2. COMMENCEMENT AND TERM
2.1 The Contract shall commence on the Services Start Date and shall continue for the Initial Subscription Term and, thereafter, the Contract shall automatically renew for successive periods of 12 months or such other periods as the parties may agree in writing signed by both parties (each a “Renewal Period“), unless:
2.1.1 either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
2.1.2 otherwise terminated in accordance with the provisions of the Contract;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the
“Subscription Term”
2.2 In the absence of signature of the Contract by either party, the commencement of use of the Services by the School shall constitute acceptance of these Conditions and the Contract.
3. SERVICES
3.1 School Spider shall, during the Subscription Term, provide the Services and make available the Documentation to the School on and subject to the terms of the Contract.
3.2 School Spider shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week,except for:
3.2.1 planned maintenance carried out on reasonable notice to the School; and
3.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that School Spider has used reasonable endeavours to give the School notice in advance except in the case of emergencies.
3.3 School Spider will, as part of the Services and at no additional cost to the School , provide the School with School Spider’s standard customer support services during Normal Business Hours as set out in the Services Table. School Spider may amend the support services in its sole and absolute discretion from time to time.
3.4 In supplying the Services, School Spider shall:
3.4.1 perform the Services substantially in accordance with the Documentation and with reasonable care and skill;
3.4.2 comply with all applicable laws and regulations with respect to its activities under the Contract.
3.5 Either party may request or suggest changes variations or additions to the Services (“Additional Services“). Additional Services shall form part of the Contract and shall be governed by these Conditions when they are agreed in writing by both parties (including by email) which agreement must set out any impact on the Charges caused by the Additional Services.
3.6 The undertaking at clause 3.4 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to School Spider’s instructions, or modification or alteration of the Services by any party other than School Spider or School Spider’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, School Spider will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the School with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the School’s sole and exclusive remedy for any breach of theundertaking set out in clause 3.4.
3.7 School Spider:
3.7.1 does not warrant that:
(a) the School’s use of the Services will be uninterrupted or error-free; or
(b) that the Services, Documentation and/or the information obtained by the School through the Services will meet the School’s requirements.
3.7.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the School acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.8 The Contract shall not prevent School Spider from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
3.9 School Spider warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
4. USE
4.1 In relation to the Users, the School under takes that:
4.1.1 it will not allow or suffer any user account to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Services and/or Documentation;
4.1.2 only staff pupils parents and carers or other persons specifically authorised by the School or School Spider shall have a designated account;
4.1.3 once pupils leave the School the School shall ensure that the accounts of the pupil and all associated Users are disabled;
4.1.4 each User shall keep a secure password for his use of the Services and Documentation, and that each User shall keep his password confidential;
4.1.5 it shall permit School Spider or School Spider’s designated auditor to audit the Services in order to establish the name and password of each User and School Spider’s data processing facilities to audit compliance with the Contract in such a manner as not to substantially interfere with the School’s normal conduct of business; and
4.1.6 if any of the audits referred to in clause 4.1.5 reveal that any password has been provided to any individual who is not authorised by School Spider or the School to use the Software, then without prejudice to School Spider’s other rights, the School shall promptly disable such passwords and School Spider shall not issue any new passwords to any such individual.
4.2 The School shall not, and shall not permit any User,authorised or otherwise, to, access, store, distribute or transmit any Viruses,or any material during the course of its use of the Services that:
4.2.1 is unlawful, harmful, threatening, defamatory,obscene, infringing, harassing or racially or ethnically offensive;
4.2.2 facilitates illegal activity;
4.2.3 depicts sexually explicit images;
4.2.4 promotes unlawful violence;
4.2.5 is discriminatory based on race, gender, colour,religious belief, sexual orientation, disability;
4.2.6 infringes any third party rights (including material which is in breach of any third party Intellectual Property Rights).or
4.2.7 is otherwise illegal or causes damage or injury to any person or property,
together or individually (“Inappropriate Content”).
4.3 The School shall not:
4.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror,republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
4.3.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
4.3.3 use the Services and/or Documentation to provide services to third parties; or
4.3.4 subject to clause 12.2, license, sell, rent, lease,transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or
4.3.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this condition 4; or
4.3.6 introduce or permit the introduction of, any Virus into School Spider’s network and information systems.
4.4 The School shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use,promptly notify School Spider.
4.5 The School acknowledges that School Spider has no control over any content uploaded to the School Spider platforms by users and does not purport to monitor the content on any of the platforms. School Spider reserves the right, without liability or prejudice to its other rights,at its sole discretion to remove content where it reasonably suspects such content is Inappropriate Content or to disable the School’s access to any Inappropriate Content.
4.6 The School shall indemnify School Spider against all damages, losses and expenses arising as a result of any action or claim that the School Data or any of it constitutes Inappropriate Content and for any breach of this clause 4.
5. SCHOOL’S OBLIGATIONS
5.1 The School shall:
5.1.1 provide:
(a) all necessary co-operation to School Spider in relation to the Services;
(b) for School Spider, its agents, subcontractors,consultants and employees, in a timely manner and at no charge, all necessary access to the School’s premises, office accommodation, data and other facilities as required by School Spider;
(c) in a timely manner, such information as School Spider may require, and ensure that it is accurate and complete in all material respects;
including but not limited to School Data, security access information and configuration services.
5.1.2 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
5.1.3 carry out all other School responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the School’s provision of such assistance as agreed by the parties, School Spider may adjust any agreed timetable or delivery schedule as reasonably necessary;
5.1.4 provide secure account and password details to Users;
5.1.5 ensure that the Users:
(a) use the Services and the Documentation in accordance with the terms and conditions of the Contract and shall be responsible for any User’s breach of the Contract;
(b) keep account details and passwords confidential and do not authorise any third party to access or use the Services on their behalf;
5.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for School Spider, its contractors and agents to perform their obligations under the Contract,including without limitation the Services;
5.1.7 use and maintain an up to date virus-checking and security software;
5.1.8 ensure that its network and systems comply with the relevant specifications provided by School Spider from time to time; and
5.1.9 be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring,maintaining and securing its network connections and telecommunications links from its systems to School Spider’s data centres, and all problems, conditions,delays, delivery failures and all other loss or damage arising from or relating to the School’s network connections or telecommunications links or caused by the internet.
6. INTELLECTUAL PROPERTY
6.1 School Spider and its licensors shall retain ownership of all School Spider IPRs. The School and its licensors shall retain ownership of all Intellectual Property Rights in the School Materials.Except as expressly stated herein, the Contract does not grant the School any rights to, under or in, any patents, copyright, database right, trade secrets,trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
6.2 Subject to condition 7, the restrictions set out in this condition 6 and the other terms and conditions of the Contract, School Spider hereby grants to the School a non-exclusive,non-transferable right, without the right to grant sub licences, to permit the Users to use the Services and the Documentation during the Subscription Term solely for the School’s internal operations in the normal course of the business of a school.
6.3 The School grants School Spider a fully paid-up,worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the School Materials for the term of the Contract for the purpose of providing the Services to the School in accordance with the Contract.
6.4 In the defence or settlement of any claim,School Spider may procure the right for the School to continue using the Services, replace or modify the Services so that they become non-infringing or,if such remedies are not reasonably available, terminate this agreement on 2 Business Days’notice to the School without any additional liability or obligation to pay liquidated damages or other additional costs to the School.
6.5 In no event shall School Spider, its employees,agents and sub-contractors be liable to the School to the extent that the alleged infringement is based on:
6.5.1 a modification of the Services or Documentation by anyone other than School Spider; or
6.5.2 the School’s use of the Services or Documentation in a manner contrary to the instructions given to the School by School Spider; or
6.5.3 the School’s use of the Services or Documentation after notice of the alleged or actual infringement from School Spider or any appropriate authority.
6.6 The foregoing states the School’s sole and exclusive rights and remedies, and School Spider’s (including School Spider’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.
6.7 The rights provided under this condition 6 are granted to the School only, and shall not be considered granted to any other company organisation person school club or local authority.
7. SCHOOL DATA
7.1 The School shall own all right, title and interest in and to all of the School Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such School Data.
7.2 The School is responsible for the content and transmission to the correct recipients of all messages emails and any communication sent using the Software.
7.3 In the event of any loss or damage to School Data, the School’s sole and exclusive remedy against School Spider shall be for School Spider to use reasonable commercial endeavours to restore the lost or damaged School Data from the latest back-up of such School Data maintained by School Spider in accordance with its archiving procedure. School Spider shall not be responsible for any loss, destruction, alteration or disclosure of School Data caused by any third party.
7.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. A copy of School Spider’s Privacy Policy is available from School Spider on request.
7.5 The parties acknowledge that:
7.5.1 if School Spider processes any personal data on the School’s behalf when performing its obligations under the Contract, the School is the controller and School Spider is the processor for the purposes of the Data Protection Legislation.
7.5.2 the personal data may be transferred or stored outside the EEA or the country where the School and the Users are located in order to carry out the Services and School Spider’s other obligations under the Contract .
7.6 Without prejudice to the generality of clause 7.4, the School will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to School Spider for the duration and purposes of the Contract so that School Spider may lawfully use, process and transfer the personal data in accordance with the Contract on the School’s behalf.
7.7 Without prejudice to the generality of clause 7.4, School Spider shall, in relation to any personal data processed in connection with the performance by School Spider of its obligations under the Contract:
7.7.1 process that personal data only on the documented written instructions of the School;
7.7.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(a) the School or School Spider has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) School Spider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) School Spider complies with reasonable instructions notified to it in advance by the School with respect to the processing of the personal data;
7.7.3 assist the School, at the School’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;
7.7.4 notify the School without undue delay on becoming aware of a personal data breach;
7.7.5 at the written direction of the School, delete or return personal data and copies thereof to the School on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
7.7.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and immediately inform the School if, in the opinion of School Spider, an instruction infringes the Data Protection Legislation.
7.8 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
7.9 The School consents to School Spider appointing each of Impelling Solutions Ltd, Digital Ocean Limited and Wonde Ltd as a third-party processor of personal data under the Contract. School Spider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. School Spider shall not be responsible for any loss, destruction, alteration or disclosure of School Data caused by any third party processor appointed by it pursuant to this clause 7, subject to these Conditions.
7.10 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
8. THIRD PARTY PROVIDERS
The School acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. School Spider makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the School, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the School and the relevant third party, and not School Spider. School Spider recommends that the School refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. School Spider does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
9. CHARGES AND PAYMENT
9.1 In consideration for the provision of the Services, the School shall pay School Spider the Charges in accordance with this condition 9.
9.2 All amounts payable by the School exclude amounts in respect of value added tax (“VAT”), which the School shall additionally be liable to pay to School Spider at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
9.3 School Spider shall submit invoices for the Charges plus VAT if applicable to the School annually in advance.
9.4 The School shall pay each invoice due and submitted to it by School Spider, within 14 days of receipt, to the bank account nominated in writing by School Spider.
9.5 If the School fails to make any payment due to School Spider under the Contract by the due date for payment, then, without limiting School Spider’s remedies under clause 10.1 (Termination):
9.5.1 the School shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.5.2 School Spider may suspend all Services until payment has been made in full.
9.6 All amounts due under the Contract from the School to School Spider shall be paid by in full without any set-off, counterclaim,deduction or withholding (other than any deduction or withholding of tax as required by law).
9.7 School Spider may increase its Charges from time to time. Any such increase shall be notified to the School not less than 30 days prior to the anniversary of the Services Start Date. The increased Charges shall take effect from the anniversary of the Services Start Date.
10. LIMITATION OF LIABILITY
10.1 Except as expressly and specifically provided in this agreement:
10.1.1 the School assumes sole responsibility for results obtained from the use of the Services and the Documentation by the School, and for conclusions drawn from such use. School Spider shall have no liability for any damage caused by errors or omissions in any information,instructions or scripts provided to School Spider by the School in connection with the Services, or any actions taken by School Spider at the School’s direction;
10.1.2 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 this agreement;and
10.1.3 the Services and the Documentation are provided to the School on an “as is” basis.
10.2 Nothing in this agreement excludes the liability of School Spider:
10.2.1 for death or personal injury caused by School Spider’s negligence; or
10.2.2 for fraud or fraudulent misrepresentation.
10.3 Subject to clause 10.1 and clause 10.2:
10.3.1 School Spider shall not be liable whether in tort (including for negligence or breach of statutory duty), contract,misrepresentation, restitution or otherwise for:
(a) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; or
(b) any loss or damage arising from access by a third party to an account or the platform as a result of a user setting a weak or an insecure password, or sharing a password with a third party or any other breach of these terns and conditions; and
10.3.2 School Spider’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 the Contract shall not exceed the annual Charges paid for the Services in respect of the Initial Subscription Term or the Renewal Period (as applicable) during which the claim arose.
11. TERMINATION
11.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
11.1.1 the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
11.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
11.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 Without affecting any other right or remedy available to it, School Spider may terminate the Contract with immediate effect by giving written notice to the School if the School fails to pay any amount due under the Contract on the due date for payment.
11.3 On termination of the Contract for what ever reason:
11.3.1 the School shall immediately pay to School Spider all of School Spider’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, School Spider may submit an invoice, which shall be payable immediately on receipt;
11.3.2 all licences granted under this agreement shall immediately terminate and the School shall immediately cease all use of the Services and/or the Documentation;
11.3.3 each party shall return and make no further use of any equipment, property,Documentation and other items (and all copies of them) belonging to the other party;
11.3.4 School Spider may destroy or otherwise dispose of any of the School Data in its possession, unless School Spider receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the School of the then most recent back-up of the School Data.School Spider shall use reasonable commercial endeavours to deliver the back-up to the School within 30 days of its receipt of such a written request, provided that the School has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The School shall pay all reasonable expenses incurred by School Spider in returning or disposing of School Data; and
11.3.5 any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
11.3.6 termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12. GENERAL
12.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2 Assignment and other dealings.
12.2.1 The School shall not assign, transfer, charge,subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without School Spider’s prior written consent.
12.2.2 School Spider may at any time assign, transfer,charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
12.3 Confidentiality.
12.3.1 Each party undertakes that it shall not at anytime disclose to any person any confidential information concerning the business, affairs, customers, employees, pupils, clients or suppliers of the other party, except as permitted by clause 12.3.
12.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives,subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3.3 Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4 Entire agreement.
12.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.4.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.5 Variation.No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6 Waiver.
12.6.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
12.6.2 A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Severance.If any provision or part-provision of the Contract is or becomes invalid,illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.7 shall not affect the validity and enforce ability of the rest of the Contract.
12.8 Notices.
12.8.1 Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract, or such other address as may have been notified bythat party for such purposes, or sent by fax to the other party’s fax number asset out in the Contract (if applicable).
12.8.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
12.9 Third party rights.The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
