Software Licence Agreement (Terms and Conditions of Use)

SOFTWARE LICENCE AGREEMENT (TERMS & CONDITIONS)

 

1.               Interpretation

1.1             The definitions and rules of interpretation in this clause apply to the Contract and these Conditions.

Authorised Users: those employees and individuals providing services to or on behalf of the Client or any other individuals who are authorised by the Client to use the Services in relation to the Client’s pupils.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Client: the school, college or other learning organisation purchasing the Services, as identified in the Order.

Client Data: the data inputted by the Client, Authorised Users, or TeacherCloud on the Client’s behalf, for the purpose of using the Services or facilitating the Client’s use of the Services.

Commencement Date: the date on which the Services are to commence, as set out in the Order (or if no  such date is stipulated, the date when the Client first has access to the Services)

Contract: the agreement between TeacherCloud and the Client for the licence of the Software and the supply of the Services, comprising the Order and these conditions

Maintenance Release: a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by TeacherCloud in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Order: the agreed order confirming the Client’s purchase of the Services, which is subject to these conditions.

Services: the subscription services provided by TeacherCloud to the Client, as set out in the Order, including access to the Software.

Software: the online software applications identified in the Order, provided by TeacherCloud as part of the Services, together with any software supplied by TeacherCloud to allow or facilitate the Client to access or integrate with such applications (in each case together with any Maintenance Release).

Subscription Fees: the subscription fees payable by the Client to TeacherCloud for the User Subscriptions, as set out in the Order.

TeacherCloud: theTeacher Cloud Ltd (company no. 06686436) whose registered office is at 34 Orchard House, Sagars Road, Handforth, Wilmslow, Cheshire, SK9 3EE

Term: the duration of the Contract, as set out in the Order.

User Subscriptions: the user subscriptions purchased from TeacherCloud by the Client which entitle Authorised Users to access and use the Services in accordance with the Contract, as set out in the Order.  Typically, this will be one of the following subscription levels:

Access 5 – up to 5 devices and/or Authorised Users

Access 10 – up to 10 devices and/or Authorised Users

Access Unlimited – unlimited devices and/or Authorised Users

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             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.

1.3             Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.4             Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.5             These conditions shall apply to and be incorporated into the Contract.

1.6             No variation to the Contract or these conditions shall be binding unless agreed in writing by an authorised representation of TeacherCloud.

1.7             TeacherCloud shall be entitled to amend these conditions on giving to the Client not less than 30 days’ notice in writing of the proposed changes.

2.               Licence

2.1             Subject to the Client paying the Subscription Fees, TeacherCloud grants to the Client a non-exclusive, non-transferable licence to permit the Authorised Users to use the Services and the Software for the duration of the Contract, on the terms and conditions set out herein.

2.2             The Client shall not access, store, distribute or transmit any Virus or any material during the course of its use of the Services and the Software that:

(a)         is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b)         facilitates illegal activity; or

(c)         is otherwise illegal or causes damage or injury to any person or property,

and TeacherCloud reserves the right, without liability or prejudice to its other rights to the Client, to suspend or disable the Client’s access to any part of the Services or to any material that breaches the provisions of this clause.

2.3             The Client shall not:

(a)             except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or

(b)             attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(c)            license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users in the normal course of the Client’s business, or

(d)            attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; and

2.4             The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify TeacherCloud.

2.5             TeacherCloud will provide the Client with any Maintenance Release generally made available to its Clients.  Subject to clause 2.7 below, TeacherCloud warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Services and the Software.

2.6             The Client accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Services and the Software have not been developed to meet the individual requirements of the Client.

2.7             TeacherCloud reserves the right to make changes to the Services and the Software to conform with any applicable statutory requirements or which do not materially affect their functionality.

3.               User subscriptions

3.1             In relation to the Authorised Users, the Client undertakes that:

(a)         the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions set out in the Order or as purchased from time to time;

(b)         it shall maintain a written, up to date list of its current Authorised Users and provide such list to TeacherCloud upon request; and

(c)         it shall permit TeacherCloud to audit the Services in order to establish the name and password of each Authorised User.

3.2             The Client may, from time to time, purchase additional User Subscriptions via TeacherCloud’s website or by contacting TeacherCloud directly.

4.               Services

4.1             TeacherCloud shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, save for essential maintenance and any previously notified planned maintenance but gives no warranty as to the uptime availability of the Services..

4.2             TeacherCloud will provide the Client with TeacherCloud’s standard support services by email and telephone during Normal Business Hours. Contact details for support requests are available on TeacherCloud’s website at www.evidenceforlearning.net

4.3             The Client shall be responsible for ensuring it has the requisite hardware and network connections (both office based and mobile) to access the Services.

5.               Client data

5.1             The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.  For the avoidance of doubt, TeacherCloud shall have no right or interest in the Client Data.

5.2             In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for TeacherCloud to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by TeacherCloud.

5.3             To the extent the Client Data contains personal data or the parties are otherwise required to hold or process personal data in the performance or use of the Services, the parties shall comply with the terms of the Data Protection Agreement annexed to these Conditions,

6.               third party providers

The Client 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. TeacherCloud 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 Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not TeacherCloud. TeacherCloud recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. TeacherCloud does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7.               Company’s obligations

7.1             TeacherCloud undertakes that the Services will be performed with reasonable skill and care.

7.2             Notwithstanding the foregoing, TeacherCloud:

(a)         does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services, and/or the information obtained by the Client through the Services will meet the Client’s requirements; and

(b)         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 Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.               Client’s obligations

The Client shall:

(a)         comply with all applicable laws and regulations with respect to its activities under the Contract;

(b)         ensure that its Authorised Users use the Services in accordance with the Contract and shall be responsible for any Authorised User’s breach thereof; and

(c)         be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to TeacherCloud’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

9.               Charges and payment

9.1             The Client shall pay to TeacherCloud the Subscription Fees in accordance with this clause 9 and the Order.

9.2             Unless agreed otherwise in writing by TeacherCloud, all Subscription Fees are paid in advance and upon receipt of TeacherCloud’s VAT invoice.

9.3             If TeacherCloud has not received payment on or before the due date, and without prejudice to any other rights and remedies of TeacherCloud:

(a)         TeacherCloud may, without liability to the Client, disable the Client’s account and access to all or part of the Services and TeacherCloud shall be under no obligation to provide any or all of the Services while sums remain unpaid; and

(b)         interest shall accrue on a daily basis on such due amounts at an annual rate of 8% commencing on the due date and continuing until fully paid, whether before or after judgment.

9.4             All amounts and fees stated or referred to in the Contract:

(a)         shall be payable in pounds sterling;

(b)         are non-cancellable and non-refundable; and

(c)         are exclusive of value added tax, which shall be added at the appropriate rate.

10.             Proprietary rights

10.1           The Client acknowledges and agrees that TeacherCloud and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, the Contract does not grant the Client any rights to, or in, 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 and/or the Software.

10.2           TeacherCloud confirms that it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.

11.             Indemnity

11.1           The Client shall defend, indemnify and hold harmless TeacherCloud against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services otherwise than in accordance with these conditions.

11.2           TeacherCloud shall defend the Client, its officers, directors and employees against any claim that the Services infringe any copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, on the condition that:

(a)         TeacherCloud is given prompt notice of any such claim;

(b)         the Client provides reasonable co-operation to TeacherCloud in the defence and settlement of such claim, at TeacherCloud’s expense; and

(c)         TeacherCloud is given sole authority to defend or settle the claim.

11.3           In the defence or settlement of any claim under clause 11.2, TeacherCloud may procure the right for the Client 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 the Contract on 2 Business Days’ notice to the Client without any additional liability or obligation to pay damages or other additional costs to the Client.

11.4           In no event shall TeacherCloud, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

(a)         a modification of the Services by anyone other than TeacherCloud; or

(b)         the Client’s use of the Services in a manner contrary to the instructions given to the Client by TeacherCloud; or

(c)         the Client’s continued use of the Services after notice of the alleged or actual infringement from TeacherCloud or any appropriate authority.

11.5           The foregoing and clause 12.5(a) state the Client’s sole and exclusive rights and remedies, and TeacherCloud’s (including TeacherCloud’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12.             Limitation of liability

12.1           This clause 12 sets out the entire financial liability of TeacherCloud (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

(a)         arising under or in connection with the Contract;

(b)         in respect of any use made by the Client of the Services or any part of them; and

(c)         in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

12.2           Except as expressly and specifically provided in the Contract:

(a)         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

(b)         the Services are provided to the Client on an “as is” basis.

12.3           Nothing in this agreement shall limit or exclude TeacherCloud’s liability for:

(a)         death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)         fraud or fraudulent misrepresentation; or

(c)         any other liability which cannot be limited or excluded by applicable law.

12.4           Subject to clause 12.3, neither party shall be liable to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a)         loss of profits;

(b)         loss of sales or business;

(c)         loss of agreements or contracts;

(d)         loss of anticipated savings;

(e)         loss of use or corruption of software, data or information;

(f)         loss of or damage to goodwill or reputation; or

(g)         any indirect or consequential loss.

12.5           Subject to clause 12.3,

(a)         TeacherCloud’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the Subscription Fees paid by the Client under the Contract.

(b)         TeacherCloud shall be under no liability if the total of any sums then due from the Client to TeacherCloud pursuant to the Contract has not been paid in full.

13.             Term and termination

13.1           The Contract shall, unless otherwise terminated as provided in this clause 13, commence on the Commencement Date and shall continue for the Term, when it shall terminate automatically without notice.

13.2           Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)         the other party fails to pay any amount due under the Contract on the due date for payment and remains in default for 10 Business Days or more;

(b)         the other party commits a material breach of any other term of the Contract 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;

(c)         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 ;

(d)         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 the other party other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of the other party;

(e)         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;

(f)         a receiver or administrative receiver is appointed over the assets of the other party;

(g)         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 13.2(c) to clause 13.2 (f) (inclusive);

13.3           On termination of the Contract for any reason:

(a)         all licences granted under the Contract shall immediately terminate;

(b)         each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;

(c)         TeacherCloud may destroy or otherwise dispose of any of the Client Data in its possession unless TeacherCloud receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Client of the then most recent back-up of the Client Data. TeacherCloud shall use reasonable commercial endeavours to deliver the back-up to the Client within 14 days of its receipt of such a written request, provided that the Client pays its reasonable fees for doing so; and

(d)         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 Contract which existed at or before the date of termination shall not be affected or prejudiced.

14.             Force majeure

Neither party shall be in breach 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.  In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be.  If the period of delay or non-performance continues for 3 months, the party not affected may terminate this agreement by giving written notice to the affected party.

15.             Severance

15.1           If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

15.2           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.

16.             Entire agreement

16.1           The Contract, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

16.2           Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.

17.             Assignment

17.1           The Client shall not, without the prior written consent of TeacherCloud, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

17.2           TeacherCloud may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

18.             Variation

Except as expressly provided in this agreement, no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19.             Third party rights

The Contract 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.

20.             Governing law

The Contract 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.

21.             Jurisdiction

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 the Contract or its subject matter or formation (including non-contractual disputes or claims).