Terms of service

Last Updated: 12th July 2021

Definitions

“Authorised User” means the individual who is using Capsule, provided that they have been authorised to access Capsule under a written agreement between the Licensor and the Licensee.

“Capsule” means the Platform and Content comprising a case-based learning resource designed to support undergraduate medical students in the application of medical knowledge in the clinical setting. Capsule was developed as result of a collaboration between Ocasta, a learning technology company, and the University of Sussex through its Brighton and Sussex Medical School which is a joint venture between the University of Sussex and the University of Brighton.

“Confidential Information” means all information, whether technical or commercial disclosed directly or indirectly by one Party to the other, where the information is identified at the time of disclosure as confidential; or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

“Content” means all content contained or featured in Capsule.

“Licence Start Date” means the date from which Capsule shall be made available to the Licensee and its Authorised Users, as agreed in writing between the Licensor and Licensee.

“Licence End Date” means the date that Capsule will cease to be available to the Licensee and any Authorised Users, as agreed in writing between the Licensor and Licensee.

“Fee” means the fee payable to the Licensor to access Capsule as agreed in writing between the Licensor and Licensee.

“Force Majeure Event“ means any event arising that is beyond the reasonable control of the affected Party (including any industrial dispute affecting any third Party, governmental regulations, fire, flood, disaster, civil riot or war).

“Intellectual Property Rights” means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

“Licensor” means Ocasta Studios Limited;

“Marks” means any and all trade marks, trade names, service marks, logos, URLs or identifying slogans of the Licensor and its licensors, whether or not registered.

“Parties” means Licensor and Licensee (and, where the context requires, the Authorised User). Party shall be construed accordingly.

“Platform” means the software platform on which Capsule is built.

“Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures” means as defined in the Data Protection Legislation.

“Data Protection Legislation”: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

“UK Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK including the UK retained version of the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the UK retained version of the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

GRANT OF LICENCE

1. In consideration of the payment by Licensee of the Fee, the Licensor grant to Licensee during the term of these Terms a non-exclusive, non-transferrable, right and licence (with no right to sub-licence) to use Capsule and to permit use of Capsule by Licensee’s Authorised Users in accordance with these Terms.

2. The rights granted pursuant to clause 1 are subject to any reasonable guidelines that may from time to time be established by the Licensor.

3. The Licensor reserves the right at any time to (i) withdraw any Content or Platform functionality that the Licensor no longer retains the right to publish or license; or (ii) withdraw or cease to provide online hosting services hereunder, for any Content that the Licensor determines may be defamatory, obscene, unlawful, a violation of copyright or otherwise objectionable. The Licensor may at any time (without prejudice to its other rights and remedies) suspend the provision of some or all of the Content obtained by the Licensor from any third party upon request of such third party or immediately upon termination of the Licensor's agreement with such third party. For the avoidance of doubt, the Licensor will not be obligated to provide the Licensee with any Content that the Licensor no longer has the right to publish, license or otherwise distribute.

DATA PROTECTION

1. The parties will comply with all applicable requirements of the Data Protection Legislation. This Clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this, Applicable Laws means (for so long as and to the extent that they apply to the Licensor) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Licensee is the Controller and the Licensor is the Processors. The Annex to this Schedule sets out the scope, nature and purpose of processing by the Licensor, the duration of the processing and the types of Personal Data and categories of Data Subject.

3. Without prejudice to the generality of clause 1, the Licensee will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Licensor and/or lawful collection of the Personal Data by the Licensor on behalf of the Licensee for the duration and purposes of these Terms.

4. Without prejudice to the generality of clause 1, the Licensor shall, in relation to any Personal Data processed in connection with the performance by the Licensor of its obligations under these Terms:

process that Personal Data only on the documented written instructions of the Licensee which are set out in in the Annex unless the Licensor is required by Applicable Laws to otherwise process that Personal Data. Where the Licensor is relying on Applicable Laws as the basis for processing Personal Data, the Licensor shall promptly notify the Licensee of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Licensor from so notifying the Licensee;

ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Licensee, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Licensee has been obtained and the following conditions are fulfilled:

the Licensee or the Licensor has provided appropriate safeguards in relation to the transfer;

the data subject has enforceable rights and effective legal remedies;

the Licensor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

the Licensor complies with reasonable instructions notified to it in advance by the Licensee with respect to the processing of the Personal Data;

assist the Licensee, at the Licensee’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

notify the Licensee without undue delay on becoming aware of a Personal Data Breach;

at the written direction of the Licensee, delete or return Personal Data and copies thereof to the Licensee on termination of the Agreement unless required by Applicable Law to store the Personal Data; and

maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Licensee or the Licensee’s designated auditor and immediately inform the Licensee if, in the opinion of the Licensor, an instruction infringes the Data Protection Legislation.

5. The Licensee consents to the Licensor appointing Amazon and MongoDB Atlas as third-party processors of Personal Data under these Terms. The Licensor confirms that it has entered or (as the case may be) will enter with the third-party processors into written Agreements substantially on the third party’s standard terms of business and in either case which the Licensor undertakes will reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Licensee and the Licensor, the Licensor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.

SERVICE AVAILABILITY

The Licensor shall use commercially reasonable endeavours to make Capsule available 24 hours a day, seven days a week, except for:

Planned maintenance carried out during the maintenance window of 22:00 to 02:00 UK time; and
Unscheduled maintenance performed outside normal business hours, provided that the Licensor has used reasonable endeavours to give the Licensee at least 6 normal business hours' notice in advance.

PAYMENT

If there is no separate agreement between the Licensor and Licensee which governs payment terms for access to Capsule, this clause 7 shall apply.
Licensee shall pay the Fee to Licensor within 30 days after receipt by Licensee of an invoice for the same.
Any Fee which is due to the Licensor under the terms of these Terms shall be exclusive of value added tax (or the like), which if applicable will be paid by Licensee to the Licensor in addition and at the same time as payment of the relevant Fee.
If Licensee fails to pay any amount payable by it under these Terms by the due date thereof, the Licensor shall be entitled, but not obliged, to charge Licensee interest on the overdue amount. Such interest shall be payable by Licensee forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of four (4)% per annum above the base rate for the time being of Barclays Bank Plc. Such interest shall accrue on a daily basis and be compounded quarterly. The Licensor reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
Without prejudice to any other right or remedy it may have, in the event that payment is not received by the due date, the Licensor reserves the right to deny the Licensee further access to Capsule.
Licensee shall make all payments under these Terms without any withholding or deduction unless required by law. If any such withholding or deduction is required, Licensee shall pay to Licensor such additional amount as will ensure that Licensor receives the same total amount that it would have received if no such withholding or deduction had been required.

WARRANTIES

Each of the Parties warrants to the other that it has full power and authority to enter into and perform the obligations arising from these Terms
The Licensor warrants to Licensee that Capsule does not, to the best of its knowledge, infringe in the UK any third party's Intellectual Property Rights, other proprietary rights or rights of privacy and does not violate any law, statute, ordinance or regulation in England and Wales.
These Terms sets out the full extent of the Licensor’s obligations and liabilities in respect of the supply of Capsule and the Licensor’s Marks. The Licensor makes no representation that (i) Capsule will be of satisfactory quality, suitable for any particular purpose or for any particular use under specified conditions, notwithstanding that such purpose, use, or conditions may be known to the Licensor; or (ii) that Capsule will operate error free or without interruption or that any errors will be corrected; or (iii) that the Content is either complete or accurate. All conditions, warranties or other terms concerning the supply, purported supply or non-supply of the Licensor’s Marks and Capsule which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

LIMITATION OF REMEDIES AND LIABILITY

Nothing in these Terms shall operate to exclude or limit a Party’s liability for death or personal injury caused by its negligence; fraud; any other liability which cannot be excluded or limited under applicable law.
Neither Party shall be liable under or in connection with these Terms or any collateral contract for any loss of revenue; loss of actual or anticipated profits; loss of contracts; loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data; or any indirect or consequential loss, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the Parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.
In no circumstances will the Licensor be liable to the Licensee, Authorised User or any third party for any loss resulting from a cause over which the Licensor does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorised access, theft, or operator errors.
Subject to clause 1, each Party’s aggregate liability in respect of claims arising out of or in connection with these Terms or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed an amount equal to the Fee paid by the Licensee in respect of the relevant period during which the event giving rise to the liability occurred.

INTELLECTUAL PROPERTY RIGHTS

Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into Capsule shall remain with the Licensor (or its licensors as the case may be). Except as expressly provided in these Terms, nothing shall be construed to grant to Licensee any right, title or interest in or to Capsule or the Marks.

TERM AND TERMINATION

These Terms shall commence on the Licence Start Date and shall continue until the Licence End Date. The Licensor and Licensee may agree in writing to extend the Licence End Date subject to payment of a Fee for the extended period.
Either the Licensor or Licensee may terminate these Terms immediately at any time if the other Party commits any material breach of its obligations under these terms.
On expiry or termination of these Terms all provisions of these Terms shall cease to have effect, except that any provision which can reasonably inferred as continuing, or is expressly stated to continue, shall continue in full force and effect; and Licensee shall, unless the Parties have agreed otherwise in writing, cease use of Capsule and the Marks and ensure that the Authorised Users cease use of Capsule.

ASSIGNMENT

The Licensee may not assign or transfer any of its rights or obligations under these Terms without the prior written consent of the Licensor.
The Licensor may at any time assign or deal in any other manner with any or all of Licensor’s rights under these Terms.

ENTIRE AGREEMENT

Where the Licensor and Licensee have entered into a separate written agreement regarding access to Capsule, the terms of that agreement shall take priority over these Terms. Together with any such agreement, these Terms constitute the whole agreement between the Licensor and the Licensee (and it’s Authorised Users) relating to the use of Capsule.
The Licensor may amend these Terms from time to time. If we have to revise these Terms, we will give the Licensee at least one month's written notice of any changes to these Terms before they take effect. If the Licensee does not have any separate written terms which govern the Licensee’s access to Capsule and the Licensee does not wish to accept the changes to these Terms, the Licensee can choose to cancel the contract and the Licensor will refund to the Licensee any portion of the Fees paid (less a reasonable sum in respect of the Licensee's and its Authorised Users' use of Capsule).

SEVERANCE

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.
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.

GOVERNING LAW AND JURISDICTION

These Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales. 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 or its subject matter or formation (including non-contractual disputes or claims).

CONTACT

If you have any questions about these Terms of Service, please contact our support team.

ANNEX TO DATA PROTECTION

PROCESSING, PERSONAL DATA AND DATA SUBJECTS

PROCESSING BY THE LICENSOR

SCOPE

Ocasta Studios Ltd processes personal information in order to fulfil its obligations to the Customer, for example, to provide the products and services contemplated in these Terms. In meeting its obligations, Ocasta Studios Ltd stores and processes Personal Data, as described below.

NATURE

Forename & Surname with email address

User authentication associated with the Capsule service.
Access to account information.

Year of study, role and location

Access the appropriate content.

Personal ID

Access to stored case results.

Results of cases completed

Track personal progress and case record.

Usage records of action within Capsule

Usage analytics showing activity to the customer and to the BSMS (Brighton and Sussex Medical School) Learning Technologists and admin support for the purposes of troubleshooting and educational research.

PURPOSE OF PROCESSING

Forename & Surname with email address.

Ability to provide technical support