1. Definitions and Interpretation
1.1 In these Terms of Service the following expressions shall have the following meanings:
“Access Criteria” means the access criteria and any specific requirements as may be applicable for accessing and receiving the relevant Services as published by UCAS and updated from time to time.
“Instructions and User Guide” means the Instructions and User Guide, or equivalent as may be applicable as updated and reissued by UCAS from time to time and/or otherwise published on the UCAS website.
“Agreement” includes these Terms of Service, the Instruction and User Guide applicable to the Services and any agreement executed by the parties containing the details of particular Services to be provided to the Outreach Organisation by UCAS.
“Confidential Information” means, in relation to a party all information, whether technical or commercial, disclosed in writing, electronically, on disc, orally or by inspection of documents or pursuant to discussions between the parties, and including information provided before the date of the Agreement, where the information either (a) is confidential in nature; (b) constitutes commercially sensitive information and/or trade secrets; (c) is identified as confidential at the time of disclosure; and/or (d) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
“Outreach Opportunity” means a free of charge outreach activity or opportunity with the purpose of widening access and participation to higher education offered to disadvantaged and underrepresented students for recruitment through the Outreach Connection service provided by UCAS. Open days are not an Outreach Opportunity for the purposes of the Outreach Connection Service.
“Outreach Data” means information about all Outreach Opportunities including name, summary, type of opportunity, criteria, start date, end date, suitability, expenses, fees, location and information link and such other information relating to the Course as detailed in the Instructions and User Guide.
“Outreach Organisation” means an organisation which meets the Access Criteria and is registered with UCAS for accessing the Services.
“DPA” means the Data Protection Act 2018 and all applicable laws and regulations relating to processing of personal data and privacy including where applicable any guidance and/or codes of practice issued by the Information Commissioner or relevant regulator or government department in relation to such legislation.
“Input Material” means all Outreach Opportunity Data, documents, information (including contact information and User information), trade marks and materials provided by or on behalf of the Outreach Organisation relating to the Services.
“Intellectual Property Rights” means all patents, copyright and related rights, trademarks, trade, business and domain names, goodwill or actionable claims for passing off, designs, database rights, 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.
“Personal Data” shall have the same meaning as in the DPA.
“Services” means the Outreach Connection Service provided by UCAS which allows Outreach Organisations to place and access their Outreach Opportunities on, and to themselves upload Outreach Opportunities to surface to UK teachers and advisers via the UCAS Adviser Portal.
“Suspension” means the temporary or permanent block placed by UCAS on some or all of the Services and “Suspend” shall be construed accordingly.
“UCAS Adviser Hub” means the UCAS Adviser Hub available to UCAS registered Advisers.
“UCAS Materials” means all documents, UCAS Software, UCAS Content, products, services, data, text and images and any other materials or equipment supplied by or developed by UCAS in relation to the Services.
“UCAS Software” means software which UCAS owns or licenses from a third party and, in either case, licenses and/or otherwise makes available to the Outreach Organisation via or as part of or in connection with the Services.
“User” means an individual who is permitted by the Outreach Organisation to use the Services in accordance with these Terms of Service
1.2 References to any statutory or regulatory provision will (a) include any relevant Act of Parliament, subordinate legislation or other enforceable right and (b) be construed as references to that provision as may be amended, replaced, extended, consolidated or re-enacted from time to time.
1.3 Headings are for convenience only and shall not affect the construction of the Agreement.
2. Provision of Services
2.1 As UCAS is continuously enhancing and evolving its Services and adding new services, UCAS reserves the right to vary, update or replace these Terms of Service by giving reasonable notice to the Outreach Organisation which shall normally be 30 days’ notice, subject to any changes, such as those demanded by a regulator, which may need to take immediate effect.
2.2 The Services are dependent on the Outreach Organisation supplying Input Material or any general data or information required by UCAS, the Outreach Organisation undertakes to:
- 2.2.1 input the Input Material
- 2.2.2 keep the Input Material up-to-date
- 2.2.3 ensure that all Input Material is correct and accurate and complies with all applicable laws
2.3 The Outreach Organisation shall comply with the requirements set out in the Instructions & User Guide.
2.4 The Outreach Organisation shall manage and be responsible for the Users' access to the Services and ensure the User information is correct and kept up-to-date.
2.5 The Outreach Organisation shall ensure that each User registers with a unique email address and does not share his or her User account with any other person.
3. General Service Limitations
3.1 UCAS shall take reasonable steps to make the Services available to the Outreach Organisation. However, the Outreach Organisation acknowledges and agrees that no Service can be guaranteed to be a continuous fault-free service. Quality and the availability of Services may sometimes be affected by factors outside UCAS's control. The Outreach Organisation acknowledges and accepts that it is reasonable that:
- 3.1.1 as UCAS introduces new Services, applications and technologies, these may be made available to the Outreach Organisation subject to certain limitations or restrictions notified to the Outreach Organisation at the relevant time; and
- 3.1.2 the UCAS Software and IT systems on which the Services rely may from time to time require upgrading, modification, maintenance or other works. These may result in temporary interruption or unavailability of some or all of the Services. For any pre-planned work, UCAS shall give as much notice as reasonably practicable before any temporary interruption to Services is undertaken by UCAS
4. Software
4.1 UCAS warrants that the UCAS Software shall conform in all material respects to any associated documentation supplied by UCAS if the UCAS Software is used in accordance with such documentation and no unauthorised modifications are made to the UCAS Software. UCAS does not warrant that the UCAS Software will meet the Outreach Organisation’s requirements or that operation of the UCAS Software will be uninterrupted or error-free. UCAS’s sole obligation and liability for breach of this warranty will be to repair or replace the defective UCAS Software as soon as reasonably practicable.
4.2 UCAS Software is licensed to the Outreach Organisation on a non-exclusive, non-transferable and revocable basis solely to access the Services for the duration of the Agreement.
4.3 The Outreach Organisation undertakes that it will not and that its Users will not, copy, adapt, modify, decompile, reverse engineer, disassemble, translate, distribute, sub-licence, rent, lease, allow any third party access to or otherwise deal with any part of any UCAS Software in any way or create derivative works based on the UCAS Software.
4.4 The Outreach Organisation undertakes not to use the UCAS Software to develop or market any software which is substantially similar in function and expression to any UCAS Software.
4.5 UCAS reserves the right to change its third party software providers from time to time.
5. Outreach Organisation’s Sole Use and Group Company Benefit
5.1 The Outreach Organisation acknowledges that the Services under the Agreement are for the sole and exclusive benefit of the Outreach Organisation and nothing in the Agreement authorises or entitles the Outreach Organisation to re-sell, re-supply or otherwise distribute the Services without the prior written agreement of UCAS.
5.2 If the Outreach Organisation wishes any other company within its group (a “Group Company”) to receive the benefit of Services under the Agreement, the Outreach Organisation must first obtain the prior written consent of UCAS (which may be conditional upon the execution of any appropriate documents as may be deemed by UCAS). The Outreach Organisation shall be liable to UCAS for any acts or omissions of such Group Companies (including any Third Party Vendor appointed by a Group Company) which constitute a breach of this Agreement, unless and until UCAS enters into a separate legally-binding agreement with the Group Company in relation to the provision of Services.
6. Data Protection
6 The Parties do not believe there will be any Personal Data shared in the Services. However, in the event there is any processing by the Outreach Organisation, the parties shall comply with their data protection obligations and enter into a Data Processing Agreement.
7. Confidentiality
7.1 Except as otherwise expressly stated in the Agreement, the parties shall keep confidential all Confidential Information
7.2 Each party shall only use such Confidential Information for purposes related to the performance of the Agreement. The obligations of confidentiality in this paragraph 7 shall survive termination of the Agreement for a period of six years. However, disclosure is permitted in the following circumstances:
- 7.2.2 by UCAS disclosing any Confidential Information to any company within its corporate group
- 7.2.3 by reason of any law, regulatory requirement, court order or order of a competent statutory authority
- 7.2.4 by UCAS to any debt collection agency, credit reference agency, credit or fraud monitoring scheme, security agency or credit provider of any information relating to the Outreach Organisation’s performance in meeting its obligations under the Agreement
- 7.2.5 by UCAS as may be permitted by UCAS’s DPA notification to the Information Commissioner’s Office (“ICO”) or pursuant to the DPA or an investigation by the ICO.
8. Intellectual Property Rights
8.1 As between the Outreach Organisation and UCAS, all Intellectual Property Rights and all other rights in the UCAS Materials shall be owned by UCAS.
8.2 UCAS hereby grants to the Outreach Organisation a world-wide, royalty free, non- exclusive, non-transferable licence to use the UCAS Materials for the duration of the Agreement to the extent necessary to enable the Outreach Organisation to receive the benefit of the Services. For the avoidance of doubt this licence does not permit the Outreach Organisation to use UCAS’ name and/or brand in any promotion or marketing outside the Outreach Connection Service.
8.3 UCAS warrants that it has all necessary rights to grant a licence pursuant to paragraph 8.2 and that the Outreach Organisation’s use of such licence shall not infringe any Intellectual Property Rights of any third party. No warranty is given in relation to Third Party Content. UCAS shall not be in breach of this paragraph 8.3 to the extent the infringement arises from the use of any Input Materials, nor any modification of the UCAS Materials other than by UCAS.
8.4 The Outreach Organisation hereby grants to UCAS a world-wide, royalty free, non- exclusive, non-transferable licence to use all Input Materials supplied to UCAS pursuant to the Agreement for the duration of the Agreement to the extent necessary for the purposes of providing the Services to the Outreach Organisation.
8.5 The Outreach Organisation warrants that it has all necessary rights to grant a licence pursuant to paragraph 8.4 and that UCAS’s receipt and use of the Input Material shall not infringe any Intellectual Property Rights of any third party.
9. Suspension of Services
9.1 UCAS may Suspend the Outreach Organisation’s access to some or all of the Services:
- 9.1.1 if UCAS has reasonable grounds to believe that the Outreach Organisation, a User or any third party for which the Outreach Organisation has assumed responsibility in accordance with this Agreement has not complied with the Agreement. UCAS will notify the Outreach Organisation of such Suspension and the reasons for it as soon as reasonably possible (and where reasonably practical, will endeavour to give notice in advance of such Suspension)
- 9.1.2 if in UCAS’s reasonable opinion the Outreach Organisation no longer meets the Access Criteria
- 9.1.3 if the provision of the Services to the Outreach Organisation would or would be likely to damage, or the acts or omissions of the Outreach Organisation have damaged, the goodwill or reputation of UCAS
- 9.1.4 in respect of an individual User without notice if a complaint has been made against that User in relation to a suspected act or omission which constitutes a breach of the Agreement. UCAS will endeavour to notify the Outreach Organisation at the earliest opportunity of any such investigation or Suspension. The complaint will be investigated and the Outreach Organisation’s access to the Services will remain Suspended until UCAS receives the results of that investigation and makes a final decision on the complaint
- 9.1.5 in accordance with paragraph 10.4 below
10. Termination
10.1 Either Party may terminate the Agreement (in whole or in part, including termination of any individual Service) if the other party is in material or persistent breach of the Agreement, by giving written notice specifying the breach and (if capable of remedy) requiring it to be remedied. If the breach is not remedied within 21 days of the date of the notice then the Agreement shall end on the expiry of the 21 day notice period. If the breach is not remediable, termination will take effect immediately.
10.2 Either party may terminate the Agreement in whole or in part immediately by notice in writing if the other party:
- 10.2.1 ceases, threatens to, or suspends trading or carrying on business (other than temporarily by reason of a strike), or
- 10.2.2 suspends payment of its debts or is or becomes unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or commits any act of insolvency, or enters into a composition or voluntary arrangements with its creditors, or has a receiver or administrator appointed over the whole or any part of its business or assets, or has a creditor’s winding up petition advertised against it in the appropriate gazette, or passes a resolution to wind up (other than for the purposes of a solvent amalgamation or reconstruction), or is the subject of any action or procedure commenced in any jurisdiction which is similar to or analogous with any above-mentioned action or procedure
10.3 Either party may terminate the Agreement in whole or in part by giving the other party not less than 60 days’ written notice.
10.4 If UCAS has reasonable grounds for believing that a User or the Outreach Organisation is in breach of any of paragraphs 4, 6, 7, 8, UCAS may immediately Suspend the Services under paragraph 9 and if the Outreach Organisation fails to correct such breach (if capable of remedy) within 7 days of receiving notice of such breach, UCAS may immediately terminate the Agreement by written notice to the Outreach Organisation.
11. Liability
11.1 Nothing in the Agreement excludes or limits:
- 11.1.1 UCAS’ liability for negligent acts or omissions of its employees or agents causing death or personal injury to any person; or
- 11.2.2 any liability to the extent it cannot be excluded or limited under applicable law
11.2 Subject to paragraph 11.1 UCAS accepts no liability in contract, under statute or tort (including negligence) or otherwise for any of the following loss or damage:
- 11.2.1 loss of business, revenue or profits
- 11.2.2 loss of anticipated savings
- 11.2.3 damage to goodwill or reputation
- 11.2.4 loss or corruption of data or of software, or
- 11.2.5 consequential or indirect loss
12. Notices
12.1 All notices, consents and approvals under this Agreement shall be given in writing and must be served by post or e-mail.
12.2 All invoices and notices served by post will be sent to the address given by one party to the other (or such other address as may be notified from time to time). Notices by post will be deemed served 48 hours after they are sent, or on earlier proof of delivery.
12.3 Notices served by email, will be deemed served at the time the email was received in the recipient’s mailbox.
12.4 Notices must be sent to both UCAS’s legal team ([email protected]) and the Outreach Organisation’s UCAS Relationship Manager.
13. Miscellaneous provisions
13.1 Save as otherwise provided in the Agreement, the Agreement may be varied or amended only by the written agreement of both UCAS and the Outreach Organisation.
13.2 The failure to exercise or delay in exercising a right or remedy under the Agreement does not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. No single or partial exercise or waiver of any right or remedy under the Agreement shall prevent any further exercise of the right or remedy.
13.3 A party will not be liable to the other party to the extent that it is unable to perform an obligation or provide Services because of any factor outside its control, including but not limited to changes in applicable law, Acts of God, industrial action, default or failure of a third party, war, riot, terrorist act, governmental action, or by any act or decision made by a court of competent jurisdiction.
13.4 The Agreement is intended and agreed to be solely for the benefit of the Outreach Organisation and UCAS and their permitted assignees. No third party (including any User, Third Party Vendor or Group Company) shall acquire any benefit, claim or rights of any kind pursuant to, under, by or through the Agreement under the Contract (Rights of Third Parties) Act 1999.
13.5 The Outreach Organisation may not assign any of its rights under the Agreement without UCAS’s prior written consent.
13.6 The Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all proposals and prior agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Services are supplied only on the terms and conditions of the Agreement and no provisions in any purchase order or other document submitted at any time by the Outreach Organisation will be of any effect.
13.7 Both parties acknowledge that they have not entered into the Agreement (or any part of it) in reliance on any warranties, representations, covenants and undertakings except as expressly stated in the Agreement.
13.8 No term, condition or warranty will be implied into the Agreement by statute or otherwise, whether relating to fitness for purpose or otherwise, except to the extent that such implied provision may not be lawfully excluded by contract.
13.9 The Agreement is governed by and shall be construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English Courts.