SCHOOL JOTTER LICENCE AND SERVICES AGREEMENT
TERMS AND CONDITIONS
- Definitions and Interpretation
- In this Agreement (unless the context requires otherwise) the following terms shall have the following meanings:
“Admin Users” means employees, agents and independent contractors of the Customer, who are authorised by the Customer to use the Software to administer and manage Customer Content on the Customer’s Website(s). “Agreement” means the Agreement between Webanywhere and the Customer, under which the Customer is permitted to use the Software and for the provision of related Services, comprising the Order Form and these Terms and Conditions. “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. “Confidential Information” means information that is proprietary or confidential and which is either clearly labelled as such, or identified as such on disclosure, or which would be understood by a reasonable business person to be confidential or commercially sensitive in nature. “Customer App(s)” means the mobile app, or mobile Apps, of the Customer created and/ or managed pursuant to this Agreement using the Software. “Customer Content” means any data, information, text, images, photographs, artwork, sound files and any other content or materials supplied by the Customer, which is inputted into the Software or uploaded to the Customer Website(s), by the Customer, its Admin Users, or Webanywhere on the Customer’s behalf, in connection with this Agreement. “Customer Site(s)” means the specific school(s), college(s) or other educational site(s) or location(s), in respect of which the Customer is permitted to use the Software to create and manage the Customer Website(s), as detailed in the Order Form. “Customer Website(s)” means the website, or websites, of the Customer created and/ or managed pursuant to this Agreement using the Software. “Fees” means the fees payable by the Customer to Webanywhere under this Agreement, as detailed in the Order Form. “Initial Term” means the initial term of this Agreement, as set out in the Order Form. “Intellectual Property Rights” means patents, rights to inventions, copyright 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, including the right to sue for and recover damages for past infringements. “Order Form” means the Order Form issued by Webanywhere in relation to the Software and Services, which references these Terms and Conditions and/or to which these Terms and Conditions are appended. “Start Date” means the date on which the Agreement shall commence (or be deemed to have commenced) as detailed in the Order Form. “Normal Business Hours” 8.00 am to 4.30 pm local UK time, each Business Day. “Renewal Term” means the period described in clause 15.1. “Services” means any domain name purchase, website build, mobile app build, website hosting, training, support and maintenance, school photography, drone footage or other services, to be provided by Webanywhere to the Customer in connection with the Software and/ or Customer Website(s) and/ or Customer App(s), as detailed in the Order Form. “Software” means the software products and modules to be licensed by Webanywhere to the Customer under this Agreement, for the purpose of enabling the Customer to create and/ or manage the Customer Website(s) and/ or Customer Apps, as detailed in the Order Form. “Term” has the meaning given in clause 15.1 (being the Initial Term together with any subsequent Renewal Term). “Usage Rights” means the usage rights purchased by the Customer under this Agreement, as further detailed in clause 3 and defined in the Order Form.
- In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; (c) 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; and (d) 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.
- In this Agreement (unless the context requires otherwise) the following terms shall have the following meanings:
- Licence to Use Software
- Subject to the Customer paying the applicable Fees when due and complying with its other obligations under this Agreement, Webanywhere hereby grants to the Customer a non-exclusive, non-transferable right to use (and to permit its Admin Users to use) the Software during the Term solely for the purpose for which it was intended, namely to create and/ or manage the Customer Website(s) and/ or Customer App(s).
- Software Usage Rights
- The Customer acknowledges and agrees that the Order Form may stipulate limits on the Customer’s rights to use the Software, or other conditions or parameters affecting its use of the Software, (“Usage Rights“), including (without limitation) details of the specific Customer Site(s) in respect of which the Customer is permitted to use the Software (and to which the Customer Website(s) and/ or Customer App(s) must relate).
- In relation to Usage Rights, the Customer undertakes that: (a) its use of the Software will not exceed any applicable Usage Rights; (b) it will not use the Software to create Customer Website(s) or Customer App(s) in any way which would exceed or contravene the Usage Rights; (c) it will ensure that each Admin User shall be issued with and keep a secure password for his or her use of the Software and that each Admin User shall keep his or her password confidential and secure; and (d) it shall maintain complete and accurate records of the Admin Users it has permitted to use the Software and shall make such records available to Webanywhere for inspection at any time on request.
- The Customer shall permit Webanywhere (or Webanywhere’s designated auditor) to audit the Customer’s use of the Software, as well as the Customer Website(s), in order to establish whether any applicable Usage Rights have been complied with or exceeded and to ensure that the Software has been used in compliance with this Agreement more generally. Each such audit may be conducted no more than once per quarter, at Webanywhere’s expense (except as provided for in clause 3.4), 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/ activities.
- If any of inspection of the Customer’s records under clause 3.2, or audit under clause 3.3, reveals that the Customer has exceeded or contravened any applicable Usage Rights, or underpaid Fees due to Webanywhere, or otherwise used the Software in breach of this Agreement, then without prejudice to Webanywhere’s other rights, the Customer shall (as applicable) compensate Webanywhere for any use of the Software which has exceeded the Usage Rights, or pay to Webanywhere an amount equal to any underpayment of Fees, or remedy any other non-compliance with this Agreement (as Webanywhere may reasonably require). Under such circumstances the Customer shall also reimburse Webanywhere in respect of any costs it has incurred in undertaking the inspection or audit.
- Restrictions on use of Software
- The Customer shall not, 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 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 (c) access or use all or any part of the Software in order to build a product or service which competes with the Software; (d) use the Software to provide services to third parties; or (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the Admin Users; or (f) introduce or permit the introduction of, any virus into Webanywhere’s network and information systems.
- The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify Webanywhere.
- The rights granted under this Agreement are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless expressly agreed otherwise in writing by Webanywhere.
- Provision of Services
- Subject to the Customer paying all applicable Fees by the due date for payment and abiding by its other obligations under this Agreement, Webanywhere shall provide the Services detailed in the Order Form.
- Purchase of Domain Names: Where Webanywhere purchases domain names on behalf of the Customer, payment for the domain names and renewal of the domain names is the responsibility of the Customer. The loss or cancellation of any domain names brought about by non-payment or late payment of domain name registration or renewal fees is not the responsibility of Webanywhere. The Customer should keep a record of the due dates for payment and renewal and ensure that payment is made/ received in good time.
- Website and Mobile App Build Services: Where the Services include Website Build Services and/ or Mobile App Build Services to be provided by Webanywhere, Webanywhere shall build, or assist the Customer to build, the Customer Website(s) and/ or Customer App(s) (as applicable), as detailed in the Order Form. Webanywhere will provide the Customer with an opportunity to review the appearance and content of the Customer Website(s) and/ or Customer App(s) during the design phase and once the overall application development is completed. During and at the completion of the Website Build and/ or Mobile App Build project, such materials will be deemed to be accepted and approved by the Customer, unless the Customer notifies Webanywhere otherwise within ten (10) business days of the date that the materials are made available to the Customer for approval. Provided that the Customer provides reasonable cooperation and assistance (including copies of all required Customer Content) in a timely manner and in accordance with clause 5.7, Webanywhere will use reasonable endeavours to complete the Website Build Services and/ or Mobile App Build Services and implement the Customer Website(s) and/ or Customer App(s) by any dates detailed in the Order Form or agreed with the Customer. However, time shall not be of the essence in relation to the completion of any such Services.
- Hosting Services: Where the Services include Hosting Services, Webanywhere shall arrange for the Customer Website(s) and/ or Customer App(s) to be hosted and shall use commercially reasonable endeavours to ensure that they are available for use (“Uptime“) for not less than 99% of the time during the Term (excluding periods of downtime due to “Planned
Maintenance“). Wherever possible Planned Maintenance will be carried out between the hours of 8pm and 6am (in the UK).
- Training Services: Where the Services include Training Services, then Webanywhere will provided training for Admin Users in how to use the Software to manage content on the Customer Website(s) and/ or Customer App(s), as further detailed in the Order Form. Unless expressly agreed otherwise, all training shall be provided remotely and not in person. It is the Customer’s responsibility to ensure that all Admin Users attend any training sessions at the agreed times.
- Support and Maintenance Services: Where the Services include Support and Maintenance Services, Webanywhere will provide support in relation to the Customer’s use of the Software and Customer Website(s) and/ or Customer App(s) during the Term. Support consists of help in resolving incidents (either permanently or via an acceptable workaround) and offering other assistance and advice. Any requests for amendments to the Customer Website(s) and/ or Customer App(s) fall outside the scope of the Support and Maintenance Services and are chargeable at the rates defined in the Webanywhere standard price list in effect at the time of the request. Support calls will be judged on the basis of impact and severity and the priority of such shall be dealt with accordingly.
- School Photography/ Drone Footage: Where the Services include School Photography or Drone Footage, Webanywhere will arrange for a photographer to attend the Site on a pre-agreed time and date to take the requested photographs or footage, as further detailed in the Order Form. It is the sole responsibility of the Customer to ensure that the photographer is able to access the Site and any agreed people or resources during the allotted time.
- Provision of Customer Content: Where Webanywhere is providing Website Build Services and/ or App Build Services, Webanywhere will require the Customer to provide Customer Content (including website content, text, images, movies and sound files) in a satisfactory and expedient manner. To undertake these Services the parties must ensure that projects are carried out at the scheduled time. If the Customer agrees to provide required Customer Content or other information or approvals or consents by a stated date and fails to do so within ten business (10) days of that date, Webanywhere reserves the right to close the Website Build or Mobile App Build project (as applicable) and the balance of any Fees remaining to be paid to Webanywhere shall become payable immediately.
- Web Browsers: Customer Website(s) will be designed to work with the latest versions of the following popular browsers at the relevant time: Firefox, Microsoft Edge, Google Chrome and Safari. Mobile apps will be published to the Apple Appstore for use on iOS devices and will be published to the Google Play Store for use on Android devices and will be designed to run on the latest versions of the iOS and Android operating systems. Webanywhere cannot accept responsibility for Customer Website(s) or Customer App(s) which do not perform acceptably in new versions of browsers released after the Customer Website(s) or Customer App(s) have been designed or new iOS/Android versions. As such, Webanywhere reserves the right to charge for any work involved in changing the Customer Website(s) or Customer App(s) to enable them to work with updated browser software or operating systems.
- Webanywhere Branding and Marketing: A link to Webanywhere will appear in either small type or by a small graphic at the bottom of any Customer Website(s) and Customer App(s). If a graphic is used, it will be designed to fit in with the overall site or app design. If a client requests that the design credit be removed from any Customer Website(s), a nominal fee of 10% of the total Website Build Services Fees will be applied. When total Website Build Services Fees are less than £5000, a fixed fee of £500 will be applied. The Customer also agrees that any Customer Website(s) and/ or Customer App(s) developed by Webanywhere for the Customer may be presented in Webanywhere’s portfolio.
- Webanywhere’s General Obligations
- Webanywhere undertakes to provide the Software and Services in accordance with the terms of this Agreement and using reasonable skill and care.
- The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Software or Services contrary to Webanywhere’s instructions, or modification or alteration of the Software or Services by any party other than Webanywhere (or Webanywhere’s duly authorised contractors or agents). If the Software or any Service does not conform with the foregoing undertaking, Webanywhere will, at its expense, use reasonable 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 6.1.
- Webanywhere does not warrant that: (a) the Customer’s use of the Software or any Services will be uninterrupted or error-free; or (b) that the Software or Services will meet the Customer’s requirements; or (c) the Software or Services will be free from viruses or vulnerabilities.
- Webanywhere is not responsible for any delays, delivery failures, or any other loss or damage or issues resulting from the transfer of data over public, third party or Customer communications networks and facilities, including the internet, and the Customer acknowledges that the Software and Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- Customer’s General Obligations
- The Customer shall: (a) provide Webanywhere with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by Webanywhere in order to provide the Software and Services, including but not limited to Customer Content and security access information; (b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement; (c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner; (d) ensure that the Admin Users use the Software and Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Admin User’s breach of this Agreement; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Webanywhere, its contractors and agents to perform their obligations under this Agreement; (f) ensure that its network and systems comply with the relevant specifications provided by Webanywhere from time to time; and (g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Webanywhere’s data centres, 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.
- The Customer shall own all right, title and interest in and to all Customer Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Content.
- Fees and Payment
- The Customer shall pay the Fees to Webanywhere in accordance with the Order Form and this clause 8. Unless stated otherwise in the Order Form, all Fees will be invoiced upon the Customer’s acceptance of the Order Form and all invoices issued by Webanywhere shall be paid within thirty (30) days of receipt by the Customer
- Unless stated otherwise, all Fees and other amounts referred to in this Agreement: (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 payable (and added to Webanywhere’s invoice(s)) at the appropriate rate.
- If the Customer fails to make payment of any sum due to be paid to Webanywhere under this Agreement by the due date for payment, then without prejudice to any other rights and remedies available to Webanywhere, Webanywhere may, without liability to the Customer: (a) disable or suspend the Customer’s access to and/ or use of the Software, and/ or publication of any Customer Website(s), until the outstanding sums are paid in full; and/ or (b) suspend performance of any Services, while the outstanding amounts concerned remain unpaid; and/ or (c) charge interest shall on a daily basis on such overdue amounts at an annual rate equal to 4% over the then current base lending rate of Barclays Bank PLC from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
- Each website shall automatically renew for a period of 12 months unless either party gives the other written notice of termination at least (30) days prior to expiration of the current term.
- Acceptable Use and Customer Content
- The Customer agrees that it is solely responsible for any Customer Content it inputs into the Software, or uploads or publishes on the Customer Website(s) or Customer App(s), and for the actions of its Admin Users.
- The Customer shall comply with all applicable laws, regulations and codes of practice in using the Software and in connection with any Customer Website(s) or Customer App(s) or any Customer Content published or disseminated pursuant to this Agreement.
- Without prejudice to the generality of the Customer’s obligations under clause 9.1 and 9.2 above, the Customer agrees that it shall not (and shall procure that its Admin Users shall not), in using the Software or any Services, access, store, distribute, transmit or publish any Customer Content that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property.
- Webanywhere reserves the right, without liability to the Customer and without prejudice to its other rights, to remove or delete any Customer Content, and/ or to disable or suspend any Customer Website(s) or Customer App(s), or the Customer’s access to or use of the Software or any Customer Website(s) or Customer App(s), in the event that Webanywhere believes that there may have been a breach of the provisions of this clause 9.
- Intellectual Property Rights
- The Customer (or its licensors) shall own all Intellectual Property Rights in the Customer Content. The Customer, hereby grants to Webanywhere a non-exclusive, Worldwide, royalty-free right and licence to use the Customer Content for the purposes of supplying the Software and Services and fulfilling its obligations under this Agreement.
- Subject to clause 10.1, the Customer acknowledges and agrees that Webanywhere (or its licensors) shall own all Intellectual Property Rights in the Software and Services, or arising from the Services (including in any Customer Website(s) or Customer App(s) created under this Agreement). 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 Software or Services.
- Webanywhere confirms that it has all the rights in relation to the Software and Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
- Data Protection
- Each of the parties agree to comply with all applicable laws concerning data protection and privacy in connection with their activities under or in connection with this Agreement. In particular, the Customer agrees to comply with such laws in connection with any Customer Content it may choose to input into the Software or upload or publish to/ on the Customer Website(s) or Customer App(s).
- To the extent that Webanywhere processes any personal data on behalf of the Customer in performing its obligations under this Agreement, the parties agree to comply with their respective obligations under the Data Processing Addendum appended to these Terms and Conditions at Annex 1.
- Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
- Subject to clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
- Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
- A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- The Customer acknowledges that details of the Software and Services, constitute Webanywhere’s Confidential Information. Webanywhere acknowledges that the Customer Content may include Confidential Information of the Customer.
- The above provisions of this clause 12 shall survive termination of this Agreement, however arising.
- The Customer shall defend, indemnify and hold harmless Webanywhere against claims, actions, proceedings and related losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software and Services and/ or any Customer Website(s) and/ or any Customer App(s) created or published pursuant to this Agreement, including (without limitation): (i) any claims made by third parties arising from the Customer’s breach of its obligations under clause 9; or (ii) any claims alleging that any Customer Content infringes the Intellectual Property Rights or other rights of any third party. In the event that Webanywhere is given notice of any claim which may give rise to a liability on the part of the Customer under this clause, then: (a) Webanywhere shall give the Customer prompt notice of any such claim; and (b) Webanywhere shall provide reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense. The indemnity under this clause shall not apply to the extent that any claim was caused by the negligence or any default on the part of Webanywhere.
- Webanywhere shall defend the Customer against any claim that the Customer’s use of the Software or Services in accordance with this Agreement infringes any Intellectual Property Rights owned by any third party (“IP
Claim“), and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) Webanywhere is given prompt notice of any such claim; (b) the Customer provides reasonable co-operation to Webanywhere in the defence and settlement of such claim, at Webanywhere’s expense; and (c) Webanywhere is given sole authority to defend or settle the claim.
- In the defence or settlement of any IP Claim, Webanywhere may: (a) procure the right for the Customer to continue using the Software or Services; or (b) replace or modify the Software or Services so that it/ they become non-infringing; or (c) if the preceding remedies are not reasonably available, terminate this Agreement on notice to the Customer in which event that the Customer shall be entitled to receive an appropriate refund in respect of any pre-paid Fees paid in relation to the unexpired term of the Agreement, but Webanywhere shall have no additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
- In no event shall Webanywhere (or its employees, agents and sub-contractors) be liable to the Customer under clause 13.2 to the extent that an alleged IP Claim is based on: (a) a modification of the Software or Services by anyone other than Webanywhere; or (b) the Customer’s use of the Software or Services in a manner contrary to the instructions given to the Customer by Webanywhere or contrary to the terms of this Agreement; or (c) the Customer’s use of the Software or Services after notice of the alleged or actual infringement from Webanywhere or any appropriate authority; or (d) any Customer Content, or other information or materials supplied by the Customer, or Webanywhere following any instructions given by the Customer.
- The foregoing states the Customer’s sole and exclusive rights and remedies, and Webanywhere’s (including Webanywhere’s employees’, agents’ and sub-contractors’) entire obligations and liability, in respect of any IP Claim.
- Limitation of liability
- Except as expressly and specifically provided in this Agreement:(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 (c) the Software and Services are provided to the Customer on an “as is” basis.
- Nothing in this Agreement excludes the liability of Webanywhere: (a) for death or personal injury caused by Webanywhere’s negligence; or (b) for fraud or fraudulent misrepresentation; or (c) for any other liability which may not be limited or excluded under applicable law.
- Subject to clause 14.1 and clause 14.2, Webanywhere shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for 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.
- Subject to clause 14.1 and clause 14.2, Webanywhere’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 this Agreement shall, in respect of liabilities arising in the Initial Term or any Renewal Term, be limited to an amount equal to the total Fees actually paid to Webanywhere in respect of the Initial Term or Renewal Term (as applicable).
- Term and Termination
- This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Commencement Date and shall continue for the Initial Term. Following the end of the Initial Term, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Term“), unless: (a) either party notifies the other party of termination, in writing, at least fourteen (14) days before the end of the Initial Term (or any Renewal Term), in which case this Agreement shall terminate upon the expiry of the applicable Initial or Renewal Term; or (b) otherwise terminated in accordance with the provisions of this Agreement. The Initial Term together with any subsequent Renewal Terms constitute the “Term“.
- 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: (a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment; or (b) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
- 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: (a) 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; (b) 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; (c) the other party applies to court for, or obtains, a moratorium under Part A1 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 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; (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 (being a company, partnership or limited liability partnership); (f) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver; (g) 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; (h) 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 14 days; (i) 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 preceding vents mentioned in this clause; (j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
- Post Termination
- On termination (or expiry) of this Agreement for any reason: (a) all rights and licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Software and any Services; (b) 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; and (c) 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
- On termination (or expiry) of this Agreement for any reason, Webanywhere may destroy or otherwise dispose of or delete from its systems any of the Customer Content in its possession unless Webanywhere receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery of a copy of the Customer Content. Where Webanywhere receives such a request, Webanywhere shall use reasonable commercial endeavours to deliver to the Customer a copy of any Customer Content contained in the Software’s Customer file manager, to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all Fees and any other charges and expenses outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Webanywhere in providing a copy of the Customer Content (if requested by the Customer).
- On termination (or expiry) of this Agreement for any reason, The Customer will be entitled to request that any domain(s) which Webanywhere has purchased on behalf of The Customer can be transferred to The Customer. The Customer will need to pay for any charges incurred relating to the domain transfer(s). Where domain transfer(s) are not requested by The Customer, Webanywhere will not be responsible for any subsequent loss of domain registration.
- Webanywhere 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 Webanywhere 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 Order Form and in these Terms and Conditions, the provisions in the Order Form shall prevail.
- 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.
- If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
- 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. Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
- Webanywhere may at any time assign, transfer, charge, sub-contract or deal in any other manner with this Agreement and/ or all or any of its rights or obligations under this Agreement, without having to obtain the consent of the Customer. The Customer shall not, without the prior written consent of Webanywhere, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement without first obtaining the prior written consent of Webanywhere.
- 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).
- This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Transmission of an executed counterpart of this Agreement by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this Agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
- Any notice required to be given under this Agreement 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 this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email as set out in this Agreement. 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 email shall be deemed to have been received at the time of transmission.
- 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. 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).
- Webanywhere may update these Terms and Conditions from time to time and updated copies of these Terms and Conditions shall be published at https://www.schooljotter.com/terms-and-conditions. Unless expressly agreed otherwise in writing, the Agreement shall be governed by the version of these Terms and Conditions in force as at the Start Date for the duration of the Initial Term and shall be governed by the version of these Terms and Conditions in force on the first day of any Renewal Term for the duration of that Renewal Term. This is Version 1.0 of these Terms and Conditions issued on 22 November 2022.
DATA PROCESSING ADDENDUM
This Data Processing Addendum shall apply to the extent that Webanywhere processes any Personal Data on behalf of the Customer in providing the Software and/ or Services.
- In this Data Processing Addendum, terms defined in the Agreement to which it is appended shall have the meaning given there and the following terms shall have the following meanings:
“, “Data Subject“, “Personal
Data“, “Personal Data Breach“, “processing” and “appropriate
technical and organisational” measures shall have the meaning given in the Data Protection Legislation.
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (“
UK GDPR“); the Data Protection Act 2018 (“DPA 2018“) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“Domestic Law” means the law of the United Kingdom or a part of the United Kingdom.
- Data Protection Obligations
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This Data Protection Addendum is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Webanywhere is the Processor. Section 3 of this Data Protection Addendum below sets out the scope, nature and purpose of processing by Webanywhere, the duration of the processing and the types of Personal Data and categories of Data Subject.
- Without prejudice to the generality of paragraph 2.1 of this Data Protection Addendum, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Webanywhere for the duration and purposes of this Agreement.
- Without prejudice to the generality of paragraph 2.1 of this Data Protection Addendum, Webanywhere shall, in relation to any Personal Data processed in connection with the performance by Webanywhere of its obligations under this Agreement:
- process that Personal Data only on the documented written instructions of the Customer unless Webanywhere is required by Domestic Law to otherwise process that Personal Data. Where Webanywhere is relying on Domestic Law as the basis for processing Personal Data, Webanywhere shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Webanywhere from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
- not transfer any Personal Data outside of the UK or EEA unless the following conditions are fulfilled: (a) the Customer or Webanywhere has provided appropriate safeguards in relation to the transfer; (b) the Data Subject has enforceable rights and effective legal remedies; (c) Webanywhere 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) Webanywhere complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
- assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a Personal Data Breach;
- at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by Domestic Law to store the Personal Data; and
- maintain complete and accurate records and information to demonstrate its compliance with this Data Protection Addendum and allow for audits by the Customer or the Customer’s designated auditor and promptly inform the Customer if, in the opinion of Webanywhere, an instruction infringes the Data Protection Legislation.
- The Customer consents to Webanywhere appointing third-party processors of Personal Data under this Agreement. Webanywhere confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Data Protection Addendum and in either case which Webanywhere confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Webanywhere, Webanywhere shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
- Particulars of Processing, Personal Data and Data Subjects
- Scope: Webanywhere is providing Software and Services to the Customer which enables the Customer to create and manage Customer Website(s).
- Nature: In the course of providing the Software and/ or Services, Webanywhere may process Personal Data on behalf of the Customer.
- Purpose of Processing: Webanywhere shall process Personal Data on behalf of the Customer, solely for the purposes of providing the Software and/ or Services.
- Duration of the Processing: The processing shall continue for so long as is necessary for Webanywhere to provide the Software and/ or Services.
- Types of Personal Data: Names, contact details, log-in credentials of Data Subjects and information concerning living individuals contained in Customer Content.
Categories of Data Subject: Personnel of the Customer and persons identified in Customer Content (which may include students of the Customer as well as their parents or guardians).