Terms and Conditions - Spongy Elephant

Welcome to our website. If you continue to browse and use this website, you are agreeing to comply with and be bound by the following terms and conditions of use, which, together with our privacy policy, govern Spongy Elephant’s relationship with you in relation to this website. If you disagree with any part of these terms and conditions, please do not use our website.

Spongy Elephant is an online market place where users can buy and sell short format streamed training videos and webinars. We aim to ensure all the videos are less than 3 minutes long. We call them learning bursts as they are designed to help people learn as quickly and efficiently as possible, and also minimise forgetting.

These learning bursts are grouped in to sets of roughly 10. These groups are called “learning trunks”. The learning trunks contain 1 or 2 initial videos or learning bursts that are in a Get Going section. These give an introduction to the topic being covered. There are then a number of learning bursts that are in a section called Get Better, which incrementally offer the learner more information and guidance. Finally there is a Get Ahead section. This is not always a video but sometimes a list or collection of next steps for the learner who is now prepared to engage with the subject matter as an informed person and look for further more advanced training through the signposting offered in this final learning burst(s).

The learning trunks and learning bursts are designed so that activities can be tackled in short bursts, spaced over time. This helps learners remember over time and also reduces the need for large blocks of time away from school/the workplace to learn in the first place.

Spongy Elephant learning bursts and learning trunks have been designed to be particularly helpful for busy learners on the go (on the bus or train in to school), who can use mobile devices to access learning in short bursts of ‘found time’.

In terms of gamification, the learners progress and attainment on the Learning Trunks they undertake is represented by an elephant avatar. Currently there are three levels to both progress and attainment. No or weak progress is depicted by a grey elephant body; reasonable progress by a blue elephant body; and good progress by a green elephant body. Attainment uses the same colours and performance measures but as a circular ring around the elephant. So good progress is shown with a green ring.

This means that an administrator can monitor the progress and attainment of their “herd” using simple visual stimuli. If the “herd” is the teachers at the school using SE then good progress and attainment of staff undertaking continuous professional development or CPD, will be shown by a green herd.

INTERPRETATION

The definitions and rules of interpretation in this clause apply in this agreement.

“Applicable Law”	the laws of England and Wales and any other mandatory laws, regulations, regulatory policies, guidelines and industry codes which apply to the supply of the Services and/or the provision of access to the Platform.
“Account Manager”	Where designated, the Authorised User having control over the use of the Platform by an Educational Establishment.
“Authorised Users”	those employees, agents and independent contractors who are authorised by the Customer to use the Services and the Documentation within a particular Educational Establishment. For these purposes, the Account Manager shall be classified as an Authorised User.
“Business Day”	a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Charges”	the charges payable by the Customer to SE in accordance with clause 8.
“Confidential Information”	information of commercial value, in whatever form or medium, disclosed by one party to the other, including all material accessed through the Platform, details of the Services and the results of any performance tests relating to the same, commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information, information regarding personnel, employees, students or staff, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information or circumstances of its disclosure.
“Customer”	either a) the contracting entity specified on the Order Form where that entity is concluding a contract on behalf of at least one Educational Establishment; or b) Where no Educational Establishment is specified, the individual whose details are given on the Order Form; or c) The individual whose details are given on the Sign Up Form.
“Customer Data”	the data inputted into the information fields of the Platform by the Customer, by Authorised Users, or by SE on the Customer’s behalf.
“Customer Default”	any act or omission of the Customer or a failure by the Customer to perform a relevant obligation under this agreement.
“Data Protection Legislation”	the Data Protection Act 1998, the General Data Protection Regulation 2016/679/EU, and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.
“Data Protection Policy”	SE’s Data Protection Policy located at https://spongyelephstg.wpengine.com/data-protection-policy/ ^[a]as updated from time to time.
“Documentation”	the operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine-readable forms provided by SE.
“Educational Establishment”	an establishment which is either: A. listed on the Register of Educational Establishments for England and Wales, as maintained by the Department for Education; or B. listed on a register having equivalent status in any other jurisdiction; or C. would reasonably be considered to be an establishment of educational attainment e.g. a primary school, high school, college or further-education college.
“Force Majeure Event”	an event beyond the reasonable control of SE including strikes or other industrial disputes, failure of utility service/transport network, act of God, fire, flood, storm, war, riot, civil commotion, malicious damage, compliance with law, governmental rule, direction, accident, breakdown of machinery, or default of suppliers or subcontractors.
“Initial Subscription Term”	a period of 12 months from the Subscription Start Date.
“Learning Trunk”	A set of bite-size videos on a particular training topic.
“Licensed Materials”	Either: the Platform and Documentation; and/or any Trainer Purchases made by the customer or an Authorised User from time to time.
“Maintenance and Support Services”	the support services more particularly described in Schedule 1.
“Normal Business Hours”	9am to 5pm local UK time, on Business Days only.
“Order Confirmation”	Customer’s registration details.
“Order Form”	the form submitted by the Customer including details of their purchase and of the Educational Establishment they represent (if applicable), as located at https://spongyelephstg.wpengine.com/checkout^[b]/
“Platform”	the training platform provided by SE and accessed through www.spongyelephant.com
“Renewal Period”	the period described in clause 12.1.
“Services”	the provision of access to the Platform, together with the Maintenance and Support Services provided by SE to the Customer under this agreement, as applicable, given the context in which the term Services is used.
“Specification”	the description and specification for the Platform detailed at Clause 3.
“Sign Up Form”	the form submitted by the Customer including details of their personal attributes and where pertinent their Educational Establishment as located at https://spongyelephstg.wpengine.com/login/ or other registration or Sign Up Forms created by SE from time to time.
“Subscription Start Date”	the date upon which SE indicates to the Customer that payment for the Initial Term has been received, and SE agrees to supply the Services set out in this agreement.
“Subscription Term”	has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
“SE”	Spongy Elephant Limited, a company registered in England and Wales, with company number 9187394, whose registered office is at LCB Depot, 31 Rutland Street, Leicester, LE1 1RE.
“Sourcing Issue”	an inability of SE to source particular materials or resources (including personnel) on terms similar or identical to those available at the date of signature (including exchange rate fluctuations and increases in taxes and/or duties).
“Trainer Credit”	the purchase of credit by an Educational Establishment, which may be redeemed against future Trainer Purchases.
“Trainer Misconduct”	as defined in clause 11.6
“Trainer Purchase”	the purchase of either: A. a premium learning trunk; B. a Webinar; C. one-on-one units of time with a trainer; or D. a special arrangement, as agreed with Spongy Elephant by the Customer, an Authorised User or the Account Manager, as appropriate.
“Virus”	any thing or device (including any software, code, file or programme including worms, Trojan horses, viruses and other similar things or devices) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience.

A reference to a person includes a natural person/corporate/unincorporated body.
A reference to SE or the Customer includes its personal representatives, successors and permitted assigns.
A reference to a statute or statutory provision is a reference to such statute/statutory provision as amended or re-enacted and includes any subordinate legislation.
Any phrase introduced by the terms including/include shall be illustrative and shall not limit the sense of the preceding words.
A reference to writing/written includes emails but excludes faxes.
In the event of conflict or ambiguity, the following order of priority shall apply:

The Data Protection Policy;
The schedule of this agreement; and
The main body of this agreement.

BASIS OF CONTRACT

Submission of the Order Form by the Customer shall constitute an offer by the Customer to enter into a contract on the terms of this Agreement, which shall only be accepted when SE sends the Order Confirmation to the Customer.
In consideration for SE granting access to the Licensed Materials, the Customer shall comply with the terms of this Agreement.
The Customer accepts responsibility for the selection of the Services to achieve its intended results and acknowledges that the Services have not been developed to meet their individual requirements.

SERVICES

SE shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
Subject to the Customer paying any relevant Charges and complying with the terms and conditions of this agreement, SE hereby grants to the Customer a non-exclusive, non-transferable right to access the Licensed Materials during the Subscription Term, solely for the Customer’s private, domestic use (where the Customer is an individual), or the internal operations of the Educational Establishment(s) specified on the Order Form (where the Customer is contracting on behalf of one or more Educational Establishment(s)). For the avoidance of doubt, where the Customer acts as the governing body, trustee or in any other way controls, represents or contracts on behalf of more than one Educational Establishment, access to the Licensed Materials shall only extend to the Educational Establishment(s) which are named on the relevant Order Form and which have paid the Charges applicable thereto from time to time.
The Customer’s right to use the Licensed Materials shall be limited to either:

where the Customer is an individual, the Customer alone;
where the Customer contracts on behalf of one or more Educational Establishments, the Educational Establishments and the Authorised Users of each Educational Establishment.

The Customer shall:

keep a complete and accurate record of Authorised Users, and produce such record to SE on request from time to time;
notify SE as soon as it becomes aware of any unauthorised access to the Licensed Materials by any person; and
pay, for broadening the scope of the licenses granted under this Agreement to cover the unauthorised use, an amount equal to the fees which SE would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in this agreement, from such date to the date of payment.

The Customer acknowledges that SE may monitor the Customer’s use of the Platform and may query any usage patterns which reasonably appear to SE as unauthorised usage e.g. frequent connections to the Platform from unrecognised locations, or concurrent connections from a single Authorised User account. Where SE determines that unauthorised use has occurred, the provisions of clause 3.4.3 shall apply.
The Customer shall ensure that each Authorised User keeps a secure password for his use of the Platform, that such password is changed no less frequently than every four weeks and that each Authorised User keeps his password confidential.
The Customer (and any Authorised User) shall not store, distribute or transmit any Virus, or any material through the Platform that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
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: attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; access all or any part of the Platform, Services or Documentation in order to build a similar product or service; use the Platform, Services and/or Documentation to provide services to third parties; subject to the terms of this agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the Platform available to any third party except the Authorised Users; or attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause.

CUSTOMER DATA

In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for SE to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SE. SE shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties subcontracted by SE to perform services related to Customer Data maintenance and back-up).
SE may impose data storage limits on the Customer Data if, in its reasonable opinion and belief, the Customer Data exceeds the storage space requirements of the relevant Customer.

SE’s OBLIGATIONS

SE undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Platform and/or Services contrary to SE’s instructions, or modification or alteration of the Platform by any party other than SE or SE’s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, SE will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, SE does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, or that the Services, Documentation and/or the Information obtained by the Customer through the Services will meet the Customer’s requirements, and SE is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This agreement shall not prevent SE from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
SE warrants that:

it has and will maintain all licences, consents, and permissions necessary for the performance of its obligations under this agreement; and
the Platform shall substantially conform with the Specification.

CUSTOMER’S OBLIGATIONS

The Customer shall provide SE with all necessary co-operation in relation to this agreement, and all necessary access to such information as may be required by SE in order to provide the Services, including but not limited to Customer Data, security access information and configuration information.
The Customer shall comply with all Applicable Laws and regulations with respect to its activities under this agreement
The Customer shall carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner.
In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, SE may adjust any agreed timetable or delivery schedule as reasonably necessary.
The Customer shall ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement.
The Customer shall obtain and shall maintain all necessary licences, consents, and permissions necessary for SE, its contractors and agents to perform their obligations under this agreement, including without limitation the Services.
The Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to SE’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.
Where the Customer is entering into this agreement on behalf of one or more Educational Establishment(s), it warrants that:

it has the necessary level of authority to act in the name or on behalf of the relevant Educational Establishment(s); and
the individual named on the Order Form has a sufficient level of authority to contractually bind the Customer as set out in this agreement.

MAINTENANCE AND SUPPORT

SE shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week, except for:

planned maintenance undertaken outside of Normal Business Hours ;
unscheduled maintenance, provided that SE has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.

SE shall perform the Maintenance and Support Services during the term of this agreement materially in accordance with the description given at Schedule 1.
SE shall have the right to make any changes to the Maintenance and Support Services which:

are necessary to comply with any Applicable Law or safety requirement;
result from a Sourcing Issue; or
which do not materially affect the nature or quality of the Maintenance and Support Services, and SE shall notify the Customer in any such event.

Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Specification.

CHARGES AND PAYMENT

The Customer shall pay the Charges to SE in consideration for the provision of the Services in accordance with this clause 8, the Order Form, and the fulfilment by SE of any Trainer Purchases or the purchase of Trainer Credit made by the Customer, an Account Manager or an Authorised User as appropriate from time to time.
SE shall invoice the Customer for the Charges payable:

in respect of the Initial Subscription Term, when the Order Form is submitted by the Customer;
no earlier than 14 days prior to each anniversary of the Subscription Start Date; and
with respect to a Trainer Purchase or the purchase of Trainer Credit, immediately upon confirmation thereof.

The Customer shall pay each invoice within 30 days of the date of such invoice ^[c](the “Due Date”). If SE has not received payment by the Due Date, and without prejudice to any other rights and remedies of SE, SE may, without liability to the Customer, disable the Customer’s account and access to all or part of the Services or deny access to the relevant Trainer Purchase or amount of Trainer Credit. SE shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
If SE has not received payment for outstanding invoices following a period of 60 days from the Due Date, SE may, to the extent it is technically feasible and reasonable to do so, erase all Customer Data from its servers and SE shall thereafter be under no obligation to effect a recovery of all or any part of the Customer Data.
All amounts and fees stated or referred to in this agreement: shall be payable in pounds sterling; are, subject to clauses 11.5 and 12, non-cancellable and non-refundable; and are exclusive of value added tax, which shall be added to SE’s invoices at the rate and in the manner prescribed by law.
If the Customer fails to make a payment due to SE in accordance with this Agreement by the Due Date, then, without limiting SE’s remedies under Clause 12.3, the Customer shall pay interest on the overdue sum at the rate of 4% over the Bank of England’s base rate from time to time, from the due date until payment of the overdue sum, whether before or after judgment.
SE shall be entitled to increase the Charges payable at the start of each Renewal Period upon 60 days’ prior notice to the Customer.

PROPRIETARY RIGHTS

The Customer acknowledges and agrees that SE and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
SE confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement^[d]^[e].

WARRANTIES, INDEMNITIES AND LIMITATION OF LIABILITY

Save as expressly stated in this agreement, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
The Customer shall indemnify SE from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by SE in connection with:

the storage/handling of any Customer Data by SE;
any failure of the Customer or any Authorised User to obtain appropriate licences and/or consents under clause 6.6, or any subsequent revocation or non-renewal of any such licence and/or permit;
any failure of the Customer or any Authorised User to ensure compliance with Applicable Law;
any use of the Services by the Customer or any Authorised User other than as envisaged under this agreement; and
any Customer Default.

SE shall defend the Customer, its officers, directors and employees against any claim that the Platform, Services or Documentation infringes any United Kingdom ^[f]^[g]patent effective as of the Subscription Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

SE is given prompt notice of any such claim;
the Customer provides reasonable co-operation to SE in the defence and settlement of such claim (at SE’s expense, provided such expenses are reasonable and can be evidenced to SE’s satisfaction); and
SE is given sole authority to defend or settle the claim.

In the defence or settlement of any claim which is the subject of the indemnity under clause 10.3 above, SE may procure the right for the Customer to continue using the Services and/or Documentation, replace or modify the Services and/or Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. In no event shall SE, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:

a modification of the Services or Documentation by anyone other than SE;
the Customer’s use of the Services or Documentation in a manner contrary to the instructions given by SE; or
the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from SE or any appropriate authority.

Clauses 10.3 and 10.4 state the Customer’s sole and exclusive rights and remedies, and SE’s (including its employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Nothing in this agreement shall limit/exclude SE’s liability for:

death or personal injury caused by its negligence;
fraud or fraudulent misrepresentation; or
any other liability which cannot be excluded by law.

Subject to clauses 10.3 and 10.6, SE’s liability (whether in contract or otherwise) is limited as follows:

SE shall not be liable for any delay in performance of the Services or any failure to perform the Services that is caused or contributed to by a Force Majeure Event or any Customer Default; and
SE shall not be liable to the Customer for any loss of profit, any anticipated savings, loss of business opportunity, loss of goodwill, loss of or corruption of data, or any indirect, consequential or special loss arising under or in connection with this agreement.

TRAINER PURCHASES AND TRAINER CREDIT

This Agreement applies to any Trainer Purchase, the purchase of Trainer Credit or the redemption of Trainer Credit against a Trainer Purchase.
Where so designated, only the Account Manager may purchase (or redeem) Trainer Credit, or authorise a Trainer Purchase. Where no Account Manager is designated, any Authorised User may do so. In either case, it is the responsibility of the purchaser to ensure that the Trainer Purchase or the amount of Trainer Credit being purchased, as appropriate, is suitable for the needs of the Educational Establishment.
A Trainer Purchase and Trainer Credit shall be made available to the Educational Establishment or the Customer, as appropriate as soon as is practicable following payment by the Customer of the invoice for the same.

SE does not warrant that a Trainer Purchase shall be of satisfactory quality, nor fit for any particular purpose made known to SE by the customer, the Account Manager or any Authorised User prior to making the Trainer Purchase.

All Trainer Purchases and all purchases of Trainer Credit, as well as the redemption of any Trainer Credit against a Trainer Purchase are final and binding upon the Customer, save in the case of Trainer Misconduct.
Trainer Misconduct shall be determined by SE on a case-by-case basis using its own skill and judgment and may include:

Misrepresentation with respect to the trainer’s qualifications, experience or expertise;
Misrepresentation with respect to the content or length of a Trainer Purchase;
Failure by the trainer to be present for webinars or private training sessions agreed by the Authorised User and the trainer more than 24 hours prior to the intended date and time of the webinar or training session; or
Failure by a trainer to uphold the standards of professionalism and integrity which the Customer would reasonably expect of an independent provider of training services.

Sums due with respect to a Trainer Purchase or the purchase of Trainer Credit shall become payable immediately, and the provisions of clause 8 shall apply to them.
Where an Educational Establishment has purchased Trainer Credit prior to the expiry of the Initial Subscription Term or any Renewal Period, the Trainer Credit shall carry over into subsequent Renewal Periods. Upon termination of this Agreement for any reason, all remaining Trainer Credit will be lost.

TERM AND TERMINATION

The Services shall, unless otherwise terminated as provided in this clause, commence upon receipt by the Customer of the Order Confirmation.
Where the Customer subscribes on behalf of an Educational Establishment, the subscription shall commence on the Subscription Start Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be renewed for successive periods of 12 months (each a “Renewal Period“) provided that the Customer pays the Charges for the relevant period. The Initial Subscription Term, together with any Renewal Periods shall together constitute the “Subscription 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:

the other party fails to pay any amount due under this agreement by the Due Date;
the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
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.

On termination of this agreement for any reason:

all licences granted under this agreement shall immediately terminate;
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;
SE may destroy or otherwise dispose of any of the Customer Data in its possession unless SE receives, no later than 10 days after termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. SE shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by SE in returning or disposing of Customer Data; and
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

DATA PROTECTION

In order to provide the Services, SE must process personal data on behalf of the Customer (the “Purpose”). The parties acknowledge and agree that the processing is necessary and proportionate to the Purpose.
The parties shall comply with the Data Protection Policy, which shall be incorporated into this agreement by reference.

NOTICES

Any notice required to be given under or in connection with this agreement shall be in writing and shall be delivered to the other party:

personally/sent by recorded delivery/commercial courier, to its registered office/principal place of business (if not a company); or
emailed to the other party’s email address.

Any notice is deemed received if:

delivered personally, when left at the address specified in clause 14.1.1;
if sent by recorded delivery, at the time delivery is recorded;
if delivered by commercial courier, at the date/time that the courier’s delivery receipt is signed; or
if emailed, at the time of delivery, provided a valid delivery confirmation has been received.

If actual delivery takes place outside of working hours on a Business Day, the date/time of deemed delivery shall be 9.00am on the next Business Day.
This clause shall not apply to the service of any proceedings or other documents in any legal action.

DISPUTE RESOLUTION

If a dispute arises out of or in connection with this Agreement or its performance, validity or enforceability (a “Dispute”) then the parties shall follow the procedure set out in this clause:

either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute;
if the parties are for any reason unable to resolve the Dispute within 20 Business Days of the Dispute Notice, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (an “ADR Notice”) to the other party to the Dispute, requesting mediation. A copy of the ADR Notice should be sent to CEDR Solve. The mediation will start not later than 10 Business Days after the date of the ADR Notice.

If the Dispute is not resolved within 1 month of the mediator’s appointment, then either party may commence Court proceedings, but provided that nothing in this clause shall prevent either party seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.

GENERAL

Save where the Customer is a governing body, multi-academy trust or other entity with jurisdiction over at least one Educational Establishment, each party confirms it is acting on its own behalf and not for the benefit of any other person.
This agreement shall not prevent SE from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided hereunder.
Confidentiality: A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning Disclosing Party’s business or its products or its services which Receiving Party may obtain. Receiving Party shall restrict disclosure of such information to such of its employees, agents or subcontractors as need to know it to discharge Receiving Party’s obligations under this agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind Receiving Party. This clause shall survive termination.
Entire Agreement: This agreement constitutes the entire agreement between the parties, superseding all previous arrangements relating to its subject matter. Any samples, drawings, descriptive matter, illustrations and advertising issued by SE or contained in SE’s websites, catalogues or brochures are issued and/or published for the sole purpose of giving an approximate idea of the Platform and/or Services. They shall not form part of this agreement or have any contractual force. The Customer confirms it has not relied on any statement, promise or representation made or given by or on behalf of SE which is not set out in the agreement. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in the agreement.
Force majeure: SE shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this agreement as a result of a Force Majeure Event.
Assignment and subcontracting: SE may at any time assign, transfer, novate, charge, subcontract, sub-licence and/or deal in any other manner with all or any of its rights under this agreement. The Customer shall not, without the prior written consent of SE, assign, transfer, novate, charge, subcontract, sub-licence or deal in any other manner with all or any of its rights or obligations under this agreement.
Variation/Waiver: Except as set out in this agreement, any variation, including the introduction of any additional terms and conditions shall only be binding when agreed in writing and signed by SE. A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
Severance: If a court or any other competent authority finds that any provision (or part of a provision) of this agreement is invalid/illegal/unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
No partnership: Nothing in this agreement is intended to, or shall be deemed to, constitute a partnership/joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Third parties: A person not a party to this agreement shall not have any rights under/in connection with it.
Compliance with law: The Customer shall at all times comply (and shall ensure that relevant third parties comply) with Applicable Law, including the Bribery Act 2010.
Governing law and jurisdiction: 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, English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.