Terms and Conditions

THIS AGREEMENT is made by and between:

Pupil Progress Ltd, a limited liability company registered in England, No. 08986421, (“Pupil Progress”) and [Insert name of customer] the Educational Establishment as stated on the authorised Customer Order Form (“Customer”)

In consideration for the Charges and subject to the Customer’s execution of the Customer obligations detailed in the Agreement, Pupil Progress shall provide the services detailed in this Agreement for the Subscription Period on the Terms and Conditions as herein defined.

1 Definitions

Agreement - the Pupil Progress Terms and conditions accepted upon the activation of a subscription, including any referenced documents within it

Annual  a period of 12 calendar months commencing on the date of execution

APIs - Application Programming Interfaces Pupil Progress may provide which provide programming code to interface with and utilise the Services.

Business Hours – 09:00 to 17:00 UK time Monday to Friday inclusive, excluding public holidays in the UK.

Charges – Annual fees for the provision of the Services and Content under the terms of this Agreement.

Confidential Information - this Agreement, all Content, data, drawings, benchmark tests, specifications, trade secrets, object code and source code of any software, and any other proprietary information made available to the Customer by Pupil Progress, including all items marked as "Confidential” or “Proprietary”.

Content – any audio and visual information, documents, software, products, and services made available by Pupil Progress as part of the Services.

Customer Data - all data, graphics, and information, including, without limitation, any hypertext links, scripts, recordings, sound, music, graphics or images that are created, installed, uploaded, or transferred by the Customer in connection with the Services. Customer Data includes personal information, including Sensitive Personal Data and information provided by the Customer for account management purposes.

Data Protection Laws - means (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of Personal Data to which a Party is subject, including the Data Protection Act 1998 ("DPA") and EC Directive 95/46/EC (the "DP Directive") (up to and including 24 May 2018) and the GDPR (on and from 25 May 2018) or, in the event that the UK leaves the European Union, all legislation enacted in the UK in respect of the protection of Personal Data; and (b) any code of practice or guidance published by a Regulatory Body or the European Data Protection Board from time to time;

Educational Establishment – the separate identifiable entity identified in the customers registered details. In a hard or soft federation, each individual Educational Establishment must be licensed separately.

Feedback - any and all suggestions, comments, improvements, or other feedback about the Services that the Customer provides to Pupil Progress either directly or indirectly in any format or media.

Free Trial – a subscription that can be registered for and activated free of any monetary cost for a fixed period of time quoted on the free trial. On activating a Free Trial the Customer will be asked to confirm agreement to abide to the Terms and Conditions as herein defined. The Free Trial period is independent of, and is over written by, any Subscription Period subsequently activated.

"GDPR" - means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016;

Subscription Charge – the charge for the provision of the services for the Subscription Period , payable 12 months in advance upon execution of this Agreement

Subscription Period – 1 calendar year from the Start Date

Operational Services – services provided by Pupil Progress in setting up the Services for the use of the Customer, and/or recurrent services during the Term.

Optional Services - other services, including without limitation enhanced support & maintenance, enhanced operational services, consultancy, implementation, training, data migration, advice or assistance which Pupil Progress may provide either for additional charge or without charge. Optional Services may be associated with additional terms and conditions.

Personal Data – means the definition given in the GDPR

Services - the provision of access via the Internet to the Content, as detailed in the Terms and Conditions, together with services provided by Pupil Progress including Operational Services and Support & Maintenance Services.

Support & Maintenance Services – Pupil Progress services provided in accordance with clause 3 of this Agreement.

Student Data – any information relating to a student uploaded to the site by the Customer or at the Customers request, including background information and any values entered on the trackers values and figures calculated by Pupil Progress

Term – the period from the start of the Subscription Period until the date of termination of the Agreement in accordance with clause 9.

Trial Period – A subscription to a free trial

User – Individual that have been registered on Pupil Progress by the Customer and assigned a login to access and use the Services.

2 Access and Use of Services

2.1     Access. The Customer’s use of and access to Services and any Content provided as part of the Services is governed exclusively by this Agreement.

2.2     License Grant. Pupil Progress grants to the Customer a temporary, non-transferable, limited, revocable and non-exclusive right to access and use the Content during the Term solely for the purpose of the administration of the Educational Establishment.

2.3     Limitations. The license granted herein is granted solely to the Customer for use with the Educational Establishment, and not, by implication or otherwise, to any federated or affiliated Educational Establishment whether or not controlled by the Customer. The Customer may not provide access to the Services to any third party. Pupil Progress reserves all rights not expressly granted to the Customer. The Customer shall not copy, distribute, reproduce, use or allow access to the Services and/or Content, except as explicitly permitted under this Agreement. The Customer shall not modify, adapt, translate, or prepare derivative works from the Services and/or Content and, to the extent permitted by applicable law, shall not, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services. The Customer shall not remove, obscure, or alter Pupil Progress’ copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Services. Pupil Progress’ provision of Services hereunder does not constitute a distribution by Pupil Progress of any Content including any Pupil Progress proprietary or third party software.

2.4     Trademarks. Neither party grants the other the right to use its trademarks, trade names, or other designations in any promotion, publication, or website without prior written consent or except as otherwise expressly provided for in this Agreement.

2.5     Priority. In the event of a conflict, the terms of these Terms and Conditions shall prevail, the latest dated Attachment will prevail over an earlier version of an Attachment, and the applicable Terms and Conditions shall prevail over other parts of this Agreement all except as may be expressly specified otherwise. Throughout this Agreement, the term "Agreement" includes applicable Attachments and referenced policies. Attachments are part of this Agreement only for those Services to which they apply.

2.7     Variation of Content. Pupil Progress reserves the right to update the Services and/or Content in order to enhance functionality, improve documentation, and implement corrective, preventive or perfective maintenance on the applications. The Customer will be provided with appropriate notice of such changes.

2.8     The Customer can register Users to use the subscription. This provides the User access to all Customer Data and Student Data It is the Customer’s responsibility to ensure that the Users abide by these Terms and Conditions. The Customer is responsible for ensuring the User observes all their obligations under the Data Protection Act 1998.

3 Operational, Support & Optional Services

3.1     Acceptable Use.  Pupil Progress can be used by a single school, institution or other Education Establishment by all employees of the Institution registered as an Authorised User. It is forbidden for the Services provided by a Subscription for the use of one Institution to be used in another Institution. It is not permitted to pass on access to Pupil Progress to other institutions or individual or who are not acting on their behalf. Student Data obtained from Pupil Progress should be used within Data Protection Laws and the Terms and Conditions set out in this document.

3.2     Operational Services. Certain Services are provided by Pupil Progress as standard as part of the set-up process and/ or on a recurrent basis. Variations to or additions to these Services are accommodated as Optional Services.

3.3     Support & Maintenance. Pupil Progress will provide the Customer with assistance with the resolution/correction of errors in the Services or the Content. The Customer may contact Pupil Progress for support. Where problems require software updates, these will normally be issued as part of the regular software update release cycle.

3.4     At the beginning of the Subscription Period, Pupil Progress will assist the Customer with problems encountered where Users attempt to configure the Services or the Content. This service is made available within Business Hours, and is limited to a maximum of 1 hour support in the first calendar month of the Subscription Period. The amount of support can be extended at the discretion of Pupil Progress. This service is not a substitute for Users being familiar with the available documentation, or undergoing appropriate training. Additional support and/or training is available as an Optional Service.

3.5     Optional Services. Optional Services may be made available to the Customer by Pupil Progress, on request, either as part of the original Agreement, or as a variation to the Agreement during the Subscription Period (in which case the Charges will also vary). Such Optional Services may consist of one or more of: (i) making available additional or enhanced functionality of the Services and/or Content in certain areas; (ii) assistance by Pupil Progress preparing the Services and/or Content for the Customer’s use; (iii) Training Services; (iv) additional recurrent Services relating to the operation of the service; and/or (v) enhanced support Services. In the event that Pupil Progress agrees to provide Optional Services, such Services will be defined and be governed by additional terms and conditions which will be incorporated into these Agreement by way of Variation Agreement.

4 Customer Obligations, Representations And Warranties

4.1     The Customer agrees to comply with all declaration, decree, directive, order, ordinance, or other binding restriction applicable laws, rules and regulations (as amended, consolidated or re-enacted from time to time), including those regarding data privacy, copyright, and export control, and the terms of this Agreement;

4.2     The Customer is responsible for the selection of the Products it purchases and whether such Products meet its and its Authorised Users requirements.

4.3     The Customer must use reasonable security precautions for providing access to the Services by its employees or other individuals to whom the Customer provides access or registers as an Authorised User

4.4     cooperate with Pupil Progress’ reasonable investigation of outages, security problems, and any suspected breach of this Agreement;

4.5     comply with all license terms or terms of use for any software, Content, service or website (including Content) (whether made available to the Customer through the Services by Pupil Progress or a third party) the Customer uses or accesses when using the Services;

4.6    The Customer and Authorised Users agree not to make available any usernames and/or passwords to anyone. The Customer and Authorised Users agree to prevent unauthorised access to or use of the Services and immediately notify Pupil Progress of any known or suspected unauthorised use of the Customer’s or Authorised Users account, the Services, or any other breach of security. If there has been a disclosure of a username and/or password, the Customer and Authorised Users agree to promptly reset the password and notify us promptly of such disclosure, so that we can take appropriate security measures.

4.7    The Customer and Authorised Users undertake not to upload any User Materials onto Pupil Progress or send and/or transmit to other Authorised Users, any Content which is illegal, obscene, threatening, defamatory, discriminatory, promote illegal or unlawful activity, or be otherwise actionable or in violation of any rules, Intellectual Property Rights, regulations or laws to which such Content is subject.

4.8    The Customer is solely responsible for the accuracy, legality, and compliance with the relevant laws and regulations in respect of the Content which You send to other Authorised Users and/or the User Materials that You upload onto Pupil Progress. The Customer acknowledges that we do not operate or exercise control over, and accepts no responsibility for the Customer Data which the Customer or Authorised Users upload onto Pupil Progress or transfer through Pupil Progress.

4.9    If we suspect that a breach of Clauses 4.3, 4.4, 4.5, 4.7, or 4.8 have occurred or is likely to occur, we may, without giving notice and liability to the Customer, remove uploaded materials and/or suspend the Authorised Users access to Pupil Progress and/or Your Products.

4.10    The Customer agrees to promptly notify us of any errors or inaccuracies which relate to the Products. In this regard, please contact us using the "Contact us" page.

4.11    You must not spam, download or upload excessive volume of Content onto Pupil Progress such that it may impair the performance of Pupil Progress. You must not introduce any malicious codes or harmful element e.g. virus and Trojans onto Pupil Progress.

4.12    The Customer warrants that any Personal Data which is provided to Pupil Progress complies fully with all relevant Data Protection Laws including the Data Protection Act 1998 and the Customer agrees to indemnify and keep Pupil Progress indemnified against breach by the Customer or Authorised Users of such Data Protection Laws.

4.10   The Customer agrees to indemnify and keep us indemnified for any losses, damages, fines arising from or which are connected to any breach by it and/or its Authorised Users of Clauses 4.3, 4.4, 4.5, 4.7 or 4.8.

4.11   Representations and Warranties. The Customer represents and warrants that (i) it has the full power and authority to enter into this Agreement and to grant Pupil Progress the rights granted herein; (ii) the Customer Data does not and shall not violate or infringe any intellectual property right of any third party; and (iii) the Customer is acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services or this Agreement.

4.12   Confidentiality. The Customer agrees not to use Pupil Progress’ Confidential Information except in connection with the Customer’s authorised use of the Services as described in 3.1 Acceptable Use. The Customer agrees not to disclose Pupil Progress’ Confidential Information to any third person or party for a period of five (5) years following the termination or expiration of this Agreement except where the Confidential Information: (i) was in the Customer's possession prior to receipt from Pupil Progress; (ii) is publicly known or readily ascertainable by proper means; (iii) is rightfully received by the Customer from a third party without a duty of confidentiality; (iv) is disclosed by Pupil Progress to a third party without a duty of confidentiality on the third party; (v) is independently developed or learned by the Customer; or (vi) is disclosed by the Customer with Pupil Progress’ prior written approval. The Customer will provide reasonable prior notice to Pupil Progress and will request a protective order if the Customer is required to reveal the Confidential Information under operation of law.

5 Price and Payment

5.1     Charges. The Customer agrees to pay to Pupil Progress the Charges as specified or as revised in accordance with the terms of this Agreement. Pupil Progress shall invoice the Subscription Charge upon execution of the Agreement, and the Extension of the Subscription Period on the start date of the extension as detailed in clause 9.2

5.2     Exclusion of VAT. The prices detailed in this Agreement exclude Value Added Tax. Value Added Tax will be added to invoices at the rate then in force and shall be paid by the Customer in addition to the agreed Charges.

5.3     Price Revisions. Pupil Progress reserves the right to increase Charges, such increases to be effective on any anniversary of the Agreement.

5.4     Payment Terms. All payments due under this Agreement shall be payable in pounds sterling in cleared funds into the bank account nominated by Pupil Progress within fourteen days from the date of Pupil Progress’ relevant invoice. No counterclaim or set-off by the Customer may be deducted from any payment due to Pupil Progress on any account whatsoever without the express prior written consent of Pupil Progress.

          Bank: Santander                                                Sort Code: 09-01-28

          Name: Pupil Progress Limited                 Account: 63924586

5.5     Payment is of the Essence. For the avoidance of doubt, failure to pay any sum due in accordance with this Agreement shall be deemed a material violation and the provisions of clause 9.3 (Termination of Service by Pupil Progress) may be invoked.

5.6     Further Recourse on Late Payment. Without prejudice to any other right or remedy available to Pupil Progress, if the Customer fails to pay any sum due under this Agreement within the agreed period, Pupil Progress shall be entitled at its sole discretion to: (i) charge the Customer interest (both before and after any judgement) and compensation on any overdue amounts on at the rate laid down under the Late Payment of Commercial Debts Act 1998, as amended. The Customer shall be responsible for all costs incurred by Pupil Progress in order to recover due payments, including without limitation all professional fees and legal costs; (ii) suspend all access to the Services by the Customer until the payment is made. The Customer’s Obligations, including without limitation payment obligations, are not affected by such a suspension. Following such a suspension, Pupil Progress may at its sole discretion require that the Customer agrees to revised payment terms for the Charges prior to any resumption of access to the Services.

5.7     Disputed Invoices. In the event that the Customer disputes an invoice it shall do so in writing providing proper details to Pupil Progress of the nature of and reason for the dispute within fourteen (14) days of receipt of the invoice. The Customer shall not unreasonably dispute any invoice. Full details of the basis of the dispute shall be provided prior to payment of the invoice which must be made within the payment period provided for in this Agreement. Within fourteen days of such notification, the parties will meet to resolve the matter. If the matter is not resolved at that meeting, the matter will be referred to the parties’ Managing Directors/CEOs. If notification of a dispute is not made in accordance with this clause 5.6, payment by the Customer shall be deemed final.

5.8     Cancellations. The Customer is offered a Free Trial for 6 weeks and is advised to use this to see if the product meets expectation. At any point during the Free Trial or at the end of the Free Trial the Customer may subscribe for a fixed Term Subscription Period. If the Customer wishes to cancel the subscription they must contact info@pupil-progress.co.uk with a request to cancel and a reason for the cancellation. If the cancellation is requested:

5.8.1 within the first 14 days of the Subscription Period, the Customer’s account will be terminated and any payments made for that period will be fully refunded.

5.8.2 after the first 14 days of the Subscription Period, then the Customer is required to pay the full subscription fee invoiced.

          Pupil Progress may ask for Feedback and a reason for the cancellation to resolve the issue and to help support future Customers; the Customer does not have to give Feedback unless they wish to and this does not affect their rights. In some circumstances, Pupil Progress may at its sole discretion decide to offer a goodwill reduction of the cost invoiced, commensurate with the period the subscription has been active for.

6 Content, Feedback and Customer Data

6.1     Content. Pupil Progress and its licensors retain all right, title, and interest in the Services and/or the Content. In the event that Pupil Progress agrees to provide customisations to the Services and/or Content, whether or not specifically commissioned by the Customer, Pupil Progress and its licensors retain all right, title, and interest in such customisations.

6.2     Feedback. Pupil Progress shall own all right, title and interest in and to the Feedback. The Customer hereby irrevocably assigns to Pupil Progress all right, title, and interest in and to the Feedback and agrees to provide Pupil Progress with any assistance Pupil Progress may request to document, perfect, and maintain Pupil Progress’ rights in the Feedback.

6.3     Customer Data. The Customer retains all right, title, and interest in Customer Data. By any party using the Customer's account and adding, creating, installing, uploading, or transferring Customer Data for use in conjunction with the Services, the Customer grants Pupil Progress and its hosting platform (Watman Worth Web Ltd) a non-exclusive, royalty-free, paid-up, transferable license and approval to host, cache, copy, and display Customer Data, for the purpose of and in conjunction with providing the Services for the terms of this Agreement. The Customer represents that the Customer has and will keep in effect during the Customer's use of the Services, all licenses and approvals necessary to grant Pupil Progress and its hosting platform (Watman Worth Web Ltd) these rights and that they will be provided at no charge to Pupil Progress. The Customer is responsible for complying with the terms of any such license Agreements including entitlements and permitted uses. The Customer represents that by adding, creating, installing, uploading, or transferring Customer Data, or using APIs to do any of the foregoing, for use in conjunction with the Services, the Customer is not exceeding any specified entitlement or permitted use or violating applicable license Agreements or applicable laws. The Customer agrees to reimburse Pupil Progress for any reasonable costs and other amounts that Pupil Progress may incur from the Customer's failure to obtain these licenses or approvals.

6.4     Customer Data Responsibilities. The Customer is responsible for all Customer Data, including selection, creation, design, usage, licensing, maintenance, testing, backup, and support. The Customer is also responsible for any Personal Data or any information the Customer considers confidential that is included in the Customer Data. The Customer acknowledges that Pupil Progress does not control the transfer of data over telecommunications facilities, including the Internet.

6.5     Customer Data Confidentiality. Where Customer Data is clearly identified as Customer Confidential Information, Pupil Progress will:

6.5.a. use the same care and discretion to avoid disclosure of such Customer Confidential Information as it uses to avoid disclosure of its own similar information;

6.5.b. disclose Customer Confidential Information only to its employees or employees who have a need to know to provide the Services; and

6.5.c. disclose Customer Confidential Information to subcontractors who have a need to know to provide the Services and Pupil Progress will have appropriate agreements in place with its subcontractors to meet the confidentiality obligations as set forth in this section. Pupil Progress may disclose Customer Confidential Information to the extent required by law. However, Pupil Progress will, to the extent possible, give the Customer prompt notice to allow the Customer a reasonable opportunity to obtain a protective order.

6.6     Pupil Progress is under no obligation for any information the Customer identifies as Customer Confidential Information that is:

6.6.a. already in Pupil Progress’ possession without obligation of confidentiality;

6.6.b. developed independently;

6.6.c. obtained from a source other than the exposure during the provision of the Services without obligation of confidentiality;

6.6.d. publicly available through no fault of Pupil Progress; or

6.6.e. disclosed by the Customer to another without obligation of confidentiality.

6.7     Pupil Progress is free to use in its business activities the ideas, concepts and know-how contained in any Customer Data which are retained in the memories of Pupil Progress employees who have had access to the Customer Confidential Information during the performance of the Services.

7 Privacy

7.1     Compliance with Law. Both parties warrant that they will duly observe all their obligations under the Data Protection Act 1998. In this Clause 7, the terms “Process”, “Processing” and “Personal Data” shall be understood in their meanings as assigned by the Data Protection Act 1998 as amended. Pupil Progress Ltd is registered with the Information Commissioner’s Office (ICO) under the registration reference ZA226391 and organisation name www.pupil-progress.co.uk.

7.2     Data Controller. The Customer is and shall remain the data controller of the Customer Data it uploads or provides as part of the Services. Pupil Progress is a service provider to the Customer and has the role of data processor. Pupil Progress does not own or otherwise act as data controller of the Customer Data. It is the Customer’s responsibility to verify that the security and privacy protections offered by the Services are adequate and in compliance with all applicable laws governing the type of data included in the Customer Data which is uploaded in or provided to the Services.

7.3     Data Processing. Without limiting Clause 7.1, if the Customer passes to Pupil Progress, or otherwise gives Pupil Progress access to, Personal Data under this Agreement:

7.3.a Pupil Progress will not Process Personal Data held by it under this Agreement except in accordance with this Agreement or otherwise on the instructions of the Customer.

7.3.b  Pupil Progress will acquire no rights or interest in the Personal Data and will return such Personal Data to the Customer on demand.

7.3.c  Pupil Progress will implement appropriate technical and organisational measures against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of or damage to Personal Data.

7.3.d  Pupil Progress will ensure that its employees will maintain proper records of the Processing of any Personal Data received from the Customer or from a third party on behalf of the Customer.

7.3.e  Pupil Progress will not transfer Customer Data or Student Data, including the Customer's Personal Data, outside of the United Kingdom without the written approval of the Customer. If the Customer is based outside the UK and agrees to these Terms and Conditions, this will be taken as written consent to transfer the Customer Data and Student Data outside the UK in order to provide access for the Customer to the Services provided by Pupil Progress Ltd.

7.4     Collection of Personal Data. The Customer’s access to the Services is via a Pupil Progress-controlled website. As such, the Customer’s registration and interaction with the website, and any Personal Data that may be collected by the website, is governed by the Pupil Progress privacy policy https://www.pupil-progress.co.uk/privacy

7.5     Upon Cancellation of the termination of the subscription Period, the Customer and Authorised Users will not be able to access any Student Data uploaded to or processed by  Pupil Progress. Pupil Progress will retain any Student Data for 12 months from the end of the Subscription period, in case the Customer re-subscribes, in which instance Pupil Progress will restore access. After the 12 month period, the Customer’s account will be securely deleted from our systems, which includes all Student data linked to that account.

 8 Warranties & Disclaimers

8.1     Pupil Progress does not warrant that the Service will be uninterrupted, error-free, or completely secure. The Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of the Customer’s privacy, Confidential Information, Customer Data, and/or property. Pupil Progress has no obligation to provide security other than as stated in this Agreement. To the extent permitted by law, Pupil Progress disclaims any and all warranties, statutory or otherwise, not expressly stated in this Agreement, including the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.

8.2     The disclaimers of this clause 8 apply also to any suppliers and subcontractors of Pupil Progress.

9 Term, Termination & Suspension

9.1     Term. This Agreement comes into force and effect upon the activation of a subscription. Pupil Progress will make available the Services for use for the period Subscription Period in accordance with the terms and conditions of the Agreement, unless extended in accordance with clause 9.2 or terminated earlier in accordance with the provisions of this clause 9.

9.2     Extension of Subscription Period. The Agreement will be extended automatically at the end of the Subscription Period for an additional 12 month period unless either party provides two months written notice to the other that that party does not wish the Agreement to so extend. In the event that the Agreement is extended beyond the Subscription Period, the Agreement will be automatically extended at the end of the extended Term for a further 12 month period unless either party provides two months written notice to the other that that party does not wish the Agreement to so extend.

9.3     any Customer Data entered into the Services by the Customer, and any customisations made to the Services by or for the Customer, during the period of the agreement will be permanently lost on termination, howsoever terminated. The Customer must export its content before termination or the entered data will be permanently lost.

9.4     Termination of the Services by Pupil Progress. Pupil Progress may terminate the Customer's access to Services, in whole or in part, or prevent access to any new Services if; (i) in Pupil Progress’ sole discretion there is an emergency situation, including but not limited to breach of security; (ii) continued provision of Services, in whole or in part or the Customer's use of Services in whole or in part may cause Pupil Progress to violate any law, rule, regulation, governmental policy, or court order; (iii) use of Services in whole or in part, is inconsistent with a contractual commitment or intellectual property right of a third party; (iv) the Customer materially violates the terms of this Agreement,; or (v) there is a material violation of Acceptable Use. For the purposes of this Agreement, a “material violation” may consist of a single event, or of a pattern of violations over a period which together constitute a material violation.

9.5     Suspected Violations. Pupil Progress reserves the right to investigate complaints relating to use of the Services by the Customer, Users, or someone using Services associated with the Customer's Account, or any potential violation of the terms of this Agreement (including but not limited to Acceptable Use). Notwithstanding any other terms, policies, or other rights available, Pupil Progress may take any action it deems appropriate, including without limitation, disclosing information to enforcement agencies. In addition to any other remedies available to it, Pupil Progress reserves the right to:

          9.5.a. restrict the Customer's access to or terminate any of the Services, as described above;

          9.5.b. require the removal of offending Customer Data; or

          9.5.c. exercise other rights and remedies available at law or in equity.

9.6     Except for an emergency as determined by Pupil Progress or as may otherwise be required by law, before undertaking the remedies described in clauses 9.4 (Termination of Services by Pupil Progress) and 9.5 (Suspected Violations), Pupil Progress will attempt to notify the Customer by any reasonable practical means under the circumstances. The Customer is required to immediately backup Customer Data or, where possible, demonstrate to Pupil Progress that the violation has been remedied. The Customer must take such action at most within three business days.

9.7     Termination by Customer. The Customer may terminate this Agreement by serving 30 days written notice of termination in advance if Pupil Progress repeatedly fails to observe or perform any serious material term or condition of this Agreement, including any Attachment, and such breach (if capable of remedy) continues for thirty (30) days after receipt of a written notice from the Customer specifying the breach and requiring the same to be remedied.

9.8     Survival. Any terms of this Agreement that by their nature extend beyond the termination of Services remain in effect until fulfilled, and apply to both parties' respective successors and assignees.

10 Indemnity

10.1   The Customer agrees to defend Pupil Progress and its subcontractors at the Customer's expense, and pay all costs, damages, and reasonable attorneys' fees that a court finally awards (or which the Customer agrees to in any final settlement) for any third party claim arising out of or related to (i) Customer Data (ii) use of the Services or Content in combination with other facilities or Services or (iii) any violation of this Agreement, including but not limited to the Acceptable Use by the Customer or any entity using the Customer's Account.

10.2   For indemnification under this clause 10, Pupil Progress must: 2.a. promptly notify the Customer in writing of the claim; and 2.b. allow the Customer to control, and reasonably cooperate with the Customer in, the defence and any related settlement negotiations.

10.3   The Customer agrees to promptly notify Pupil Progress of any event or circumstance related to Services, Customer Data or the Customer's use of Services, that the Customer becomes aware of which could lead to a claim or demand against Pupil Progress. The Customer agrees to provide all relevant information relating to such event or circumstance to Pupil Progress at Pupil Progress’ request.

11 Limitation of Liability

11.1   Save as expressly provided in this Agreement there are no other conditions, non-fraudulent warranties or representations (express or implied) with respect to the Services and/or Content and any warranty or representation implied by law are expressly excluded to the maximum extent permitted by law. The Customer expressly affirms that it is not relying on any non-fraudulent warranty, condition or representation not contained or referenced in the Agreement.

11.2   Except as expressly set forth in this Agreement, Pupil Progress Ltd makes no warranties or representations, express or implied, in fact or in law, with reference to the Pupil Progress Ltd Deliverables and it is expressly agreed that there is no warranty of satisfactory quality, merchantability or non- infringement or fitness for a particular purpose, express or implied, given by Pupil Progress Ltd with reference to the Services and/or Content.

11.3   Under no circumstances is Pupil Progress, its suppliers or subcontractors liable for any of the following even if informed of their possibility:

11.3.a loss of, or damage to, Customer Data;

11.3.b special, incidental, exemplary, or indirect damages or consequential damages; or

11.3.c wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.

11.4   In no event will Pupil Progress’ liability for actual direct damages arising out of this Agreement or the use or performance of the Services exceed the Subscription Charges related to the event giving rise to the claim. The Customer acknowledges and agrees that any action for recovery of costs and damages is to be made against Pupil Progress, and not its suppliers and subcontractors, but that the limitation detailed in this clause is the maximum for which Pupil Progress and its suppliers and subcontractors are collectively responsible.

11.5   Damages for bodily injury (including death), and damage to real property and tangible personal property for which Pupil Progress is legally liable are not subject to a cap on the amount of damages.

11.6   Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: (i) neither party will bring a legal action, regardless of form, arising out of or related to this Agreement or the Services more than two years after the cause of action arose; and (ii) after such time limit, any legal action arising out of this Agreement or the Services and all respective rights related to any such action lapse.

12 Dispute Resolution

12.1   The parties will use all reasonable endeavours to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement, or any breach of it.

12.2   If any such dispute cannot be settled amicably within ten working days through negotiations at the level at which meetings are usually held, then the dispute shall be referred to the senior representatives nominated by the Managing Director or Chief Executive Officer of each party who will meet in good faith within ten working days in order to try and resolve the dispute.

12.3   If the dispute or difference is not resolved as a result of the meeting of the senior representatives, either party may (at such meeting or within ten working days of its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor or mediator before resorting to litigation.

12.4   Nothing contained herein shall restrict either party’s freedom to commence legal proceedings before any competent court to preserve any legal right or remedy or protect any proprietary right or trade secret.

13 General

13.1   Assignment. The Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Pupil Progress. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.2   Notices. All notices required to be sent hereunder to Pupil Progress shall be in writing and shall be deemed to have been given three business days after being mailed by first class mail to the address listed above. Pupil Progress will send notices to the Customer to the Users registered email. Subject to the foregoing, the Customer and Pupil Progress consent to the use of electronic means, email, and facsimile transmissions to send and receive communications in connection with our business relationship arising out of this Agreement, and such communications are acceptable as a signed writing.

13.3   Severability. If any provision of this Agreement is held to be invalid or unenforceable, but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable consistent with its objective. In any case, the remaining provisions of this Agreement remain in full force and effect.

13.4   Purchase Orders. In the event that the Customer issues purchase orders which refer to the Services, or Content or any part thereof, such purchase orders shall be regarded as for the administrative convenience of the Customer only, and any terms and conditions attached to such purchase orders shall not form part of this Agreement nor be regarded as superseding this Agreement.

13.5   Force Majeure. Neither Pupil Progress nor the Customer shall be held liable to the other or be held in breach of this Agreement if prevented hindered or delayed in the performance or observance of its obligations hereunder resulting from acts beyond the reasonable control of the party concerned.

13.6   Waiver. The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.

13.7   Rights of Third Parties. Unless expressly provided in this Agreement, no express term of this Agreement or any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

13.8   Publicity. Pupil Progress may cite the Customer publicly as one of its customers (along with a brief description of the Services provided) in its sales and marketing material without further reference to the Customer. With the prior consent of the Customer, Pupil Progress may also issue press releases concerning the Services, hyperlink to the Customer website, use materials produced under this Agreement in case studies or award competitions and/or use such materials in its investor relations material.

13.9   Non-solicitation. Each Party agrees it shall not employ or solicit the employment, directly, or indirectly, of any of the other Party's employees or contractors during the period of this Agreement and for a period of six months thereafter, without the express written approval of the other.

13.10 No Agency. This Agreement and Services provided under it do not create an agency, joint venture, or partnership between the Customer and Pupil Progress. Each party is free to enter into similar agreements with others to develop, acquire or provide competitive Services.

13.11 Compliance with Laws. Pupil Progress will comply with laws applicable to Pupil Progress generally as a provider of information technology Services. Pupil Progress is not performing the Customer's regulatory or management obligations and is not responsible for determining the requirements of laws applicable to the Customer's business, including those relating to Services hereunder. The Services are not designed to comply with any particular law or regulations. The Customer is responsible for complying with laws, rules, and regulations that may be applicable to Customer Data and the Customer's use of the Services. The Customer agrees not to place or allow any Customer Data within the Services that require any specific legal or regulatory compliance by Pupil Progress except as expressly stated in the Agreement.

13.12 Entire Agreement. This Agreement shall constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Nothing in this item shall have the effect of excluding or limiting liability for fraud. This Agreement may not be modified or amended except in writing signed by a duly authorised representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. Notwithstanding anything in this Agreement to the contrary, neither party is obligated to take any action that would violate applicable law.

13.13 Governing Law and Jurisdiction. This Agreement shall be subject to, governed by, and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English Courts.