Test-Takers and/or cancel any OISA Tests within 24 hours (from the date of receipt of such request). The School acknowledges that OUP may stop the supply of any OISA Tests at OUP’s sole discretion and without giving any reason. In such circumstances, the School’s exclusive remedy would be for OUP to refund all monies paid by the School for unused Test Credits purchased by the School from OUP;
v. carry adequate insurance to meet its obligations under the User Agreement;
vi. provide all information and support that may be reasonably requested by OUP to enable it properly and efficiently discharge its duties under the User Agreement including names and details of Test-Takers and ensure that such information is accurate in all material respects; and
vii. ensure that all relevant School staff, contractors, freelancers, agents and representatives comply at all times with the terms of this User Agreement.
4.2 The School warrants that during the Term, each Test Location will meet current local legal requirements in respect of accessibility for Test-Takers, the health and safety of Test-Takers and security of any personal information.
4.3 The School shall not, and shall ensure that each Test-Taker shall not, access, store, distribute or transmit any Viruses onto the Website or OUP computer systems or networks.
4.4 The School shall promptly inform OUP if it learns of any unauthorised access to the OISA Tests or the Website and provide details as requested by OUP.
4.5 The School shall be responsible for the actions or omissions of any third parties engaged by the School to carry out its responsibilities under the User Agreement.
5 OBLIGATIONS OF OUP
5.1 Provided that the School is not in breach of any of its obligations under the User Agreement, OUP shall use reasonable endeavours to ensure that OISA Tests are available for the Test-Takers to undertake at the Test Locations on the dates and during the times scheduled by the School within the Test Window, and otherwise provide the Services in accordance with this User Agreement and the OISA User Guide.
5.2 OUP will mark the OISA Tests undertaken by the Test-Takers using reasonable skill and care, and use reasonable endeavours to provide the OISA Tests’ results to the School within the timelines set out in the OISA User Guide.
6 PURCHASE OF TEST CREDITS
6.1 Any purchase of Test Credits by the School shall be completed according to the terms of the User Agreement or as otherwise stipulated in writing by OUP to the School.
6.2 Information on the pricing of OISA Test Credits shall be made available via the Order Form, or as otherwise stipulated in writing by OUP to the School.
7 DATA PROTECTION
7.1 Each party to the User Agreement shall comply with the Data Protection Legislation applicable to its activities under the User Agreement.
7.2 Each party shall ensure that all personal data stored in relation to the User Agreement is held in physically secure locations, and any personal data held on a computer is password protected.
7.3 OUP shall adopt appropriate industry-standard archiving procedures for the OISA Test Data. In the event of any loss or damage to the Test Data caused by OUP, the School’s exclusive remedy shall be for OUP to use reasonable endeavours to restore the lost or damaged Test Data from the latest back-up of such Test Data maintained by OUP.
7.4 Where OUP processes any personal data on the School’s behalf when performing its obligations under the User Agreement, the parties acknowledge that the School shall be the data controller and OUP shall be a data processor and in any such case: (i) the School agrees that the Test-Takers’ personal data may be transferred or stored outside the European Economic Area or the country where the School and the Test-Takers are located; (ii) the School shall ensure that it is entitled to transfer the relevant personal data to OUP so that OUP may lawfully use, process and transfer the personal data in accordance with the User Agreement on the School’s behalf; (iii) the School shall ensure that the relevant third parties, including the Test-Takers, have been informed of such use, processing, and transfer as required by all applicable Data Protection Legislation; (iv) OUP shall process the personal data only in accordance with the terms of the User Agreement and any lawful instructions reasonably given by the School from time to time; and (v) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
8 TERM AND TERMINATION
8.1 Subject to earlier termination of the User Agreement on the terms of the User Agreement, the User Agreement shall commence on the Commencement Date and remain in force for the Initial Term and thereafter the User Agreement will automatically renew for successive periods of 12 months (each a ‘Renewal Period’), unless either party notifies the other of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period. In those circumstances, the User Agreement will (as the case may be) terminate upon the expiry of the Initial Term or the Renewal Period.
8.2 Without prejudice to each party’s rights or remedies under the User Agreement, either party may terminate the User Agreement without liability to the other if:
i. the other party commits a material breach of any of the terms of the User Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
ii. the other party has a receiver or administrative receiver appointed or passes a resolution for winding up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or if a court of competent jurisdiction makes an order to that effect, or if the other becomes subject to an administration order or enters into any composition or voluntary arrangement with its creditors, or has a receiver or manager or provisional liquidator or administrator appointed over the whole or a substantial part of its business or undertaking, or circumstances arise which would enable a court of competent jurisdiction or a creditor to appoint the same, or if the other is unable to pay its debts, or if the other ceases or threatens to cease to carry on business, or if any similar circumstances arise in any jurisdiction; or
iii. there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010 of the UK.
8.3 On termination of the User Agreement for any reason:
i. all rights and obligations of the parties shall immediately terminate (save for such rights of action which have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination);
ii. each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party; and
iii. OUP may dispose of any of the Test Data in its possession and/or control, unless OUP receives a written request for the then most recent back-up of the Test Data to be delivered to the School, no later than 30 days after the effective date of the termination of the User Agreement. OUP shall use reasonable endeavours to deliver the back-up to the School provided that the School (a) has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination); and (b) agrees to pay all reasonable expenses incurred by OUP in returning or disposing of the Test Data.
8.4 All unexpired Test Credits, if any, purchased under the User Agreement shall automatically expire on the termination date of the User Agreement.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 As between the School and OUP, all Intellectual Property Rights in, arising out of, or in connection with the OISA Tests shall be owned by OUP.
9.2 As between the School and OUP, all Intellectual Property Rights in the Test Data shall belong to the School. The School grants to OUP an irrevocable, non-exclusive licence during the period in which the Test Data is protected by Intellectual Property Rights to use the Test Data for the purpose of administering and improving the OISA Tests and providing the Services to the School in accordance with this User Agreement.
9.3 The School warrants that it has the right to grant OUP the licence under Clause 9.2 above and that the use by OUP of the Test Data will not infringe the Intellectual Property Rights of any third parties.
9.4 The School will notify OUP immediately if it becomes aware of any unauthorized use of any OISA Test, and/or any claim or allegation that any OISA Test infringes the Intellectual Property Rights or other proprietary rights of any third party and shall co-operate with OUP as OUP may reasonably request in relation to the conduct of the matter. OUP shall have the sole right to defend such claim and the School shall not make any admission or settlement in respect of any such claim without OUP’s prior written consent.
10 CONFIDENTIALITY
10.1 Neither party will use for any purpose (except for complying with or exercising its rights under the User Agreement), and each party will keep confidential and not divulge to any third party any and all information (verbal, written, recorded or disclosed in any other form) concerning any of the following: the business, organisation, work methods, know-how, affairs, plans and intentions, trade secrets, computer systems and installations, and customers of the other party that the first party has observed, obtained or received or in future observes, obtains or receives whilst negotiating with the other or performing the User Agreement (‘Confidential Information’).
10.2 The provisions of Clause 10.1 do not apply to either party’s Confidential Information which (i) is trivial or obvious; (ii) comes into the other party’s possession other than as a result of a breach of confidence; or (iii) is or becomes publicly available other than as a result of a breach of this Clause 10.
10.3 If either party’s Confidential Information is required to be disclosed by law, or by judicial or administrative process, the other party may make that disclosure provided (where it is lawful to do so) it notifies the party whose Confidential Information is to be disclosed as soon as possible.
10.4 Each party will take all those steps which may from time to time be necessary to ensure compliance with the provisions of this Clause 10 by its employees, directors, officers, contractors, agents and professional advisers, and will indemnify the other party and keep the other party indemnified against each and every breach of this Clause 10.
11 LIABILITY
11.1 This Clause 11 sets out the entire liability of OUP (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the School and the Test-Takers in respect of any breach of the User Agreement; any use made by the School or Test-Takers of the Services, the Website, the OISA Tests or any part of them; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the User Agreement.
11.2 Except as expressly and specifically provided in the User Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the User Agreement.
11.3 Nothing in the User Agreement excludes the liability of OUP for death or personal injury caused by OUP’s negligence; or for fraud or fraudulent misrepresentation.
11.4 Subject to Clause 11.3, OUP shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any direct or indirect (i) losses, expenses, charges or damages; (ii) loss of profits, loss of business, depletion of goodwill and/or similar losses; (iii) loss or corruption of data or information; and (iv) pure economic loss, any special losses, and consequential loss, costs, damages, charges or expenses however arising under the User Agreement which is incurred by the School and/or the Test-Takers.
11.5 Subject to Clause 11.3 but without prejudice to Clause 11.4, OUP’s 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 this User Agreement shall be limited to the total amount paid by the School for Test Credits in the twelve (12) months preceding the claim in respect of which such liability arises.
11.6 The School will indemnify and will keep OUP indemnified against any losses, damages, penalties, cost and/or expenses arising from the School’s non-compliance with or breach of Clauses 3.1, 4.3, 9.2, 9.3, 9.4, and 10.
12 ETHICAL CONDUCT
12.1 The School represents and warrants that it shall not act, or omit to act, in such a way as to give rise to a breach by it, or any of its Affiliates, of any applicable law related to fraud, bribery, corruption or any related matter.
12.2 The School represents and warrants that it shall not offer, promise, pay, give or authorise (tacitly or otherwise) any financial or other advantage, on behalf of OUP:
i. to any person in order to induce that person improperly to perform a function or activity in connection with a business or organization, a person’s employment, or a public function; or
ii. to any Official to influence that Official in connection with obtaining business or a business advantage for them or for any of OUP or its Affiliates.
12.3 The School shall maintain adequate procedures designed to prevent any persons who perform services for them or on their behalf from undertaking the activities described in Clause 12.2 above to obtain or retain business or a business advantage for them or for any of OUP or its Affiliates.
12.4 The School shall promptly report any apparent breach of Clauses 12.1 or 12.2 to OUP.
12.5 The School shall comply with the OUP Partner Code of Conduct, as provided to the School and as updated by OUP from time to time, in the execution of any services for or on behalf of OUP.
12.6 OUP shall have the right to terminate this Agreement immediately on written notice, without liability, for breach of Clauses 12.1 or 12.2.
12.7 In this Clause 12:
i. “Official” means (a) an individual who holds a legislative, administrative, or judicial position of any kind of any country or territory, or any subdivision of any country or territory; (b) any person who performs public functions in any branch of any national, local or municipal government or who exercises a public function for any public agency or public enterprise; and (c) an official or agent of a public international organisation, such as the UN or the World Bank;
ii. “Affiliate” shall mean, in relation to a party, a person who is, from time to time, a subsidiary or parent of that party, or is a subsidiary of that party’s parent; and
iii. the record keeping, audit and other related provisions set out in Clause 12.8 shall continue for six years after termination of this Agreement.
12.8 The School shall:
i. maintain accurate and complete records of all expenditures related to performance of this Agreement and the steps taken by the School to take adequate procedures pursuant to Clause 12.3 and make such records available to OUP, its advisors and auditors on reasonable notice;
ii. co-operate with OUP and its third party representatives both in relation to any investigation in respect of matters relating to fraud, bribery, corruption or any related matter, and in case of any reasonably suspected breach of this Clause 12; and
iii. answer, in reasonable detail, any written or oral inquiry from OUP related to the School’s compliance with this Clause 12.
13 TAX COMPLIANCE
13.1 The School shall not engage in any activity, practice or conduct which would constitute, or be regarded as, an offence under any law or regulation applicable to it, consisting of the fraudulent, or otherwise unlawful, evasion of any tax.
14 GENERAL
14.1 OUP shall not be liable to the School as a result of any delay or failure to perform its obligations under the User Agreement as a result of a Force Majeure Event.
14.2 OUP may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the User Agreement and may subcontract or delegate in any manner any or all of its obligations under the User Agreement to any third party. The School shall not, without the prior written consent of OUP, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the User Agreement.
14.3 All notices required to be given under the User Agreement shall be given in writing (which shall include email) in English and left at or sent by first class registered or recorded delivery to, in the case of OUP, Oxford University Press, Great Clarendon Street, Oxford, OX2 6DP, and in the case of the School, the address set out in the Order Form, or such other address as the party concerned shall from time to time designate by notice pursuant to this Clause. Such notices shall be deemed to be delivered (i) when left at the addressee’s address; (ii) if posted, 48 (forty-eight) hours after posting (iii) or, if emailed, when the email is successfully sent. All notices to OUP shall be marked for the attention of the Head of Assessment, Education Division with a copy to the Group Legal Director.
14.4 A waiver of any right under the User Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the User Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.5 Unless specifically provided otherwise, rights arising under the User Agreement are cumulative and do not exclude rights provided by law.
14.6 If a court or any other competent authority finds that any provision of the User Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the User Agreement shall not be affected. If any invalid, unenforceable or illegal provision of the User Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.7 Nothing in the User Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.8 A person who is not a party to the User Agreement shall not have any rights under or in connection with it.
14.9 Except as set out in the User Agreement, any variation, including the introduction of any additional terms and conditions, to the User Agreement shall only be binding when agreed in writing and signed by OUP.
15 GOVERNING LAW AND JURISDICTION
15.1 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.
15.2 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 the User Agreement.
15.3 Notwithstanding Clauses 15.1 and 15.2, nothing in these Terms shall limit the right of OUP to take proceedings against the School in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdictions.