Juniper Education Service - Terms of Service

These terms and conditions will be incorporated into the Agreement between:

1)  Juniper Education Services (JES), formerly EES for Schools

2) You (the ‘Client’) for your chosen Services

To view the Target Tracker terms of service, click here.

IT IS AGREED as follows:

1. Definitions and Interpretation
In this Agreement except where the context otherwise requires:
1.1. save where stated to the contrary, any reference to this Agreement or to any other document shall include any permitted variation, amendment, supplement, substitution, novation or assignment to such document from time to time;
1.2. any reference to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended, replaced, consolidated or re-enacted;
1.3. a reference to a person includes firms, partnerships and corporations and their successors and permitted assignees or transferees;
1.4. any obligation on a Party to do any act matter or thing includes, unless expressly stated otherwise, an obligation to procure that it is done;
1.5. subject to any express provisions of this Agreement to the contrary, the obligations of either Party are to be performed at that Party’s own cost and expense;
1.6. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
1.7. in the event of any inconsistency between the provisions of the body of this Agreement and the Service Level Descriptor (SLD), the SLD shall take precedence unless stated otherwise;
1.8. references to a public organisation shall be deemed to include a reference to any successor to such public organisation or any organisation or entity which has taken over either or both the functions and responsibilities of such public organisation. References to other persons shall include their successors and assignees.
2. Specification of Services
2.1. In consideration of the Fees as set out in the SLD, JES shall provide the Services to the Client, subject to the provisions of this Agreement and the relevant SLD.
2.2. Any SLD may be amended, varied, added to, replaced or terminated from time to time, in writing and signed by both Parties. Any changes shall be clearly identified, together with (where applicable) the additional or different level of Fees to be paid by the Client.
3. Duration of the Agreement

This Agreement and the rights and obligations of the Parties shall take effect on the Commencement Date (the meaning given to it in the SLD) and (subject to the provisions for termination set out in this Agreement) will continue from year to year unless or until terminated.

4. Performance of the Services
4.1. The Parties shall agree the time and place (if not specified in the SLD) for performance of the Services, subject to the availability of JES’ staff and agents.
4.2. JES shall use reasonable endeavours to provide the Services in accordance with the estimate or timeline agreed by the Parties in the SLD or such other date or timeframe as agreed between the Parties.
4.3. JES further warrants that all obligations shall be performed and rendered by appropriately experienced, qualified and trained staff.
4.4. All resources supplied or requested are subject to availability and may be subject to a first-come-first- served basis. JES will always endeavour to provide the client with the exact resources requested or an appropriate alternative.
5. Fee and Payment
5.1. The Client shall pay the Fees for the Services in accordance with this Agreement and the SLD. In the event of any inconsistency in relation to the Fees between this Agreement and the SLD, the SLD shall take precedence. Fees are subject to revision from time to time to take into account inflation and any other relevant factors. JES reserves the right to adjust pricing for new subscriptions.
5.2. Payment of the Fees for the Services shall be made within thirty (30) days of the date of invoice or (if different) as specified in the relevant SLD. Clients may be invoiced once per year or termly or within thirty (30) days of the Services being provided or as otherwise specified by JES.
5.3. All amounts stated are exclusive of VAT, which shall be charged where applicable in addition at the rate in force at the date any payment is required from the Client.
5.4. If payment of any Fee is not received by any due date, JES shall be entitled:
5.4.1. to charge interest on the outstanding amount at the rate prescribed under the Late Payment of Commercial Debts (Interest) Act 1998, accruing daily;
5.4.2. to require that the Client make a payment in advance of any Services or part of the Services not yet supplied which shall be paid within 10 days of such demand (or if different) as specified in the SLD;
5.4.3. not to provide any further Services or part of the Services; and/or
5.4.4. not to provide any Reports (documentation, presentations or software) due on completion of the Services (until such payment is made).
5.5. All payments shall quote JES’ invoice number and other reference numbers (where applicable).
5.6. Any discounts offered on book purchase cannot be guaranteed. The client will be informed in advance of purchase if standard discounts will not apply.
6. The Client's Obligations
6.1. The Client acknowledges and agrees that for JES to be able to provide the Services the Client shall:
6.1.1. comply with the SLD and co-operate with JES as JES reasonably requires;
6.1.2. provide to JES such information and documentation as JES reasonably requires in a timely manner through methods appropriate to the sensitivity of the data;
6.1.3. make available to JES the facilities, resources, working space, well-maintained and accurate data, and staff as specified in the SLD and/or as JES reasonably requires from time to time;
6.1.4. instruct the Client’s staff and agents to co-operate and assist JES. JES will not tolerate any physical/verbal abuse or discriminatory behaviour towards its staff; and
6.1.5. make every effort to take care of all items on loan as JES reserves the right to charge for any lost, damaged or overdue item.
6.2. JES may charge the Client for any additional reasonable costs and expenses incurred by JES caused by the Client’s instructions, failure to provide instructions or failure to comply with Clause 6.1.
7. Reporting Requirements
7.1. Where required in the SLD to provide Reports (documentation, presentations or software), JES shall supply one copy of the Reports to the Client. JES shall own all copyright, database and other intellectual property rights in the Reports and shall be entitled in discharging its wider role to draw upon the information and experience obtained during the course of providing the Services, subject to any such information not being attributed to the Client if so used.
7.2. JES shall maintain accurate records of the Services provided and retain them for the periods of time after delivery of the Services as detailed in the SLD. It is the Client’s responsibility to retain records provided under these Services in compliance with its own data retention policy.
8. Confidential Information, Freedom of Information and Data Protection
8.1. The Parties shall keep confidential all Confidential Information received by one Party from the other Party relating to this Agreement and the Services. The Parties shall inform their officers, employees and agents of such obligation and use all reasonable endeavours to prevent their officers, employees and agents from making any disclosure to any person of any such Confidential Information. The Parties shall only use the Confidential Information for the purpose of performing their obligations under this Agreement.
8.2. The obligations of Clause 8.1 shall not apply to:
8.2.1. any disclosure of information which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party;
8.2.2. any disclosure of information that is reasonably required by any persons engaged in the performance of their obligations under this Agreement for the performance of those obligations;
8.2.3. any information which a Party can demonstrate is already or becomes generally available and in the public domain otherwise than as a result of a breach of this clause 8;
8.2.4. any disclosure to enable a determination to be made under any dispute resolution procedure or in connection with a dispute between a Party and any of its sub- contractors;
8.2.5. was developed by a Party (or on its behalf) who had no direct access to or use or knowledge of the Confidential Information;
8.2.6. is required to be disclosed by any legislation (including statutory orders and guidance) or by order of a court of competent jurisdiction or by decision of the Information Commissioner or Local Government Ombudsman; or
8.2.7. any disclosure of information to a Party’s insurers, insurance advisers or professional advisers.
8.3. Freedom of Information
8.3.1. The Client acknowledges and agrees that JES is subject to legal duties under the Freedom of Information Act and the Environmental Information Regulations (the Acts),
which may require JES to disclose on request information relating to this Agreement or otherwise relating to the Client.
8.3.2. The Client acknowledges and agrees that JES is required by law to consider each and every request made under the Acts for information.
8.3.3. The Client acknowledges and agrees that all decisions made by JES pursuant to a request under the Acts is solely a matter for and at the discretion of JES.
8.3.4. Notwithstanding anything in this Agreement to the contrary (including without limitation any obligations of confidentiality), JES shall be entitled to disclose information in whatever form pursuant to a request made under the Acts, save that in relation to any information that is Exempt Information JES shall use reasonable endeavours (but shall not be obliged) to consult the Client and shall not:
a. confirm or deny that information is held by JES; or
b. disclose information requested. to the extent that in JES’ opinion the information is eligible in the circumstances for an exemption and therefore JES may lawfully refrain from doing either of the things described in clauses
(a) and (b) of this clause 8.3.4.
8.3.5. In relation to information relating to the Client or the Agreement which the Client requests should be exempt under the Acts, the Client shall indemnify JES for any and all costs (including legal fees) incurred by EES in:
a. assessing the application of any exemption under the Acts; and/or
b. responding to any notice under the Acts; and/or
c. lodging any appeal against a decision of the Information Commissioner in relation to disclosure where such costs are incurred pursuant to efforts by JES to withhold Exempt Information.
8.3.6. JES shall in no event be liable for any loss, damage, harm or detriment, howsoever caused, arising from or in connection with the disclosure under the Acts of any Exempt Information or other information whether relating to this Agreement or otherwise relating to the Client.
8.3.7. The Client shall assist JES as reasonably necessary to enable JES to comply with its obligations under the Acts.
8.4. Data Protection
8.4.1. Only process personal data on documented instructions from you, including with regard to transfers of personal data to a third country (a country outside the European Economic Area) or an international organisation, unless required to do so by law. We will inform you of such a legal requirement before the transfer takes place, unless the law prevents us from doing so.
8.4.2. Ensure that our employees and supplier staff authorised to process the personal data have committed themselves under contract of employment or service to maintain the confidentiality
8.4.3. Take all appropriate technical and organisational measures required to keep the personal data secure.
8.4.4. Assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising data subject rights under the Data Protection Act 2018.
Where applicable, security measures have been produced by service/product area.
8.4.5. Assist you in ensuring compliance with your obligations regarding the security of processing personal data, communicating personal data breaches and conducting Data Protection Impact Assessments, taking into account the information available to us.
8.4.6. At your choice, delete or return all the personal data to you after the end of the provision of these services, deleting existing copies unless we required by law to continue to store the personal data.
8.4.7. Make available to you all information necessary to demonstrate compliance with the personal data processing obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you.
8.4.8. Advise you immediately if any instruction received under item a) above is, in our opinion, likely to infringe data protection law provisions.
8.4.9. Only contract with other data processors to process personal data who comply fully with our commitment to you. Agreeing to these service terms is your general written authorisation to us that we can enter into such arrangements provided that we inform you of any intended addition or replacement of data processors, thereby giving you the opportunity to object to such changes. We remain liable to you for the processing of data processors engaged by us.
8.5. This Clause 8 shall survive expiry and/or termination of this Agreement.
9. Warranties, Liability and Indemnities
9.1. JES warrants that it will use reasonable care and skill in performing the Services.
9.2. JES expressly does not warrant that any result or objective whether stated in this Agreement or not shall be achieved, be achievable or be attained at all or by a given completion date or any other date.
9.3. Except in the case of death or personal injury caused by JES’s negligence, JES’ liability under or in connection with any Service provided pursuant to this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the Fees paid to JES under this Agreement in relation to the Services.
9.4. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
9.5. The Client shall indemnify and hold harmless JES from and against all Claims and Losses arising from loss, damage, liability, injury to JES employees and third parties, infringement of third party intellectual property, or causation of third party losses by reason of or arising out of any information supplied by the Client to JES, its employees or consultants pursuant to this Agreement.
9.6. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
10. Expiry and Termination
10.1. Without prejudice to any other remedies or rights under this Agreement, this Agreement shall continue until terminated by either Party of not less than thirty (30) days prior written notice. Refund of Fees paid by the Client is at the discretion of JES.
10.2. Without prejudice to any other remedies or rights under this Agreement, either Party may terminate this Agreement at any time by written notice to the other Party on the date specified in the notice if the Other Party is in material breach of its obligations under this Agreement and where a breach is capable of remedy, that breach is not remedied by the Other Party following receipt of a notice which specifies the breach and requiring the breach to be remedied within a specified timeframe.
11. Force Majeure

Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. As soon as practicable following such notification of delay or failure in performance, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the relevant circumstances facilitate the continued performance of this Agreement. If such circumstances continue for a continuous period of more than six (6) months, either Party may terminate this Agreement by giving thirty (30) days written notice to the other Party.

12. Continuing Obligations
Save as otherwise expressly provided in this Agreement:
12.1. termination of this Agreement shall be without prejudice to any accrued rights or obligations under this Agreement as at the date of termination; and
12.2. termination of this Agreement shall not affect the continuing rights and obligations of JES and the Client under clause 3 (Duration of this Agreement), Clause 8 (Confidential Information, Freedom of Information and Data Protection), Clause 10 (Expiry and Termination), Clause 24 (Notices), Clause 25 (Law and jurisdiction), Clause 26 (Third parties) or under any other provision of this Agreement which is expressed to survive termination or which is required to give effect to such termination or the consequences of such termination.
12.3. Juniper Education Services Group may at any time assign, novate, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that it gives prior written notice of such dealing.
13. Amendments

This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.

14. Assignment

Neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party provided that JES may however assign, subcontract or delegate all of its rights and obligations under this Agreement to any person to which it transfers, subcontracts or delegates any part of its functions or responsibilities provided that such person undertakes in writing to the Client to be bound by the obligations of JES under this Agreement.

15. Responsibility for Related Parties

Subject to the provisions of this Agreement, the Client shall be responsible as against JES for the acts and omissions of the Clients Related Parties (an officer, agent, contractor, employee or sub-contractor) as if they were the acts and omissions of the Client and JES shall be responsible as against the Client for the acts and omissions of JES Related Parties (an officer, agent, contractor, employee or sub-contractor) as if they were the acts and omissions of JES.

16. Complaint/Dispute Resolution

The Parties shall attempt to negotiate a settlement where a dispute arises in relation to any aspect of the Service through the normal day to day contacts. Where those processes have been exhausted and no resolution has been reached, the Parties may escalate the matter to the Client’s Representative (Headteacher) and JES’ Representative (Head of Service) who shall consult in good faith in an attempt to come to an agreement in relation to the disputed matter. Where the Parties are unable to agree the matter, the matter may be referred to a mutually agreed adjudicator or other person whose decision shall be final.

17. Corrupt Gifts and Fraud

If the Client or any Client Related Party (or anyone employed by or acting on behalf of any of them) or any of its or their agents commits any Prohibited Act (offering, giving to, agreeing JES Limited, Email: enquiries@junipereducation.org Tel: 0345 200 8600 Fax: 0872 113 5220 to give JES staff any gift or consideration of any kind as an inducement or award), then JES shall be entitled to terminate this Agreement and recover from the Client the amount of any Loss resulting from such termination.

18. Entire Agreement

This Agreement contains the whole agreement between the parties in respect of the Services and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.

19. Waiver

No failure or delay by JES in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

20. Agency, Partnership, etc.

This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.

21. Further Assurance

Each Party to this Agreement shall, at the request and expense of the other, execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.

22. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

23. Announcements

No Party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law.

24. Notices
24.1. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or e-mail (confirmed by first class mail), to the address of the relevant Party, or such other address as that Party may from time to time notify to the other Party in accordance with this clause 24.
24.2. Notices sent as above shall be deemed to have been received three (3) working days after the day of posting (in the case of inland first class mail), or on the next working day after transmission (in the case of e-mail messages).
24.3. In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched
25. Law and Jurisdiction

The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.

26. Third Parties

For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.

27. Counterparts

This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument.

28. Insurance

A copy of the insurance policies held by JES shall be made available on request.

29. Health and Safety and Security

Whilst on the Client’s premises, JES shall comply with all reasonable health, safety and security instructions given to it by the Client or any authorised representative of the Client.

30. Intellectual Property Rights (IPR)

Subject to any pre-existing third party rights, all IPR generated under this Agreement shall vest in and be the property of JES.

31. Cancellation
Any cancellation of Services in the SLD should be in writing and JES reserve the right:
31.1. to charge the Fees as set out in the SLD for visits cancelled with less than 10 working days notice.
31.2. to charge the Fees as set out in the SLD or to charge an administration fee of £35 per person for training cancelled with less than 10 working days notice.
31.3. to charge the Fees as set out in the SLD or to charge an administration fee of up to £100 for meetings cancelled (not deferred).
31.4. to charge an administration fee of £50.00 or any BookBus visit cancellations that occur with less than 10 working days’ notice.
31.5. to charge for any items not returned to the service provider within 90 days of terminating the Agreement.
Target Tracker Limited - Terms of Service

These terms and conditions will be incorporated into the Agreement between:

1)  Target Tracker Limited(TT)

2) You (the ‘Client’) for your chosenServices 

IT IS AGREED as follows:

1. Definitions and Interpretation
In this Agreement except where the context otherwise requires:
1.1. save where stated to the contrary, any reference to this Agreement or to any other document shall include any permitted variation, amendment, supplement, substitution, novation or assignment to such document from time to time;
1.2. any reference to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended, replaced, consolidated or re-enacted;
1.3. a reference to a person includes firms, partnerships and corporations and their successors and permitted assignees or transferees;
1.4. any obligation on a Party to do any act matter or thing includes, unless expressly stated otherwise, an obligation to procure that it is done;
1.5. subject to any express provisions of this Agreement to the contrary, the obligations of either Party are to be performed at that Party’s own cost and expense;
1.6. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
1.7. in the event of any inconsistency between the provisions of the body of this document and the Agreement Form (AF), the AF shall take precedence unless stated otherwise;
1.8. references to a public organisation shall be deemed to include a reference to any successor to such public organisation or any organisation or entity which has taken over either or both the functions and responsibilities of such public organisation. References to other persons shall include their successors and assignees.
2. Specification of Services
2.1. In consideration of the Fees as set out in the AF, TT shall provide the Services to the Client, subject to the provisions of this Agreement and the AF.
2.2. Any AF may be amended, varied, added to, replaced or terminated from time to time, in writing and signed by both Parties. Any changes shall be clearly identified, together with (where applicable) the additional or different level of Fees to be paid by the Client.
3. Duration of This Agreement

This Agreement and the rights and obligations of the Parties shall take effect on the Commencement Date (as per the AF) and (subject to the provisions for termination set out in this Agreement) will continue from year to year unless or until terminated.

4. Performance of the Services
4.1. The Parties shall agree the time for activation of the Services, subject to the availability of TT staff and agents.
4.2. TT shall use reasonable endeavours to provide the Services in accordance with the estimate or timeline agreed by the Parties in the AF or such other date or timeframe as agreed between the Parties.
4.3. TT further warrants that all obligations shall be performed and rendered by appropriately experienced, qualified and trained staff.
4.4. All resources supplied or requested are subject to availability and may be subject to a first-come-first- served basis. TT will always endeavour to provide the client with the exact resources requested or an appropriate alternative.
5. Fee and Payment
5.1. The Client shall pay the Fees for the Services in accordance with this Agreement and the AF. In the event of any inconsistency in relation to the Fees between this Agreement and the AF, the AF shall take precedence. Fees are subject to revision from time to time to take into account inflation and any other relevant factors. TT reserves the right to adjust pricing for new subscriptions.
5.2. Payment of the Fees for the Services shall be made within thirty (30) days of the date of invoice or (if different) as specified in the AF. Clients may be invoiced once per year or termly or within thirty (30) days of the Service being provided or as otherwise specified by TT.
5.3. All amounts stated are exclusive of VAT, which shall be charged where applicable in addition at the rate in force at the date any payment is required from the Client.
5.4. If payment of any Fee is not received by any due date, TT shall be entitled:
5.4.1. to charge interest on the outstanding amount at the rate prescribed under the Late Payment of Commercial Debts (Interest) Act 1998, accruing daily;
5.4.2. to require that the Client make a payment in advance of any Services or part of the Services not yet supplied which shall be paid within 10 days of such demand (or if different) as specified in the AF;
5.4.3. not to provide any further Services or part of the Services; and/or
5.4.4. not to provide any Reports (documentation, presentations or software) due on completion of the Services (until such payment is made).
5.5. All payments shall quote the TT invoice number and other reference numbers (where applicable).
5.6. Any discounts offered on book purchase cannot be guaranteed. The client will be informed in advance of purchase if standard discounts will not apply.
6. The Client's Obligations
6.1. The Client acknowledges and agrees that for TT to be able to provide the Services the Client shall:
6.1.1. comply with the AF and co-operate with TT as TT reasonably requires;
6.1.2. provide to TT such information and documentation as TT reasonably requires in a timely manner through methods appropriate to the sensitivity of the data;
6.1.3. make available to TT the facilities, resources, working space, well-maintained and accurate data, and staff as TT reasonably requires from time to time;
6.1.4. instruct the Client’s staff and agents to co-operate and assist TT. TT will not tolerate any physical/verbal abuse or discriminatory behaviour towards its staff; and
6.1.5. make every effort to take care of all items on loan as TT reserves the right to charge for any lost, damaged or overdue item.
6.2. TT may charge the Client for any additional reasonable costs and expenses incurred by TT caused by the Client’s instructions, failure to provide instructions or failure to comply with Clause 6.1.
7. Reporting Requirements
7.1. Where required to provide Reports (documentation, presentations or software), TT shall supply one copy of the Reports to the Client. TT shall own all copyright, database and other intellectual property rights in the Reports and shall be entitled in discharging its wider role to draw upon the information and experience obtained during the course of providing the Services, subject to any such information not being attributed to the Client if so used.
7.2. TT shall maintain accurate records of the Services provided and retain them for a period of time after delivery of the Services. It is the Client’s responsibility to retain records provided under these Services in compliance with its own data retention policy
8. Confidential Information, Freedom of Information and Data Protection
8.1. The Parties shall keep confidential all Confidential Information received by one Party from the other Party relating to this Agreement and the Services. The Parties shall inform their officers, employees and agents of such obligation and use all reasonable endeavours to prevent their officers, employees and agents from making any disclosure to any person of any such Confidential Information. The Parties shall only use the Confidential Information for the purpose of performing their obligations under this Agreement.
8.2. The obligations of Clause 8.1 shall not apply to:
8.2.1. any disclosure of information which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party;
8.2.2. any disclosure of information that is reasonably required by any persons engaged in the performance of their obligations under this Agreement for the performance of those obligations;
8.2.3. any information which a Party can demonstrate is already or becomes generally available and in the public domain otherwise than as a result of a breach of this clause 8;
8.2.4. any disclosure to enable a determination to be made under any dispute resolution procedure or in connection with a dispute between a Party and any of its sub- contractors;
8.2.5. was developed by a Party (or on its behalf) who had no direct access to or use or knowledge of the Confidential Information;
8.2.6. is required to be disclosed by any legislation (including statutory orders and guidance) or by order of a court of competent jurisdiction or by decision of the Information Commissioner or Local Government Ombudsman; or
8.2.7. any disclosure of information to a Party’s insurers, insurance advisers or professional advisers.
8.3. Freedom of Information
8.3.1. The Client acknowledges and agrees that TT is subject to legal duties under the Freedom of Information Act and the Environmental Information Regulations (the Acts), which may require TT to disclose on request information relating to this Agreement or otherwise relating to the Client.
8.3.2. The Client acknowledges and agrees that TT is required by law to consider each and every request made under the Acts for information.
8.3.3. The Client acknowledges and agrees that all decisions made by TT pursuant to a request under the Acts is solely a matter for and at the discretion of TT.
8.3.4. Notwithstanding anything in this Agreement to the contrary (including without limitation any obligations of confidentiality), TT shall be entitled to disclose information in whatever form pursuant to a request made under the Acts, save that in relation to any information that is Exempt Information TT shall use reasonable endeavours (but shall not be obliged) to consult the Client and shall not:
a. Confirm or deny that information is held by TT; or
b. disclose information requested. to the extent that in TT’s opinion the information is eligible in the circumstances for an exemption and therefore TT may lawfully refrain from doing either of the things described in clauses (a) and (b) of this clause 8.3.4.
8.3.5. In relation to information relating to the Client or the Agreement which the Client requests should be exempt under the Acts, the Client shall indemnify TT for any and all costs (including legal fees) incurred by TTS in:
a. assessing the application of any exemption under the Acts; and/or
b. responding to any notice under the Acts; and/or
c. lodging any appeal against a decision of the Information Commissioner in relation to disclosure where such costs are incurred pursuant to efforts by TT to withhold Exempt Information.
8.3.6. TT shall in no event be liable for any loss, damage, harm or detriment, howsoever caused, arising from or in connection with the disclosure under the Acts of any Exempt Information or other information whether relating to this Agreement or otherwise relating to the Client.
8.3.7. The Client shall assist TT as reasonably necessary to enable TT to comply with its obligations under the Acts.
8.4. Data Protection
8.4.1. Only process personal data on documented instructions from you, including with regard to transfers of personal data to a third country (a country outside the European Economic Area) or an international organisation, unless required to do so by law. We will inform you of such a legal requirement before the transfer takes place, unless the law prevents us from doing so.
8.4.2. Ensure that our employees and supplier staff authorised to process the personal data have committed themselves under contract of employment or service to maintain the confidentiality
8.4.3. Take all appropriate technical and organisational measures required to keep the personal data secure.
8.4.4. Assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising data subject rights under the Data Protection Act 2018.
Where applicable, security measures have been produced by service/product area.
8.4.5. Assist you in ensuring compliance with your obligations regarding the security of processing personal data, communicating personal data breaches and conducting Data Protection Impact Assessments, taking into account the information available to us.
8.4.6. At your choice, delete or return all the personal data to you after the end of the provision of these services, deleting existing copies unless we required by law to continue to store the personal data.
8.4.7. Make available to you all information necessary to demonstrate compliance with the personal data processing obligations laid down in this section and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you.
8.4.8. Advise you immediately if any instruction received under item a) above is, in our opinion, likely to infringe data protection law provisions.
8.4.9. Only contract with other data processors to process personal data who comply fully with our commitment to you. Agreeing to these service terms is your general written authorisation to us that we can enter into such arrangements provided that we inform you of any intended addition or replacement of data processors, thereby giving you the opportunity to object to such changes. We remain liable to you for the processing of data processors engaged by us.
8.5. This Clause 8 shall survive expiry and/or termination of this Agreement.
9. Warranties, Liability and Indemnities
9.1. TT warrants that it will use reasonable care and skill in performing the Services.
9.2. TT expressly does not warrant that any result or objective whether stated in this Agreement or not shall be achieved, be achievable or be attained at all or by a given completion date or any other date.
9.3. Except in the case of death or personal injury caused by TT’s negligence, TT’s liability under or in connection with any Service provided pursuant to this Agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the Fees paid to TT under this Agreement in relation to the Services.
9.4. Neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
9.5. The Client shall indemnify and hold harmless TT from and against all Claims and Losses arising from loss, damage, liability, injury to TT employees and third parties, infringement of third party intellectual property, or causation of third party losses by reason of or arising out of any information supplied by the Client to TT, its employees or consultants pursuant to this Agreement.
9.6. Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
10. Expiry and Termination
10.1. Without prejudice to any other remedies or rights under this Agreement, this Agreement shall continue until terminated by either Party of not less than thirty (30) days prior written notice. Refund of Fees paid by the Client is at the discretion of TT.
10.2. Without prejudice to any other remedies or rights under this Agreement, either Party may terminate this Agreement at any time by written notice to the other Party on the date specified in the notice if the Other Party is in material breach of its obligations under this Agreement and where a breach is capable of remedy, that breach is not remedied by the Other Party following receipt of a notice which specifies the breach and requiring the breach to be remedied within a specified timeframe.
11. Force Majeure

Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. As soon as practicable following such notification of delay or failure in performance, the Parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the relevant circumstances facilitate the continued performance of this Agreement. If such circumstances continue for a continuous period of more than six (6) months, either Party may terminate this Agreement by giving thirty (30) days written notice to the other Party.

12. Continuing Obligations
Save as otherwise expressly provided in this Agreement:
12.1. termination of this Agreement shall be without prejudice to any accrued rights or obligations under this Agreement as at the date of termination; and
12.2. termination of this Agreement shall not affect the continuing rights and obligations of TT and the Client under clause 3 (Duration of this Agreement), Clause 8 (Confidential Information, Freedom of Information and Data Protection), Clause 10 (Expiry and Termination), Clause 24 (Notices), Clause 25 (Law and jurisdiction), Clause 26 (Third parties) or under any other provision of this Agreement which is expressed to survive termination or which is required to give effect to such termination or the consequences of such termination.
12.3. – TT may at any time assign, novate, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that it gives prior written notice of such dealing.
13. Amendments

This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.

14. Assignment

Neither Party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party provided that TT may however assign, subcontract or delegate all of its rights and obligations under this Agreement to any person to which it transfers, subcontracts or delegates any part of its functions or responsibilities provided that such person undertakes in writing to the Client to be bound by the obligations of TT under this Agreement.

15. Responsibility for Related Parties

Subject to the provisions of this Agreement, the Client shall be responsible as against TT for the acts and omissions of the Clients Related Parties (an officer, agent, contractor, employee or sub-contractor) as if they were the acts and omissions of the Client and TT shall be responsible as against the Client for the acts and omissions of TT Related Parties (an officer, agent, contractor, employee or sub-contractor) as if they were the acts and omissions of TT.

16. Complaint/Dispute Resolution

The Parties shall attempt to negotiate a settlement where a dispute arises in relation to any aspect of the Service through the normal day to day contacts. Where those processes have been exhausted and no resolution has been reached, the Parties may escalate the matter to the Client’s Representative (Headteacher) and TT’s Representative (Head of Service) who shall consult in good faith in an attempt to come to an agreement in relation to the disputed matter. Where the Parties are unable to agree the matter, the matter may be referred to a mutually agreed adjudicator or other person whose decision shall be final.

17. Corrupt Gifts and Fraud

If the Client or any Client Related Party (or anyone employed by or acting on behalf of any of them) or any of its or their agents commits any Prohibited Act (offering, giving to, agreeing to give TT staff any gift or consideration of any kind as an inducement or award), then TT shall be entitled to terminate this Agreement and recover from the Client the amount of any Loss resulting from such termination.

18. Entire Agreement

This Agreement contains the whole agreement between the parties in respect of the Services and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter. The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.

19. Waiver

No failure or delay by TT in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.

20. Agency, Partnership, etc.

This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.

21. Further Assurance

Each Party to this Agreement shall, at the request and expense of the other, execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.

22. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

23. Announcements

No Party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law.

24. Notices
24.1. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or e-mail (confirmed by first class mail), to the address of the relevant Party, or such other address as that Party may from time to time notify to the other Party in accordance with this clause 24.
24.2. Notices sent as above shall be deemed to have been received three (3) working days after the day of posting (in the case of inland first class mail), or on the next working day after transmission (in the case of e-mail messages).
24.3. In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and despatched and despatch of the transmission was confirmed and/or acknowledged as the case may be.
25. Law and Jurisdiction

The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.

26. Third Parties

For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.

27. Counterparts

This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument.

28. Insurance

A copy of the insurance policies held by TT shall be made available on request.

29. Health and Safety and Security

Whilst on the Client’s premises, TT shall comply with all reasonable health, safety and security instructions given to it by the Client or any authorised representative of the Client.

30. Intellectual Property Rights (IPR)

Subject to any pre-existing third-party rights, all IPR generated under this Agreement shall vest in and be the property of TT.

31. Cancellation
TT Subscriptions are ongoing and will continue to be charged unless cancellation is received at least 4 weeks prior to the end of the annual subscription renewal date – a reminder will be sent to your school.
Any cancellation of Services should be in writing and TT reserve the right:
31.1. to charge for visits cancelled with less than 10 working days’ notice.
31.2. to charge an administration fee of £35 per person for training cancelled with less than 10 working days’ notice.
Target Tracker Limited - Terms of Service Addendum

Target Tracker software is produced by Target Tracker Limited.

This document serves as an addendum to the Target Tracker Terms of Service, outlining the terms of the agreement between the licensor (hereto referred to as TT) and the licensee (you, the customer).

Please read the Target Tracker Terms of Service and this document carefully before using the Software. This Agreement is a legal agreement between Target Tracker Limited and the Licensee for the Licence of the Software.

1. Definitions, Interpretation and scope

1.1. In this agreement, unless otherwise provided:

2018 Act means the Data Protection Act 2018 including the General Data Protection Regulations (2016);

Agreement means the terms in the main body of this agreement, the appendices and the Schedule;

Business Day means any day (other than a Saturday or Sunday) on which banks are generally open in London for non- automated normal business;

Data means the pupil data or information, in whatever form, made available to TT by the Licensee;

Derived Data means any Data (wholly or in part) manipulated to such a degree that it cannot be identified as originating or deriving directly from the Data or such that it can be so identified;

Distribute means to make Data accessible (including the provision of access through a database or other application populated with the Data, re-selling, sub- licensing, transferring or disclosing the Data) by any means, including any electronic means, to any TT User;

TT User means any person authorised by TT to access and use the Data;

TT’s Licensor means any licensor of TT to including a provider software or third-party libraries in object code or otherwise;

Good Industry Practice means in relation to any undertaking and any circumstances, the exercise of that degree of care, and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;

Helpdesk means a manned telephone line;

Initial Licence Period means a period of twelve-months from commencement of this Agreement;

Intellectual Property Rights means copyright, rights in inventions, patents, know- how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights, chip topography rights, and any other intellectual property rights (whether registered or unregistered) and all applications for any of the foregoing, anywhere in the world;

Licence means the licence granted by TT to the Licensee in respect of the Software subject to the terms of the Agreement;

Licence Fee means the amount payable by the Licensee to TT in respect of the Licence;

Licence Period means the duration of the Licence;

Manipulate means to combine or aggregate the Data (wholly or in part) with other data or information or to adapt the Data (wholly or in part);

Manipulated Data means any Data which has been manipulated. Manipulated Data includes any Derived Data; personal data that is manipulated is anonymized or pseudonymised to the extent it is no longer personally identifiable Data;

Modifications mean any correction, modification, enhancement, update or other change made by TT to the Software;

Party means each of TT and the Licensee and together being the ‘Parties’;

Renewal Licence Period means the twelve-month period after the expiry of the Initial Licence Period and each subsequent twelve-month period;

Representatives means the employees, agents, contractors or representatives of the Licensee and other persons duly authorised on its behalf in the using of the Software pursuant to the Agreement;

Software means the Target Tracker desktop software

Helpdesk Services means the provision of the Helpdesk during Working Hours;

Update means a maintenance release, correction, amendment, or update of the Software provided without additional charge to the Licensee;

Working Hours means the hours between 0900 and 1700 local time in London, United Kingdom, Monday to Friday on Business Days.

1.2. Unless the context otherwise requires:
1.2.1. each gender includes the others;
1.2.2. the singular includes the plural and vice versa;
1.2.3. references to Clauses, Schedules or Appendices refers to Clauses, Schedules or Appendices of this Agreement;
1.2.4. references to this Agreement include its Schedules and Appendices;
1.2.5. references to persons include individuals, unincorporated bodies, government entities, companies and corporations; and
1.2.6. the words ‘including’ or ‘includes’ means including or includes without limitation.
2. Grant of license
2.1.1. Subject to the payment of the applicable Licence Fee, TT grants to the Licensee a non- exclusive and non-transferable limited Licence to use the Software in accordance with the terms of this Agreement.
2.1.2. The Licence will be granted for the Initial Period and will continue thereafter from year to year unless or until terminated in accordance with the provisions of this Agreement.
2.1.3. If use of the Software outside the United Kingdom is authorised by TT, the Licensee shall be responsible at its expense for complying with all applicable laws and regulations and obtaining any applicable licences and consents, relating to the import, export, installation, or use of the Software.
3. Fees and Payment
3.1. The Licensee shall pay to TT the Licence Fee under this Agreement within thirty (30) days of receipt of TT’s invoice, or as otherwise specified by TT.
3.2. The Licence Fee is exclusive of VAT and any other Sales Tax or Duty which, if applicable, shall be paid additionally by the Licensee at the then prevailing rate.
3.3. If any sum due to TT under the Agreement (other than one which is the subject of a genuine dispute which is notified to TT in accordance with this Agreement) is in arrears for more than 30 days after the due date, TT may without prejudice to any other right or remedy:
3.4. charge interest on such overdue sum on a day-to-day basis from the original due date until paid in full at the rate prescribed under the Late Payment of Commercial Debts (Interest) Act 1998; and/or
3.5. The Licensee must notify TT in writing within fifteen (15) Business Days of receipt of an invoice if the Licensee considers such invoice incorrect or invalid for any reason and the reasons for withholding payment failing which the Licensee will raise no objection to any such invoice and will make full payment in accordance with it.
4. Delivery and installation
4.1. Where payment of any part of the Licence Fee is due before delivery or installation of the Software TT may withhold delivery or installation or performance until such payment has been received.
4.2. Unless otherwise specified by TT, the Licensee is responsible for installation of the Software.
4.3. If TT is delayed from performing its obligations by reason of any fault or negligence of the Licensee, then the Licensee shall pay to TT all reasonable and demonstrable costs attributable to such delay.
5. Permitted use
5.1. The Licensee may use the Software only for its own internal purposes.
5.2. The Licensee shall not use or attempt to use the Software (whether on behalf of, or for the benefit of, itself or a third party) or permit or allow any third party to:
5.2.1. distribute or resell the Software;
5.2.2. contrary to any restriction stated in the Agreement; or
5.2.3. unless otherwise expressly permitted by the Agreement.
5.3. The Licence shall include the right of the Licensee’s Representatives to use and have access to the Software to the extent that the Licensee may use and have access to the Software provided that:
5.3.1. such use is controlled by the Licensee; and
5.3.2. such use is otherwise subject to and in accordance with the terms of the Agreement.
5.4. The Licensee shall procure that its Representatives:
5.4.1. are aware of the obligations or restrictions imposed on the Licensee under the Agreement; and
5.4.2. shall use its reasonable endeavours to ensure that they comply with the provisions of the Agreement.
6. Restriction on use
6.1. Except to the extent required to be permitted by applicable law or as expressly allowed in this Agreement, the Licensee shall not:
6.1.1. translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the Software, nor arrange or create derivative works based on the Software;
6.1.2. make for any purpose including (without limitation) error correction, any modifications, additions or enhancements to the Software;
6.1.3. permit the whole or any part of the Software to be combined or merged with or become incorporated in any other program;
6.1.4. assign, distribute, licence, sell, charge or otherwise deal in or encumber the Software;
6.1.5. use the Software on behalf of or make it available to any third party nor allow or permit a third party to do so; or
6.1.6. remove or alter any copyright or other proprietary notice on any of the Software.
7. Proprietary rights
7.1. The Licensee shall not acquire in any way any title, rights of ownership, Intellectual Property Rights of whatever nature in the Software or in any copies of it. All such interests and rights are and shall remain the exclusive and absolute property of TT or TT’s Licensor as applicable.
7.2. The Intellectual Proprietary Rights and all other proprietary rights in any materials developed under this Agreement including the Modifications will remain vested in and be the absolute property of TT or TT’s Licensor. The Licensee will do all such acts and things as TT may reasonably require for the purpose of preserving or perfecting such vesting.
7.3. Those Modifications supplied for use as part of the Software will be deemed to form part of the Software and be subject to the Licence.
7.4. The Licensee agrees not to conceal, modify, remove, or destroy in any way any proprietary markings of TT or TT’s Licensor on or in the Software including without limitation any copyright notices or confidential legends placed upon or contained within the Software or any related materials and documentation. The Licensee shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
7.5. The Licensee acknowledges and understands that the Software contains confidential and proprietary information and the Licensee shall:
7.5.1.not provide or otherwise make any of the Software available for any reason to any other person except as permitted by the Agreement or otherwise in accordance with express written authority signed by an authorised signatory of TT;
7.5.2.keep confidential the Software and limit access to the same to those of its Representatives who either have a need to know or who are engaged in the use of the Software;
7.5.3. maintain an accurate and up-to-date record of the number of instances of the Software installed which are in use by the Licensee and of users and Representatives in each environment;
7.5.4. apply appropriate security measures to ensure that all relevant Representatives are advised that the Software constitutes confidential and proprietary information of TT
and/or TT’s Licensors and that all Intellectual Property Rights therein are the property of TT and/or TT’s Licensor and that they owe a duty of confidentiality to TT and/or TT’s Licensor.
7.6. The Licensee shall effect and maintain appropriate security measures to safeguard the Software from unauthorised access, use or copying by any person.
7.7. The Licensee shall notify TT as soon as reasonably practicable if the Licensee becomes aware of any unauthorised access to, use or copying of any part of the Software by any person.
7.8. The Licensee shall, at reasonable times during Working Hours on being given reasonable written notice allow TT to check on the use by the Licensee of the Software and all materials and information belonging to or under the control of TT to which the Licensee is given access or receives directly or indirectly as a result of the operation of the Agreement. TT shall comply with the Licensee’s reasonable policies on confidentiality, security, health and safety at work, entry times and conduct of visitors to the Licensee’s premises which have been notified in writing to TT.
8. Warranties
8.1. Subject to the exceptions and the limitation upon its liability, TT warrants that it has the right, power and authority to Licence the Software upon the terms of the Agreement.
8.2. The Licensee acknowledges that:
8.2.1. TT is not and cannot be aware of the extent of any potential loss or damage to the Licensee resulting from any failure of the Software or any failure by TT to discharge its obligations under the Agreement;
8.2.2. the Software cannot be tested in every possible combination and operating environment, and that it is not possible to produce or maintain economically (if at all) computer programs known to be entirely error free or which operate in uninterrupted manner.
8.3. TT does not warrant that the operation of the Software shall be uninterrupted or error-free.
8.4. The Licensee acknowledges that the Software has not been prepared to meet the Licensee’s individual requirements and that it is the Licensee’s responsibility to ensure that the facilities and functions of the Software meet the Licensee’s requirements.
8.5. To the extent permitted by applicable law, TT disclaims all other warranties and conditions as to the Software including but not limited to implied warranties relating to quality, fitness for a particular purpose, or ability to achieve a particular result.
8.6. Without prejudice to the Licensee’s right to terminate this Agreement for material breach the Licensee’s sole remedy against TT for any failure on the part of the Software shall be to require TT to use all reasonable endeavours to correct such failure, free of additional charge, and within a reasonable time.
8.7. TT undertakes to use all reasonable endeavours to remedy free of charge to the Licensee any faulty work arising from a breach of the warranty which is reported to TT in writing within ninety (90) days after performance by TT of such work. If TT rectifies such faulty work by the provision at TT’s option of replacement or additional materials or services within a reasonable period of time, then TT will have no other liability of any kind in respect of or arising from such faulty work.
8.8. TT will not be liable to remedy any problem arising from or caused by any modification (whether by way of alteration, deletion, addition or otherwise) made to any part of the Software (including data structure) by persons other than the Licensee without its express prior written consent.
9. Limitation of liability
9.1. Nothing in the Agreement shall exclude or restrict either Party’s liability for:
9.1.1. fraud;
9.1.2. death or personal injury resulting from the negligence of a Party or its employees while acting in the course of their employment; or
9.1.3. any other liability that cannot be limited or excluded by law.
9.2. Subject to clause 9.1, TT’s liability to the Licensee in contract, tort (including negligence), misrepresentation (whether innocent or negligent) breach of statutory duty or otherwise arising out of or in connection with the Software or other performance or non-performance of TT’s obligations under the Agreement shall:
9.2.1. be limited to the Licence Fee paid by the Licensee under the Agreement for the preceding twelve months in respect of any one incident or any series of connected incidents;
9.2.2. not extend to any:
a. loss of profits;
b. loss of revenue;
c. loss of business;
d. loss of goodwill;
e. loss of contracts;
f. loss of anticipated savings;
g. loss of production;
h. loss of or corruption to data; or
i. any other special, indirect or consequential loss or damage whatsoever, whether sustained by the Licensee or any other person and even if foreseeable or if TT has been advised of their possibility.
9.3. All advice and recommendations given by TT and its representatives shall be made in good faith and in accordance with Good Industry Practice and on the basis of information provided to TT and otherwise generally available. Advice or recommendations by TT shall in no circumstances constitute a warranty by TT as to the accuracy of such advice or recommendations and TT shall not in any event be liable for any loss or damage that may be suffered whether directly or indirectly as a result of the Licensee acting upon such advice or recommendations.
10. Licensee's obligations
10.1. The Licensee undertakes to:
10.1.1. provide TT with all necessary information, facilities, support and, services reasonably required by TT for the performance of its obligations to the Licensee under the Agreement;
10.1.2. provide or arrange at its expense for any specialist training in the Licensee’s methods, business practices, applications or products which it is required to reasonably undertake by TT or which TT considers reasonably necessary for the proper performance of its obligations under the Agreement;
10.1.3. ensure that the Software is used in a proper manner by competent trained employees only, or by persons under their supervision; and
10.1.4. be fully responsible for all applications, data, interfaces, hardware and equipment within its control unless agreed otherwise.
11. Helpdesk
11.1. TT shall provide Helpdesk Services to the Licensee in relation to the Software during the Initial Licence Period and each subsequent Renewal Licence Period.
11.2. The Licensee acknowledges that provision of the Helpdesk Services does not imply any guarantee that TT will be able to assist the Licensee in achieving any results from the Software which are not technically feasible.
11.3. TT shall be under no obligation to provide services in relation to the Software additional to the Helpdesk Services, or which do not qualify under or are excluded from the Helpdesk Services but if it does so, the Licensee shall pay the cost of such services to TT.
11.4. Before contacting the Helpdesk, users should explore help that is readily available in their setting. This help might come from the help utility that is built into the software, and/or peers in the department. When such local help has been exhausted and assistance is needed, then the users should contact the Helpdesk. Throughout the Licence Period, TT will send guidance by email or other means to the Licensee directly relating to the software, associated software, and its use. The Licensee will ensure contact details are kept up-to-date.
11.5. Support term – The term of service for support hours is defined as one year from the date of purchase or until the included 3 hours support has been used, whichever comes first. Further support can be purchased at £70 per hour. The included 3 hours does not include issues as a result of technical faults with the software.
12. Data use
12.1. The Licensee grants to TT a non-exclusive, non-transferable licence to:
12.1.1. access, view and manipulate Data and create derived Data;
12.1.2. store the Data and manipulated Data; and
12.1.3. ibute the Data and manipulate Data to TT Users.
12.2. TT shall ensure that appropriate security measures shall be applied to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Data.
12.3. The Parties shall comply with their obligations under the 2018 Act and the Computer Misuse Act 1990 in so far as performance of this Licence Agreement gives rise to obligations under those Acts.
12.4. Notwithstanding the general obligation in clause 12.3, where it is processing personal data (as defined by the 2018 Act) as a Data Processor (as defined by the 2018 Act) the Parties shall ensure that they have in place appropriate technical and organisational measures to ensure the security of the personal data (and to guard against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data), as required under the Sixth Data Protection Principle in Article 5(f) of the General Data Protection Regulations (2016);
13. Termination
13.1. Either Party may (without prejudice to its other rights) terminate the Agreement at any time forthwith by notice in writing to the other if:
13.1.1. a voluntary arrangement is approved, or an administration order is made, or receiver or administrative receiver is appointed over any of the other Party’s assets or undertaking or resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding up petition or make a winding up order; or
13.1.2. the other Party defaults in due performance or observance of any of its material obligations under the Agreement, and (in the case a remedial breach) fails to remedy the breach within 30 days of receipt of a written notice to do so; or
13.1.3. are in breach of any of the obligations of confidentiality specified in clause [16] of this Agreement.
13.2. TT may terminate this Agreement at any time forthwith by notice in writing to the Licensee if the Licensee or Representatives:
13.2.1. infringe TT’s (or TT’s Licensor’s) Intellectual Property Rights; or
13.2.2. are in breach of any of the obligations of confidentiality specified in this Agreement;
13.2.3. and (where capable of remedy) such breach has not been remedied within fourteen (14) days
13.2.4. of TT having given written notice to the Licensee in writing specifying the breach and requiring its remedy within such fourteen (14) day period.
13.3. Termination of this Agreement for any reason, shall be without prejudice to the rights and liabilities of either Party which may have accrued on, or at any time up to the date of termination, nor affect the coming into or continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
13.4. Upon termination of this Agreement by TT then the Licence will terminate and the Licensee shall forthwith cease using the Software and shall remove or destroy forthwith all copies of the Software or, at TT’s request, return all copies of the same to TT.
14. Force Majeure
14.1. Force Majeure means an event or sequence of events beyond a Party’s reasonable control preventing or delaying it from performing its obligations hereunder. Inability to pay is not Force Majeure.
14.2. A Party will not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:
14.2.1. promptly notifies the other of the Force Majeure event and its expected duration; and
14.2.2. uses reasonable endeavours to minimise the effects of that event.
14.3. If, due to Force Majeure, a Party:
14.3.1. is (or is likely to be) unable to perform a material obligation; or
14.3.2. is (or is likely to be) delayed in or prevented from performing its obligations for a continuous period of more than sixty (60) Business Days;
14.3.3. the Parties will renegotiate the Agreement to achieve, as nearly as possible, its original commercial intent.
15. Confidentiality
15.1. Each Party will treat as confidential all information obtained from the other Party under or in connection with this Agreement which is designated as confidential by the other Party or which is by its nature clearly confidential. The recipient Party will not disclose such confidential information to any person (except only to those employees, agents, sub-contractors, suppliers and other representatives who need to know it) or use such confidential information without the other Party’s prior written consent. This clause will not extend to information which:
15.1.1. was in the possession of the recipient Party (with full right to disclose) before receiving it;
15.1.2. is already or becomes public knowledge (otherwise than as a result of a breach of this clause);
15.1.3. is independently developed by the recipient Party without access to or use of such information;
15.1.4. is required to be disclosed by law or regulatory authority.
15.2. Each Party will ensure that all persons to whom it discloses any confidential information of the other Party are aware, prior to disclosure, of the confidential nature of the information and that they owe a duty of confidence to the other Party. These obligations of confidentiality will survive any termination of this Agreement.
15.3. Each Party will establish and maintain adequate security measures to safeguard information and data of the other Party in its possession from unauthorised access use or copying.
16. Dispute resolution
16.1. Without prejudice to the termination provisions in this Agreement, if a Party believes in good faith that the other Party (Other Party) has breached any material term of this Agreement, that Party (Aggrieved Party) shall notify the Other Party, in writing setting forth in reasonable detail the nature of the alleged breach (Notice of Breach). If the Other Party does not dispute the validity of the Notice of Breach, it shall promptly undertake to cure the breach described therein. If, the Other Party disputes the validity of the Notice of Breach, then the Parties shall comply with the following provisions [in order to expedite the review, verification, cure and remedy of any such breach].
16.2. Any dispute to be resolved under this Agreement shall first be submitted for resolution to the representatives of each Party then charged with the administration of this Agreement. If such representatives are unable to resolve the dispute within five (5) Business Days after the date on which the Notice of Breach is received by the Other Party, then, the dispute shall be submitted to the Directors (or persons of comparable authority) of each Party for resolution. If such Directors are unable to resolve the dispute within ten (10) Business Days after the date on which the Notice of Breach is received by the Other Party, then each Party shall be free to pursue whatever remedies hereunder, at law or in equity may be available to it in respect of the subject matter of the dispute.
16.3. Notwithstanding anything herein to the contrary, the cure period provided in this Agreement for any breach which is the subject of a dispute submitted for resolution in accordance with this clause will be suspended during foregoing dispute resolution procedures and commence to run on the day after the dispute has been resolved in favour of the Aggrieved Party or the dispute resolution procedures have been exhausted, whichever is applicable.
17. Mediation

Before resorting to legal proceedings, the Parties may (but shall not be obliged to) attempt to settle by negotiations between them in good faith all disputes or differences between them out of or in connection with this Agreement. The Parties further agree that (provided that both Parties consider that such negotiations will be assisted thereby), they will appoint a Mediator by mutual agreement, or failing mutual agreement each Party will appoint a Mediator of their choice and the two appointed Mediators will appoint a third mediator to assist them and the Parties in such negotiations. Mediation shall take place in London or such other place as the Parties mutually agree. Both Parties agree to co-operate fully with the appointed Mediator (or Mediators), provide such assistance as necessary to enable the Mediators to discharge their duties, and to bear equally between them the fees and expenses of the Mediators, but otherwise each Party shall bear their own costs. Unless the Parties otherwise agree in writing, if Mediation is unable to resolve the dispute within thirty (30) days from the Notice of Breach above then the dispute shall be determined by the courts of England and Wales.

18. Assignment
18.1. Neither Party shall be entitled to assign or sub-licence to any third party any of its rights or obligations under the Agreement without the other Party’s prior written consent.
18.2. TT shall be entitled to assign or sub-contract its rights and obligations under this Agreement to any person, but TT shall give notice of such assignment or sub- contracting in writing to the Licensee.
19. Severability

If any part, term or provision of the Agreement not being of a fundamental nature be held illegal or unenforceable the validity or enforceability of the remainder of the contract shall not be affected.

20. Entire agreement
20.1. This Agreement is the entire agreement between the Parties in relation to its subject matter. To the fullest extent permitted by law no other terms apply.
20.2. Without prejudice to clause 20.1, or to liability for fraudulent misrepresentation, each Party acknowledges that has not relied on any statement or representation given by or for the other in entering into this Agreement.
21. No waiver

Unless otherwise agreed in writing, no delay, act or omission by either Party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

22. Notice
Notices under this Agreement will be in writing and sent to the Party’s address above. They may be given, and will be deemed received:
22.1. by first-class post: two Business Days after posting;
22.2. by airmail: seven Business Days after posting;
22.3. by hand: on delivery;
22.4. by facsimile: on receipt of a successful transmission report from the correct number;
22.5. by email: on receipt of a delivery or read return mail from the correct address.
23. Variation

The Agreement may be amended only in writing signed by both Parties.

24. Relationship of the parties

This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided in this Agreement.

25. Rights of third parties

A person who is not a Party to this Agreement has no right to benefit or to enforce any term of this Agreement.

26. Governing

The Agreement shall be governed by and construed and interpreted in accordance with English law and the Parties submit to the exclusive jurisdiction of the English Courts.

Juniper Education Ltd | Company Number: 11992947 | Registered in England and Wales | Registered Office: 1st Floor, Brettenham House, 2-19 Lancaster Place, London, United Kingdom, WC2E 7EN