Written on June 17, 2018
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Add-On: any add-on or completely new version of the Software, being a version which contains such significant differences from the previous versions as to be classified by IES as such.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information of commercial value, in whatever form or medium, disclosed by the party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and, for clarity, including (in the case of IES’s information), information pertaining to customers, pricing and marketing information relating to the Software or any of its constituent parts, any test results relating to the use of the Software.
Customer: the customer, whose details are:
Customer Data: The Personal Data inputted by or on behalf of the Customer, Authorised Users, or IES on the Customer’s behalf or otherwise accessed by IES via the permissions granted by the Customer for the purpose of using the Services or facilitating the Customer’s use of the Services.
Defect: any failure on the part of the Software to conform in all material respects with its functionalities and specification as set out by IES.
Documentation: the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable forms supplied by IES via any medium from time to time.
DP Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 (Data Controller, Data Processor, Data Subject, Personal Dataand Processing shall take the meanings given to them therein), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of Personal Data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction and/or any successor and/or subordinate legislation.
Effective Date: means the date on which the agreement is formed between the parties, being the earlier of when:
Free Trial: The free trial offer as described by para 12.6.
IES: Impact Education Software Limited incorporated and registered in England and Wales with company number 11428031 whose registered office is at Suite B6 Swan House The Park, Market Bosworth, Nuneaton, England, CV13 0LJ.
Initial Period: means the initial period detailed:
and which in either any event shall commence on the Effective Date.
Intellectual Property Rights: Patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Loss: means any actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, liabilities, losses, penalties, proceedings and settlements.
Normal Working Hours: shall mean the hours of 09:00 to 17:00 on a Business Day.
Permitted Purposes: has the meaning given to it in clause 15.1.
Proposal: the written proposal issued by IES to the Customer for the provision of the Services incorporating these Terms.
Renewal Period: the period described in clause 17.1.
SENDiT: The trading name of theSoftware.
Services: the subscription services for the Software and Support provided by IES to the Customer under this agreement via the website notified to the Customer by IES from time to time, as more particularly described in the Documentation.
Software: The online special educational needs and disabilities educational software provided by IES as part of the Services including such other features and functionalities as IES may make available from time to time.
Subscription Fees: the subscription fees payable by the Customer to IES for the User Subscriptions and Support, as set out in the Proposal.
Subscription Term: has the meaning given in clause 17.1 (being the Initial Period together with any subsequent Renewal Periods).
Support: the support and maintenance services provided in accordance with these Terms.
Terms: these terms and conditions.
Third-Party Additional Terms: the additional terms and conditions from time to time applicable to the use of the Third-Party Software, which can, where deemed strictly applicable and necessary at IES’s absolute discretion, be made available on request.
Third-Party Software: any software not owned by IES, which is utilised as part of the Software.
Update: a release of the Software that corrects Defects or other faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute an Add-On as determined at the absolute discretion of IES.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 12.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. User subscriptions – PARTICULAR ATTENTION IS DRAWN TO THIS CLAUSE
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with these Terms, the restrictions set out in this clause 2.1 and the remainder of these Terms, IES hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations and which for the avoidance of doubt includes the education of those with special educational needs.
2.2 In relation to the Authorised Users, the Customer undertakes that:
2.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
2.2.3 each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than once per 3 months and that each Authorised User shall keep his password confidential;
2.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to IES within 5 Business Days of IES’s written request at any time or times;
2.2.5 it shall permit IES to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at IES’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and
2.2.6 if any of the audits referred to in clause 2.2.5 reveal that:
(a) any password has been provided to any individual who is not an Authorised User, then without prejudice to IES’s other rights, the Customer shall promptly disable such passwords and IES shall not issue any new passwords to any such individual; and
(b) the Customer has underpaid Subscription Fees to IES, then without prejudice to IES’s other rights, the Customer shall pay to IES an amount equal to such underpayment as calculated in accordance with the standard prices of IES within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 is otherwise illegal or causes damage or injury to any person or property,
and IES reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
2.4.1 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 this agreement:
(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
2.4.2 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
2.4.3 use the Services and/or Documentation to provide services to third parties; or
2.4.4 subject to the remainder of this agreement, 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 except the Authorised Users, or
2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause.
2.5 The Customer shall use its best 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 IES.
2.6 The rights provided under this clause are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Additional user subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number which it subscribes for from time to time and IES shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify IES in writing. IES shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where IES approves the request, IES shall activate the additional User Subscriptions within 5 Business Days of its approval of the Customer’s request.
3.3 If IES approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of IES’s invoice, pay to IES the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Period or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by IES for the remainder of the then current Initial Period or Renewal Period (as applicable) rounded up to the nearest whole month.
4.1 IES shall, during the Subscription Term:
4.1.1 provide the Services;
4.1.2 provide the Support; and
4.1.3 make available the Documentation to the Customer,
on and subject to these Terms.
4.2 The Third-Party Software shall be deemed to be incorporated within the Software for the purposes of this licence (except where expressly provided to the contrary) and where and to the extent applicable, the use of the Third-Party Software shall be subject to the Third-Party Additional Terms.
4.3 IES may, on prior notice to the Customer, make changes to the Services and the Support, provided such changes do not have a material adverse effect on the Customer’s business operations.
4.4 IES shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except in the event where it provides the Support (whether planned or unscheduled) and whilst IES shall where possible provide the Customer with reasonable notice, the Customer accepts that in some circumstances it shall need to carry this out immediately and without notice.
5.1 IES shall make Add-Ons available from time to time together with any applicable related amendments to the Documentation. IES may make such Add-Ons available for use via the internet and will promptly notify the Customer when such are available.
5.2 IES shall notify the Customer of the issue of any Add-On, specifying the following:
5.2.1 the licence fee payable for the Add-On; and
5.2.2 in what way the Add-On differs from the previous version in terms of functionality, performance and compatibility.
5.3 For the avoidance of doubt, nothing in this agreement shall oblige the Customer to take any Add-On provided that where such Add-On is identified as necessary to adopt and the Customer neglects to do so, IES may at its discretion cease to provide the Support without charging additional fees.
IES will provide the Customer with all Updates generally made available to its customers at no charge. Subject to clause 10.2, IES warrants that no Update will impact upon the then existing facilities or functions of the Software in a materially adverse manner.
7. SUPPORT – PARTICULAR ATTENTION IS DRAWN TO THIS CLAUSE
7.1 IES shall ensure that Support is available by chat functionality via the Software and/or its website and e-mail during Normal Working Hours to provide assistance to the Customer in respect of the following:
7.1.1 remedying Defects in the Software; and
7.1.2 providing advice on the use of the Software.
7.2 IES shall use reasonable endeavours to correct Defects notified to it by the Customer in a timely manner appropriate to the seriousness of the circumstances in accordance with the following procedure:
7.2.1 the Customer shall promptly notify IES of all Defects. Where such notification is made orally, the Customer shall provide written confirmation (which may be sent by e-mail) of the notification within 2 Business Days;
7.2.2 within 2 Normal Working Hours of such notification, IES shall acknowledge receipt of the notification and shall determine, in consultation with the Customer, how seriously the Defect affects the Customer’s operations;
7.2.3 if a notified Defect halts or substantially impairs the Customer’s operations which use the Software, IES shall:
(a) start work on correcting the Defect within 4 Normal Working Hours of receipt of such notification;
(b) use all reasonable efforts to correct the Defect as soon as possible; and
(c) keep the Customer informed of progress towards correction of the Defect;
7.2.4 if a notified Defect, while not halting or substantially impairing the Customer’s operations, causes those operations to become significantly slowed or causes substantial inconvenience, IES shall commence work on correcting the Defect within 2 Business Days of receipt of such notification and shall use all reasonable efforts to correct the Defect as soon as possible; and
7.2.5 in the case of Defects other than those specified in clause 7.2.3 and clause 7.2.4, IES shall start work on correcting the Defect as soon as IES’s workload allows and shall use commercially reasonable efforts to correct the Defect.
7.3 The Customer shall be responsible for checking the accuracy and completeness of data (including any Customer Data) used within the Services and shall promptly give sufficient details to IES of any inaccuracies or omissions in order to permit IES to correct them.
7.4 The Customer shall co-operate with IES in any manner reasonably required by IES in order to carry out the Support, including provision of information and data, making available suitably qualified employees and contractors of the Customer and (where and to the extent applicable) provide access to the Customer’s systems for the purpose of carrying out diagnostics and correction of Defects, provided that system access shall be direct or remote, at the Customer’s option, and that, in the latter case, such access will be subject to IES’s compliance with any additional requirements for security and encryption techniques or software which may from time to time be specified by IES.
7.5 The Customer shall, no later than the Effective Date, appoint and maintain for the duration of this agreement an individual to serve as primary contact with IES for the purpose of the provision of the Support, and a deputy to that individual, and shall notify IES of the names of those individuals promptly on their appointment.
7.6 The Customer shall comply, as soon as reasonably practicable, with all IES’s reasonable requests for information or assistance.
8. Customer data
8.1 Each party shall, in performing its obligations under this agreement, comply with the DP Legislation.
8.2 If IES processes any Customer Data when performing its obligations under this agreement, the parties record their intention that the Customer shall be the Data Controller and IES shall be a Data Processor and in any such case:
8.2.1 the Customer shall own all right, title and interest in and to Customer Data;
8.2.2 IES shall have the right to collect and analyse data (including Customer Data and other information) relating to the provision, use and performance of various aspects of the Services and the Software;
8.2.3 the Customer is responsible for obtaining all necessary rights and permissions to enable, and grant such rights and permissions to IES, its contractors and sub-processors to use, provide, store, and process, all data (including any Customer Data), software, and information that the Customer or its authorised users provides, authorises access to, or inputs into the Services;
8.2.4 the Customer warrants that all Customer Data delivered to IES is protected by appropriate technical and organisational measures, including but not limited to the pseudonymisation and encryption of Customer Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it;
8.2.5 the Customer warrants that it has a legal basis under the DP Legislation to enable the lawful transfer of the Customer Data to IES for the duration and the purposes of the agreement and, where required under the DP Legislation, it has obtained the prior and express consent of each data subject to transfer the Customer Data to IES in accordance with DP Legislation and that the Customer is accordingly entitled to transfer the Customer Data to IES so that it may lawfully use, process and transfer the Customer Data in accordance with this agreement;
8.2.6 the Customer acknowledges and agrees that the Customer Data may be transferred or stored outside the EEA or the country where the Customer and the Data Subjects are located in order to carry out the Services and IES’s other obligations under this agreement;
8.2.7 the Customer warrants that the Customer is entitled to transfer the relevant Customer Data to IES having obtained the Data Subject’s express consent so that IES may lawfully use, process and transfer the Customer Data in accordance with this agreement on the Customer’s behalf;
8.2.8 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by DP Legislation; and
8.2.9 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Customer Data or its accidental loss, destruction or damage.
8.3 IES shall:
8.3.1 only carry out processing of any of the Customer Data on the Customer’s and any other lawful instructions given from time to time;
8.3.2 only transfer the Customer Data to countries outside EEA that ensure an adequate level of protection for the rights of the data subject; and
8.3.3 promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
8.4 In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for IES to use reasonable commercial endeavours to restore the Customer Data which has been lost or damaged from the latest back-up of such maintained by the Customer.
8.5 Except as expressly provided otherwise, this agreement does not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in any (non-personal) data.
9. Third party providers
10. IES’s obligations
10.1 IES undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
10.2 The undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to IES’s instructions, or modification or alteration of the Services by any party other than IES or IES’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, IES will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 10.1. Notwithstanding the foregoing, IES:
10.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
10.2.2 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 Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.3 This agreement shall not prevent IES 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 this agreement.
10.4 IES warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
11. Customer’s obligations – PARTICULAR ATTENTION IS DRAWN TO THIS CLAUSE
11.1 The Customer shall:
11.1.1 provide IES with all necessary:
(a) co-operation in relation to this agreement; and
(b) access to such of the Customer’s premises, information and data, and such office accommodation and other facilities, as may be reasonably required by IES,
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
11.1.2 comply with all applicable laws and regulations with respect to its activities under this agreement;
11.1.3 carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, IES may adjust any agreed timetable or delivery schedule as reasonably necessary;
11.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms and shall be responsible for any Authorised User’s breach of this agreement;
11.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for IES, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
11.1.6 ensure that its network and systems comply with the relevant specifications provided by IES from time to time; and
11.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links to enable it to continue to receive the Services and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
12. Charges and payment – PARTICULAR ATTENTION IS DRAWN TO THIS CLAUSE
12.1 The Customer shall pay the Subscription Fees to IES in accordance with this clause 12 and where time for payment of such shall be of the essence.
12.2 The Customer shall on entering into this agreement provide to IES (as agreed between the parties):
12.2.1 valid, up-to-date and complete credit card details or approved purchase order information acceptable to IES and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card details to IES, the Customer hereby authorises IES to bill such credit card:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Period; and
(b) subject to clause 17.1, at the end of each Initial Period for the Subscription Fees payable in respect of the next Renewal Period; or
12.2.2 relevant valid, up-to-date and complete contact and billing details such that IES may raise invoices in respect of the Subscription Fees from time to time. Such invoices shall be payable by the Customer to IES without set-off, counterclaim, withholding or deduction within 30 days of the date of the invoice.
12.3 If IES has not received payment via the agreed method of payment within 5 Business Days after the due date, and without prejudice to any other rights and remedies of IES:
12.3.1 IES may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and IES shall be under no obligation to provide any or all of the Services while the payment(s) concerned remain unpaid; and
12.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
12.4 All amounts and fees stated or referred to in this agreement:
12.4.1 shall be payable in pounds sterling;
12.4.2 are, save where otherwise provided for, non-cancellable and non-refundable;
12.4.3 are exclusive of value added tax, which shall be added to IES’s invoice(s) at the appropriate rate.
12.5 IES shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased and/or the support fees payable pursuant to these Terms at the start of each Renewal Period upon no less than 3 months’ prior notice to the Customer.
12.6 Free Trial Offer. Effective as of 1 September 2019. This offer (the ‘’4-week Free Trial’’), which is made to selected Customers by Impact Education Software Ltd entitles Customers chosen by IES access to the SENDiT service for a period of four (4) weeks [28 days] free of charge from the moment that a reimbursable one (£1) pound is made to The Company. By submitting your payment details, you accept the 4-week Free Trial offer and
12.6.2 Acknowledge and Agree to IES and SENDiT Terms and Conditions of Use and these Free Trial Offer Terms.
12.6.3 Cancellation. If you decide that you do not want to become a paying user of the Software or IES Services upon the lapse of the Free Trial Offer period, you have to terminate your SENDiT service by the end of the Free Trial Offer. You may only use this Free Trial Offer once. IES reserves the right, in its absolute discretion, to withdraw or to modify this Free Trial Offer and/or the Free Trial Offer Terms and Conditions at any time and without prior notice with no liability.
12.6.4 Instructions to cancel renewal. You can cancel your subscription renewal any time by contacting IES via email (email@example.com) or via phone on +44(0)7722098770.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 The Customer acknowledges and agrees that IES and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation.
13.2 IES confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
13.3 The Customer shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that IES may consider necessary or desirable to perfect the right, title and interest of IES in and to the Intellectual Property Rights in the Services.
13.4 The Customer shall use reasonable endeavours to prevent any infringement of IES’s Intellectual Property Rights in the Services and shall promptly report to IES any such infringement that comes to its attention. In particular, the Customer shall:
13.4.1 ensure that each Authorised User, before starting to use the Services, is made aware that the Services are proprietary to IES and that it may only be used and copied in accordance with this agreement;
13.4.2 implement suitable disciplinary procedures for employees who make unauthorised use or copies of the Services; and
13.4.3 not permit third parties to have access to the Services without the prior written consent of IES, who may require that such third party executes a written confidentiality agreement before being given access to the Services.
13.5 The Customer expressly agrees that IES may use any of the Customer’s trade marks, service marks, trade names and rights in get-up in any marketing or publicity materials including but not limited to the use of the aforementioned on IES’ website.
13.6 Notwithstanding any other provision in this agreement, clause 13.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.
14.1 In order to protect the Confidential Information and Intellectual Property Rights of IES, the Customer covenants with IES that it shall not throughout the Subscription Term and until the period of 12 months after the effective date of termination:
14.1.1 solicit or endeavour to entice away from IES;
14.1.2 employ; or
14.1.3 engage or otherwise facilitate the employment or engagement,
anyone employed or engaged by IES in connection with the Services or in any event who could materially damage the interests of IES if they were involved in any capacity (whether as agent, consultant, director, employee, owner, partner, shareholder, subcontractor or in any other capacity) in any business concern which competes with IES, whether or not such person would be in breach of contract as a result of such employment or engagement without IES’s prior written consent.
14.2 The restrictions imposed on the Customer by clause 14.1 apply to it acting:
14.2.1 directly or indirectly;
14.2.2 through one of its directors, authorised personnel or shareholders; and
14.2.3 on his own behalf or on behalf of, or in conjunction with, any firm, company or person.
14.3 Any consent given by IES in accordance with clause 14.1 shall be subject to the Customer paying to IES a sum equivalent to the greater of 20% of the:
14.3.1 then current annual remuneration of IES’s employee, consultant or subcontractor; or
14.3.2 annual remuneration to be paid by the Customer to that employee, consultant or subcontractor,
where such payment shall be a pre-estimate and reflective of the losses suffered by IES in light of the training and development placed with the applicable employee, consultant or subcontractor and the future losses which may result.
14.4 Each of the restrictions in this clause is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.
15.1 Each party undertakes not to use the other party’s Confidential Information otherwise than in the exercise and performance of its rights and obligations under this agreement (Permitted Purposes).
15.2 In relation to the Customer’s Confidential Information:
15.2.1 IES shall treat as confidential all Confidential Information of the Customer supplied under this agreement. IES shall not divulge any such Confidential Information to any person except to its own employees, and then only to those employees who need to know it for the Permitted Purposes. IES shall ensure that its employees are aware of, and comply with, this clause 15; and
15.2.2 IES may provide any subcontractor with such of the Customer’s Confidential Information as it needs to know for the Permitted Purposes, provided that such subcontractor has first entered into a written obligation of confidentiality owed to IES in terms similar to clause 15.2.1 (which IES shall ensure is adhered to).
15.3 In relation to IES’s Confidential Information:
15.3.1 the Customer shall treat as confidential all Confidential Information of IES contained or embodied in the Software or Documentation, or otherwise supplied to the Customer during the performance of this agreement;
15.3.2 the Customer shall not, without the prior written consent of IES, divulge any part of IES’s Confidential Information to any person other than the employees of the Customer who need to know it for the Permitted Purposes; and
15.3.3 the Customer undertakes to ensure that the persons mentioned in clause 15.3.2 are made aware, before the disclosure of any part of IES’s Confidential Information, that the same is confidential and that they owe a duty of confidence to the Customer in terms similar to clause 15.3.1 (which the Customer shall ensure is adhered to).
15.4 The restrictions imposed by clause 15.1, clause 15.2 and clause 15.3 shall not apply to the disclosure of any Confidential Information which:
15.4.1 is now in, or hereafter comes into, the public domain otherwise than as a result of a breach of this clause 15;
15.4.2 before any negotiations or discussions leading to this agreement was already known by the receiving party and was obtained or acquired in circumstances under which the receiving party was not bound by any form of confidentiality obligation; or
15.4.3 is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to such authorised person to the extent necessary).
15.5 Each party shall notify the other party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information and shall offer reasonable assistance to the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
15.6 This clause 15 shall remain in full force and effect in the event of any termination of this agreement.
16. INDEMNITY AND LIMITATION OF LIABILITY – PARTICULAR ATTENTION IS DRAWN TO THIS CLAUSE
16.1 The Customer shall indemnify IES, keep IES indemnified and hold IES harmless for and against any and all Loss (including any direct, indirect, special or consequential Loss, loss of profit, loss of business, contract, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by IES howsoever arising out of or in connection with:
16.1.1 the Customer’s breach of this agreement or any other legal obligations howsoever arising;
16.1.2 any wilful or negligent act or omission of the Customer, its officers, employees, contractors or agents; and
16.1.3 the Customer’s use of the Software,
whether the same arise in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise.
16.2 Except as expressly and specifically provided in this agreement:
16.2.1 the Customer assumes sole responsibility for results obtained from the use of the Software and receipt of the Services by the Customer, and for conclusions drawn from the same. IES shall have no liability for any damage caused by errors or omissions in any information provided to IES by the Customer in connection with the Software, or any actions taken by IES at the Customer’s direction; and
16.2.2 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.
16.3 Nothing in this agreement limits or excludes the liability of IES for:
16.3.1 death or personal injury caused by IES’s negligence;
16.3.2 fraud or fraudulent misrepresentation; or
16.3.3 any other matter for which it is illegal to limit or exclude liability.
16.4 Subject to clause 16.2 and clause 16.3:
16.4.1 IES shall not be liable whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise for:
(a) any Loss of an indirect, special or consequential nature;
(b) any loss of profits, business, contract or opportunity;
(c) depletion of goodwill or reputation;
(d) loss of or corruption of data or information; and/or
(e) any similar or pure economic loss,
suffered or incurred by the Customer or any third party;
16.4.2 IES’s total aggregate liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise for any Loss arising out of or in connection with the performance or contemplated performance of this agreement shall be limited to the total of all Subscription Fees paid to IES by the Customer in cleared funds during the 12 months immediately preceding the date on which the claim arose; and
16.4.3 in no event shall IES, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged infringement of Intellectual Property Rights is based on:
(a) a modification of the Services or Documentation by anyone other than IES; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by IES; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from IES or any appropriate authority.
16.5 In the defence or settlement of any claim, IES may procure the right for the Customer 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 Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
16.6 The foregoing states the Customer’s sole and exclusive rights and remedies, and IES’s (including IES’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights and confidentiality.
17. Term and termination
17.1 This agreement shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Period and thereafter, this agreement shall automatically renew for successive periods equivalent in length to the Initial Period (each a Renewal Period), unless either party notifies the other party of termination, in writing, at least 3 months (or such other lesser period as is notified in writing to the Customer at the point of sign up) before the end of the Initial Period or any Renewal Period (as the case may be) in which case this agreement shall terminate upon the expiry of the applicable Initial Period or Renewal Period. Payment is due in full on the first day of the Renewal Period.
17.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
17.2.1 the other party commits a breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so;
17.2.2 the other party repeatedly breaches any of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms;
17.2.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
17.2.4 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
17.2.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
17.2.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
17.2.7 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
17.2.8 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
17.2.9 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 10 Business Days;
17.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.2.3 to clause 17.2.9 (inclusive); or
17.2.11 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
17.2.12 IES may, without liability or further obligation to the Customer terminate this agreement on immediate notice in the event that it is no longer able to make use of Third-Party Software and is unable to source a suitable alternative such that the Software ceases to be available. IES reserves the right, in its absolute discretion, to withdraw or to modify this Software Service Agreement and/or the these Terms and Conditions at any time and without prior notice with no liability in the event that the Company deems the Software is being operated at the detriment of IES interests.
17.3 In any event where IES is permitted to terminate the agreement, it shall without prejudice to any of its other rights or remedies, be permitted to suspend the provision of the Services.
17.4 On termination of this agreement for any reason:
17.4.1 the Customer shall immediately pay any outstanding unpaid Subscription Fees and interest due to IES up to the end of the Initial Period or applicable Renewal Period as it would have otherwise been required to do under these Terms;
17.4.2 all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
17.4.3 each party shall (as applicable) return and make no further use of any equipment, property, Software, Documentation and other items (and all copies of them) belonging to the other party;
17.4.4 IES may destroy or otherwise dispose of any of the Customer Data in its possession unless IES receives, no later than 5 Business Days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of any Customer Data held by IES. IES shall use reasonable commercial endeavours to deliver a copy of the Customer Data to the Customer within 30 Business Days of its receipt of such a written request, provided that the Customer has, at that time, paid all Subscription Fees outstanding at and resulting from termination (whether or not due at the date of termination) and that the Customer shall pay all reasonable expenses incurred by IES in returning or disposing of Customer Data; and
17.4.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
17.5 Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination.
17.6 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
17.7 Notwithstanding its obligations in this clause, if a party is required by law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
18. Assignment and subcontracting
18.1 Save to the extent provided for elsewhere in this agreement, this agreement is personal to the Customer and it shall not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of IES (such consent not to be unreasonably withheld or delayed).
18.2 IES may assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Customer.
18.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. Force Majeure
IES shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of IES or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of these Terms and the Proposal, the provisions in the Proposal shall prevail over the Terms.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23. Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
24.2 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.
25. Entire Agreement
25.1 This agreement 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.
25.2 Each party acknowledges that in entering into this agreement 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 this agreement.
26. No Partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
27. Third Party Rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
28.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be delivered by:
28.1.1 hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
28.1.2 by email to the addresses set out within the Proposal, provided on signing up to the Services or (in the case of IES) to firstname.lastname@example.org(as the case may be).
28.2 Any notice or communication shall be deemed to have been received:
28.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
28.2.2 if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
28.2.3 if sent by email at 9:00 am on the second Business Day after transmission.
28.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include fax.
29. Dispute Resolution
29.1 It is the intention of the parties to settle amicably by negotiation all disagreements and differences of opinion on matters of performance, procedure and management arising out of this agreement. Accordingly, it is agreed that the procedure set out in this clause 29 shall be followed before the serving of written notice terminating this agreement, or in relation to any matter of dispute between the parties concerning performance, procedure or management.
29.2 If any disagreement or difference of opinion arises out of this agreement, directors for each party shall meet to attempt resolution. If, within 20 Business Days of the matter first having been referred to the directors, no agreement has been reached as to the matter in dispute, the dispute resolution process set out in this clause 29 shall be deemed to have been exhausted in respect of the matter in dispute, and each party shall be free to pursue the rights granted to it by this agreement in respect of such matter without further reference to the dispute resolution process.
29.3 For the avoidance of doubt, this clause 29 shall not prevent either party from seeking injunctive relief in the case of any breach or threatened breach by the other of any obligation of confidentiality or any infringement by the other of the first-named party’s Intellectual Property Rights.
30. Governing Law and Jurisdiction
30.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
30.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Copyright © 2019 Impact Education Software Ltd. All rights reserved.
Impact Education Software Ltd
6thFloor Blue Tower,
Media City, Manchester
Impact Education Software operates www.Impacteducationsoftware.com (the "Site"). This page informs you of our policies regarding the collection, use and disclosure of Personal Information we receive from users of the Site.
We use your Personal Information only for providing and improving the Site. By using the Site, you agree to the collection and use of information in accordance with this policy.
Information Collection And Use
While using our Site, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you. Personally identifiable information may include, but is not limited to your name and contact details ("Personal Information").
Like many site operators, we collect information that your browser sends whenever you visit our Site ("Log Data").
This Log Data may include information such as your computer's Internet Protocol ("IP") address, browser type, browser version, the pages of our Site that you visit, the time and date of your visit, the time spent on those pages and other statistics.
In addition, we may use third party services such as Google Analytics that collect, monitor and analyse this information.
We may use your Personal Information to contact you. You will never be sent promotional or marketing material from us unless you have directly requested to do so.
Cookies are files with small amount of data, which may include an anonymous unique identifier. Cookies are sent to your browser from a web site and stored on your computer's hard drive.
Like many sites, we use "cookies" to collect information. You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Site.
The security of your Personal Information is important to us, but remember that no method of transmission over the Internet, or method of electronic storage, is 100% secure. While we strive to use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security.
The statement below complies with section 54 of the Modern Slavery Act 2015, it forms our slavery and human trafficking statement in 2018 and beyond.
We do not tolerate slavery or human trafficking in our organisation or in our supply chain. We will never knowingly deal with any organisation that is connected to slavery or human trafficking.
We have assessed that we are at a low risk of exposure to slavery and human trafficking. We are not aware of any areas of our operations and supply chain likely to lead to a breach of the Modern Slavery Act 2015.
We mitigate this risk by:
Impact Education Software will always endeavor to eliminate any risk of exposure to slavery and human trafficking and will always actively co operate with the relevant legal authorities.