Terms and Conditions
You are advised as follows that:
- This Website and its contents and functionalities are the property of The Australian Council for Educational Research Ltd (ABN 19 004 398 145) and is fully licensed to ACER International UK (ACER UK) for the purpose of the Scottish Online Formative Assessments;
- Use of this Website including the Services offered by it are governed by this User Agreement. This is a legal agreement in respect of which you should seek your own legal advice prior to making use of it or any of the Services offered by it;
- You agree to the terms and conditions of this User Agreement by agreeing to the same on the registration page or use of the Website and the Services offered by it;
- The User Agreement contains DISCLAIMERS concerning this Website, its contents and the Services offered by it; and
- Whilst using the Website you should familiarise yourself with the contents of the User agreement from time to time if these conditions change.
This agreement is between ("ACER UK'') and users of this ACER owned and operated Website known as 'SOFA' (“Website”) and the Services offered by it to the ("User").
In consideration of the use of this Website and services offered by it (“Services”) Users agree to the following terms and conditions with ACER, which are to be read (to the extent applicable) subject to the UK Consumer Rights Act 2015 (Consumer Law).
Terms and Conditions:
- Use of this Website and the Services are subject to this User Agreement and restricted to Users (who are members in accordance with clause 2) and those of the User's students, staff or other persons who use the Services under the User's membership.
- Persons authorised to use the Website and the Services in accordance with clause 1 above may only use it personally for the benefit and utility of the Service (that is the “Purpose”). This Website and its contents may only be used for the Purpose and not be distributed, used or copied for any other purpose, particularly for a personal or otherwise commercial purpose or financial gain.
- ACER retains the right in its sole and absolute discretion to suspend or cancel any User account, User's access to the Website and/or this Website.
- ACER makes NO REPRESENTATION, GIVES NO WARRANTY OR GUARANTEE this Website will be or continues to be available at “all” times or for whatever purpose a User may intend. Occasionally Users may not be able to access the Website or the Services it provides. This may be due to maintenance or service requirements, technical error or for reasons beyond ACER's control. ACER will use its best endeavours to ensure such unavailability is kept to a minimum. User is put on NOTICE that in the event of such unavailability the DISCLAIMERS in clause 11 below apply. For the avoidance of doubt ACER’s Service Level Agreement (SLA) for availability is not less than 95%.
- The contents of this Website may contain technical inaccuracies or typographical errors. Information found to be erroneous will be corrected at the first available opportunity, and further information may be changed or updated without notice. ACER reserves the right to make improvements and/or changes in the Website, its contents and/or any data contained in the Website at any time without notice.
- User agrees:
- In order to be able to access the Services offered on this Website, User must become a member;
- To become a member, User must complete the registration details in the manner described on the Website (“Member”);
- ACER reserves the right to terminate membership at any time if User breaches these terms and conditions;
- User agrees to ensure that User's registration details are true and accurate at all times. Specifically, User must notify ACER of any change to the registration details as originally supplied as soon as practicable; and
- Upon registration, User will be provided with a password and account designation. User agrees to pay for the Services offered via this Website in the manner specified on this Website.
- Users agree that any services used or consumed by the usage of the User designated account are deemed authoritative and thereby revenue counting.
- It is the responsibility of the User to advise and update ACER if they believe their account has been compromised, and ACER will suspend activities until such time as the User requests reactivation.
3) Ordering of Services
- User may offer to purchase the Services for the price specified in the ACER pricing guideline downloadable from the online shop page of this Website (“Pricing Guideline”) by completing an order for Services contained on that page.
- By completing an order User agrees to any terms and conditions of purchase specified on the online shop page of this Website or contained in the Pricing Guideline downloadable from that page (“Pricing Guideline”),
- User's order must contain User's name, email address, credit card details and any other ordering information specified on this Website.
- Within seven days of receipt of User's order, ACER will at its discretion accept or reject User's offer to purchase.
- User may not cancel an order once it has been submitted, even if ACER's acceptance or rejection of User's offer is still pending, unless the User can establish the order was fraudulent in nature.
- Acceptance of a User's offer means User will use the Services in accordance with this User Agreement and any terms and conditions referred to within it
- ACER is not required to give reasons for rejecting an offer to purchase.
- If ACER rejects User's offer to purchase the goods for any reason, neither party will be under any further liability to the other arising out of your original offer or our non-acceptance of that offer.
- If ACER has not responded to you within seven days. User's offer will be deemed to be accepted.
- ACER gives no undertaking as to the continuous availability of services advertised on this Website.
- Delivery of the Services to you may be affected in the manner described on this Website.
4) Intellectual Property and Licence to use Services
- This Website and its contents are the property of ACER and its third party licensors;
- All intellectual property contained in this Website including copyright, neighbouring rights, all rights in relation to inventions (including patents), computer code or algorithms, circuit layouts, registered and unregistered trade marks (including service marks), designs, the right to have confidential information kept confidential, know how, trade secrets and all other rights of intellectual property resulting from intellectual activity in the industrial, scientific, research, literary or artistic fields remains the property of ACER or its related corporations (as defined in the Corporations Act 2001(Cth)), or of their respective owners' and any unauthorised use thereof is strictly prohibited.
- Any rights not expressly granted herein are reserved. In particular, material on this Website, including text and images, is protected by copyright. They may not be copied, reproduced, republished, downloaded, posted, broadcasted or transmitted in any way except by a User for the Purpose. In the event contents of the Website are downloaded for the Purpose User agrees not to copy, distribute those contents, to keep them securely and delete or destroy them when the User's use for the Purpose is complete.
- Except if User has a hosting agreement or service agreement with ACER, where User is a Member.
- is granted a personal, non-transferable, revocable licence for it and its end users (if any) to access and use the Services it has purchased in accordance with clause 3 above subject to any terms and conditions agreed to pursuant to that clause; and
- must ensure any of its end users comply with this User Agreement.
- Any trademarks, logos, acronyms or other marks identifying a particular business, good or service contained in this Website shall not be used, except in a descriptive manner, without the written consent of its owner whether registered or not.
- The User warrants that the User shall not use this Website and/or its contents in any manner that infringes the copyright or any other intellectual property right of ACER, its third party licensors or any other person or entity.
- Except for clause 4) 4 a., this clause shall survive any termination or expiration of this User Agreement.
- Any Intellectual Property in materials delivered to User (excepting test items existing at the date of Membership) as a result of its access and use of Services under the VCAA's Member registration will be owned by VCAA.
- Any publication, broadcast or dissemination of the ACER name, trademark and/or logo by the User in association with the Purpose or otherwise shall be at ACER's sole and absolute discretion and the User shall notify ACER and seek permission to do such in writing not less than seven days prior to such publication, broadcast or dissemination.
- This website may contain links to other websites (“Linked Websites”). Those links are provided for convenience only and may not remain current or be maintained.
- ACER is not responsible for the content or privacy practices associated with Linked Websites.
- ACER links with Linked Websites should not be construed as an endorsement, approval or recommendation by ACER or its related companies of the owners or operators of those Linked Websites, or of any information, graphics, materials, products or services referred to or contained on those Linked Websites, unless and to the extent stipulated to the contrary.
- ACER and its related corporations are not liable, responsible or in any way obliged in respect of the Linked Websites, any damage suffered due to usage of any such Linked Websites can never be claimed from ACER or its related corporations.
- Users are not to send via this Website to ACER or its related corporations any unsolicited confidential or proprietary information. Any such transfers will not be deemed confidential. ACER makes NO REPRESENTATION, GIVES NO WARRANTY OR GUARANTEE, NOR AGREES that any such unsolicited confidential or proprietary information will be treated as confidential, made secure or in any way will ACER be responsible for any such material or information. By forwarding any unsolicited confidential or proprietary information through this Website the User is granting ACER and its related corporations an unrestricted licence to use any such materials and information in any manner or way it deems fit.
- The contents of this Website and data it contains is confidential information to be used by User only for the Purpose. User agrees to take all reasonable action to protect the confidentiality of the contents of this Website and the data and the identities of the persons and/or entities that contributed the contents or data and not do anything that may place such confidentiality at risk.
- This clause shall survive any termination or expiration of this User Agreement.
- As a result of the User's use of this Website and the Services ACER will by necessity collect data. Specifically as a result of either the use of the online assessments contained in this Website or the registration for access to the services. The data being User's and User's students, staff or other persons (who use a Service under the User's membership) personal data, plus associated ancillary metrics may be collected as requested or required, their assessment results from the use of the Services and reports generated.
- By using this Website and the Services User agrees to:
- such data being collected and processed by ACER for the delivery of the “Service” and
- understands and agrees that ACER may use such data (once de-identified) for research purposes and for monitoring and upgrading of this Website and its contents.
- ACER agrees not to disclose such data to any third parties except for the statistical purposes detailed in clause 8) 2 (b) and User agrees to such disclosure.
9) Data Protection Laws
Candidate means any individual undertaking the SOFA and their relevant parent or guardian;
Data Protection Laws means the General Data Protection Regulation (Regulation (EU) 2016/679) as incorporated within the UK DPA 2018, and any other laws and regulations relating to data protection or the privacy of individuals that are applicable to the processing of Personal Data under the Contract;
SOFA means the ACER owned Scottish Online Formative Assessments; and
Personal Data shall include personal information and have the meaning ascribed to those terms in the respective Data Protection Laws;
Foreign Transfer means the legal transfer of data from/by the User or ACER UK in its respective jurisdiction to a third country or international organisation outside the EEA.
- User warrants it will comply with applicable Data Protection Laws in respect of its Candidates, or staff or other persons who use the SOFA or its concomitant services where Personal Data are collected or shared including making sure all necessary registrations of its processing particulars where required, are strictly in accordance with the Data Protection Laws.
- In respect of any Personal Data that is processed in connection with the SOFA, the parties agree that they shall each be data controllers (Joint Controllers) for the purposes of the Data Protection Laws and each party shall comply with its respective obligations under the Data Protection Laws and ACER shall only process Candidate Personal Data for the specific purpose in connection with the SOFA.
- User shall ensure that:
- all processing activity notices compliant with data protection laws have been given to any Candidates and explicit consents obtained ( if applicable) for such processing are collected and retained as required
- all obligations (if any) in transferring Personal Data out of the User’s relevant jurisdiction (Foreign Transfer) have been attended to in accordance with the Data Protection Laws, and/or any local applicable specific conditions have been satisfied such that the User is legally able to provide any Candidate Personal Data to ACER and for ACER to legally process such Personal Data for the purpose of supplying the SOFA and concomitant services;
- it will provide or make available to all Candidates a copy of ACER’s Privacy Notice locatable at: https://schools.aceruk.org/help/privacy-policy prior to those Candidates undertaking the SOFA.
- it will provide or make available to all Candidates whatever safeguarding mechanism has been used for the foreign transfer process, if this is required.
- all Candidate (data subject) rights afforded to them under the relevant data protection laws are to be provided and supplied to the candidate by the User within the required time period and ACER confirms its assurance of assistance if or where required in providing personal data collected for the purpose of the SOFA to the User to complete such candidate requests.
- User shall indemnify, keep indemnified, hold harmless and defend ACER against all liabilities, costs, expenses, damages and losses (including any direct losses, all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ACER arising out of or in connection with User’s breach of this Data Protection Law clause and/or the Data Protection Laws to which User is subject.
10) Security of Information
- Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. Whilst ACER implements industry best practice to protect such information transmissions, ACER does not warrant and cannot ensure the absolute security of any information in transit which User transmits to ACER.
- Any information which User transmits to ACER is transmitted at User's own risk. Nevertheless, once ACER receives such information, it will take all reasonable steps as a controller to preserve the security of such information as mandated by data protection law.
- User agrees that User will not share User's password, let anyone else access User's account, or do anything that might put the security of User's account at risk.
- ACER reserves the right to remove User's username or similar identifier in respect of User's account if appropriate.
- User acknowledges sole responsibility for and assumes all risk arising from User's use of this Website and the Services.
11) Disclaimers and Exclusions
- User must take User's own precautions to ensure that the process which User employs for accessing this Website does not expose User to the risk of viruses, malicious computer code or other forms of interference which may damage User's own computer system. For the avoidance of doubt ACER does not accept responsibility for any interference or damage to User's own computer system which arises in connection with User's use of this Website or any Linked Website.
- Users’ have legal rights and guarantees under the Consumer Rights Act 2015. By the supply of services rendered by this SOFA Website is mutually accepted as a supply of goods or Services to a consumer within the meaning of the Consumer Law, nothing contained in these terms and conditions excludes, restricts or modifies the application of any provision, the exercise of any right or remedy or the imposition of any liability under that Consumer Law.
- To the maximum extent permissible by law (and for the avoidance of doubt, subject to any obligations which cannot be excluded, restricted or modified under the UK Consumer Law), ACER expressly, irrevocably and totally disclaims any liability whatsoever for any loss or damage in connection with:
use of Services or purchase of goods, including, but not limited to any representations made by ACER or its personnel (including agents, subcontractors and consultants) in respect of the Services or products supplied by virtue of this Website.
- User is put on NOTICE that, subject to the UK Consumer Law, the entire risk of User's use of the Services or goods supplied by virtue of this Website is to the maximum extent permissible by law (for the avoidance of doubt including the UK Consumer Law) ACER will have no liability whatsoever to User for any loss, harm, damage, cost or expense (including legal fees) or any direct, special, indirect, incidental, punitive or consequential loss or damage (including, without limitation, economic loss, loss of contract, profit, revenue, income, opportunity, goodwill, information, anticipated savings, business relationships, production or data) in respect of the User's use of the Services or goods supplied by virtue of this Website;
Without limiting anything else contained in this User Agreement, a refund (in whole or in part) for any goods purchased or Services provided by ACER will only be made to You where ACER has non-excludable legal liability to do so under UK Consumer Law. Further, and to the maximum extent permissible by applicable law, any refund given by ACER and accepted by You shall be deemed to be in full and final satisfaction of and an unconditional release by You in favour of ACER of any and all claims, demands, costs, expenses, liabilities and damages You have or might have had in respect of the said goods or Services, including any moneys paid for them. Should you consider that You are entitled to apply for a refund from ACER, You will need to obtain from ACER and compete its then current “Refund” form.
The User irrevocably and unconditionally indemnifies and agrees to keep indemnified and hold harmless ACER and its respective officers, employees, and consultants from and against any and all liability loss, harm, damage, cost or expense, including legal fees on a full indemnity basis, which ACER may suffer or sustain as a result of any act or omission of the User or any of its officers, employees, consultants have done or omitted to be done in connection with a breach of this User Agreement or any applicable law, except to the extent that the liability, loss, harm, damage, cost or expense arises from ACER's negligent or unlawful acts or omissions. This clause shall survive any termination or expiration of this User Agreement.
ACER retains the right in its absolute discretion to amend this User Agreement and its terms and conditions from time to time and will make available the latest version on the website.
14) Force Majeure
ACER accepts no liability for any failure to comply with these terms and conditions where such failure is due to circumstances beyond our reasonable control.
If ACER waive any rights available to it under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
This Agreement is governed by the laws of the United Kingdom and the courts of UK shall have exclusive jurisdiction.
If any clause of this Agreement be invalid, it shall be severed so as to preserve the balance of this Agreement, and terms being reasonable and conducive to business efficacy shall so be implied.
18) Entire Agreement
These terms and conditions constitute the entire agreement between ACER and User in respect of the use of this Website and any Services or goods supplied by virtue of the Website and any understanding, agreement, and/ or representation implied or express (made by one party to the other) not expressly included in these terms and conditions are specifically excluded.
By signing this contract, you agree to the Terms and Conditions as stated above.