WHO WE ARE: We are Kapow Primary, a company registered in England and Wales under company number 09640574, having its registered office at Ground Floor, Peninsular House, 30-36 Monument Street, London, EC3R 8NB, United Kingdom (“We”, “us”, “our” and “Kapow”).
You can contact us by telephoning our customer service team at 0203 873 1362or, preferably, by writing to us at firstname.lastname@example.org and by post to Ground Floor, Peninsular House 30-36 Monument Street London, EC3R 8NB United Kingdom. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us in your Order Request.
A. Kapow is a company specialising in the creation, delivery and distribution of high quality online and downloadable classroom resources for primary school teachers. Kapow runs the Kapow Website, an educational platform on which the Teaching Resources and other educational materials and content are made available on a subscription basis to Schools and Individual Teachers (“Service”).
B. You are a teacher and wish to be granted a licence to the Teaching Resources and other educational materials and content made available for Individual Teachers on the Kapow Website.
IT IS AGREED AS FOLLOWS
1.1 In this Agreement, the following terms shall have the following meanings:
“Authorised User” means You, an individual teacher who has subscribed to the Service in order to have access to the Licensed Material (whether on-site or off-site) via Secure Authentication.
“Commercial Use” means use for the purpose of monetary reward (whether by or for You, the Authorised User) by means of the sale, resale, loan, transfer, hire or other form of exploitation of the Licensed Material.
“Educational Purposes” means use for the purpose of education, teaching, distance learning, private study and/or research.
“Intellectual Property Rights” means any patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing-off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Kapow Website” means the website based at www.kapowprimary.com which url may be changed by Kapow from time to time.
“Licence Commencement Date” means the date You have access to the Licensed Material under this Agreement, unless otherwise stated in the Order Request.
“Licensed Material” means the materials licensed in this Agreement and included in the Service being the Teaching Resources and any other educational materials and content made available on the Kapow Website for Individual Teachers on a subscription basis, including sometimes a limited free subscription basis, to You, the Authorised User.
“Material Breach” means a breach that substantially deprives the non-breaching party of the principal benefit of this Agreement or that causes the non-breaching party to suffer irreparable or significant harm, such as but not limited to: non-payment of fees, a breach of the restrictions listed in Clause 4 or Intellectual Property Rights listed in Clause 9.
“Membership” means the annual licence to the Licensed Material which You subscribe for on the Order Request.
“Modifications” means alterations, additions to, deletions from, manipulations and/or modifications of parts of the metadata supplied by Kapow in accordance with section 21 of the United Kingdom’s Copyright, Designs and Patents Act 1988.
“Order Request” means the page on the Kapow Website or provided directly by Kapow through which You place a request for an annual subscription or free trial to the Licensed Material as described in more detail in Clause 2.
“Secure Authentication” means using either a secure intranet or the public internet which is under the protection of a password or other security mechanism providing access limited to You, the Authorised User.
“Secure Network” means a network which is only accessible to the Authorised User by Secure Authentication.
“Subscription Fee” means the fee for the Subscription as stated on the Order Request and paid to Kapow.
“Teaching Resources” means resources based around a core product of hundreds of lesson packs across a range of subjects taught in the UK primary curriculum. Each lesson pack typically includes a lesson plan, an instructional video and classroom resources (worksheets, presentations etc), in addition to curriculum overviews and required resource lists for each of the subjects. The Teaching Resources are provided in a range of formats and certain resources are downloadable and editable. Additional types of Teaching Resources will be added from time to time to the Kapow Website which are only available to school subscribers.
2. LICENCE GRANT
2.1 You will fill out the Order Request on the Kapow Website to receive access to the Licensed Material.
2.2 On acceptance of your Order Request, Kapow grants to You, as an Authorised User subject to and in accordance with the terms of the Order Request and this Agreement, a non-exclusive non-transferable, limited Membership to access and use the Licensed Material on the Kapow Website via Secure Authentication and for Educational Purposes only. If we are unable to accept Your Order Request, we will inform You of this and will not charge You a Subscription Fee.
- PERMITTED USES
3.1 This Agreement permits You, for Educational Purposes only, and ensuring that at all times each item of the Licensed Materials shall carry appropriate acknowledgement of the source and copyright owner, to:
(a) display, download and print those parts of the Licensed Material which are made available as downloadable files on the Kapow Website, including as PDF, Word, Powerpoint and JPEG files (for the avoidance of doubt this excludes any audio-visual material) at the request of You, the Authorised User;
(b) make and distribute copies of Teaching Resources (excluding any audio-visual material) to Your pupils as may be required for the purpose of using the Licensed Material in accordance with this Agreement;
(c) allow You, for Educational Purposes only to:
(i) access the Licensed Material by Secure Authentication in order to search, retrieve, display and view the Licensed Material as permitted on the Kapow Website;
(ii) electronically save those parts of the Licensed Material which are made available on the Kapow Website as downloadable files; and
(iii) print out copies of those parts of the Licensed Material which are made available on Kapow’s Website as downloadable documents.
4.1 Except where this Agreement states otherwise You, the Authorised User, may not:
(a) sell or resell the Licensed Material and/or any Modifications;
(b) remove, obscure or alter copyright notices, acknowledgments or other means of identification or disclaimers;
(c) cut, disaggregate (including taking any images out of context), alter, modify or add to any of the Licensed Material , except for Educational Purposes to make the Licensed Material applicable to the class You are teaching. For the avoidance of doubt, no alteration of the words or the order of the audio-visual material is allowed;
(d) display or distribute any part of the Licensed Material on any electronic network, including the internet other than by a Secure Network;
(e) use all or any part of the Licensed Material for any Commercial Use or for any purpose other than Educational Purposes; or
(f)provide access to and/or allow use of, the Licensed Material by anyone other than You.
4.2 This Clause will continue to apply after termination of this Agreement for any reason and any breach of this Clause 4.1 will be a Material Breach for the purposes of Clause 8.2.
- RESPONSIBILITIES OF KAPOW
5.1 Kapow agrees to use reasonable endeavours to:
(a) make the Licensed Material available to You, following acceptance of this Agreement by both parties and continued availability of the Licensed Material will be dependent upon You paying the Subscription Fee in cleared funds by the date requested of You;
(b) make the Licensed Material available to You 24 hours a day (except when routine maintenance is carried out), and to restore access to the Licensed Material as soon as possible after any interruption or suspension of the Service;
(c) provide customer support services relating to the Service to You by e-mail or over the phone during normal working hours in the United Kingdom. Customer support on phone is from 9.00 am to 5.00 pm on business days UK time. Kapow will respond to all customer enquiries via email within 48 hours;
(d) provide such electronic product documentation (for example: user guides and promotional materials) to You free of charge as Kapow shall have available. Kapow will allow copies of all such documentation to be made and distributed by You provided it is either duplicated in full, or a proper ownership acknowledgement is included.
- RESPONSIBILITIES OF THE AUTHORISED USER
6.1 You, as the Authorised User, agree to:
(a)keep Your password or other secure access information to Yourself and use all reasonable efforts to ensure that You do not give Your password or other Secure Authentication information to anyone else including any other colleagues at your school as to do so would be a Material Breach of this Agreement;
(b)use all reasonable efforts to ensure that no third party is permitted access to the Licensed Material;
(c)use all reasonable efforts to be aware of and undertake to abide by the terms of this Agreement; and
(d)work with Kapow to monitor compliance with the terms of this Agreement and notify Kapow immediately and provide full particulars on becoming aware of any of the following:
(i)any unauthorised access to or use of the Licensed Material or unauthorised use of Your password; or
(ii)any breach by You of the terms of this Agreement.
(iii) As soon as You are aware of any breach of the terms of this Agreement, You further agree promptly to fully investigate and initiate procedures in accordance with the Your standard practice and use all reasonable efforts to ensure that such activity ceases and to prevent any recurrence.
6.2 You undertake to Kapow that the computer system through which the Kapow Website and therefore the Licensed Material will be used is configured, and procedures are in place, to prohibit access to the Licensed Material by any person other than You, and that during the term of this Agreement, You will make best efforts to prevent access by any third party.
6.3 You will be liable to Kapow for any damages arising from any breach by You of this Clause 6.
- LICENCE FEE
7.1 You will, within 30 days of receipt of Kapow’s acceptance of Your signed Order Request, pay the applicable Subscription Fee to Kapow for the rights granted to the Licensed Material for the agreed amount.
7.2 Payments to Kapow shall be made online through the Kapow Website
- TERM AND TERMINATION
8.1 This Agreement will be effective from the date You receive Kapow’s acceptance of Your signed Order Request and the term of this Agreement will be for the term specified in the Order Request and will remain in full force and effect for the duration of that term, unless terminated earlier or extended as provided for in this Clause 8.
8.2 Either Kapow or You, the Authorised User, may terminate this Agreement at any time for a Material Breach by serving a written notice on the other identifying the nature of the breach. The termination will become effective thirty (30) days after receipt of the written notice unless during the relevant period of thirty (30) days the defaulting party remedies the breach forthwith and confirms this by written notice to the other party who shall, acting reasonably and without unnecessary delay, confirm the breach has been satisfactorily remedied.
8.3 Upon termination of this Agreement by Kapow due to a Material Breach, Kapow shall have the right to immediately cease to authorise online access to the Licensed Material by You and You shall immediately pay any Subscription Fees owing to Kapow, but in the event that Subscription Fees have been paid in advance, You shall not be entitled to any refund of such Subscription Fees. You shall not use any of the copies made of the Licensed Material after the date of termination and You shall be responsible for destroying all such copies of the Licensed Material and, if so requested by Kapow, shall send a certificate confirming the destruction to Kapow.
8.4 Upon termination of this Agreement by You due to a Material Breach by Kapow under Clause 8.4, You shall (i) have the right to a pro-rata refund of 50% of the Subscription Fee for any term of the licence remaining (for example: if the termination occurs at 6 months into the 12 month term, there will be 50% of the term remaining and You will be reimbursed 25% of the Subscription Fee) and (ii) cease to authorise online access to the Licensed Material by You .
8.5 HOW TO END THE CONTRACT IF YOU HAVE CHANGED YOUR MIND
(a) Tell us you want to end the contract. You as a consumer have the right to end the Agreement with us within 14 days of the Licence Commencement Date. If you wish to do so, please let us know by doing one of the following:
(i)Phone or email. Call us on 0203 873 1362or email us at email@example.com . Please provide your name, address, date of the Order Request and, where available, your phone number and email address.
(ii) By post. Write to us at Ground Floor, Peninsular House, 30-36 Monument Street, London, EC3R 8NB United Kingdom, including details of what you bought, when you ordered or received it and your name and address.
How we will refund you. We will refund You the Subscription Fee You have paid by the method You used for payment. However, we may make deductions from the Subscription Fee, to reflect any usage of the Kapow Teaching Resources You may have made from the Licence Commencement Date to the date when you told us you had changed your mind. The amount will be in proportion to the number of days from the Licence Commencement Date, in comparison with the full term of the Agreement. The maximum refund will be the Subscription Fee.
Your refund will be made within 14 days of your telling us you have changed your mind
- ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
9.1 You, the Authorised User acknowledge and agree that all Intellectual Property Rights in the Licensed Material are either the sole and exclusive property of Kapow or are duly licensed to Kapow and that this Agreement does not assign or transfer to You any right, title or interest except for the right to access and use the Licensed Material for Educational Purposes in accordance with the terms and conditions of this Agreement.
9.2 You, the Authorised User acknowledge and agree that Kapow may suspend access to the Licensed Material with notice in the event of any breach or suspected breach of this Agreement by You (including any suspected or actual infringement of Kapow’s Intellectual Property Rights) until such time as any issue has been determined and resolved.
9.3 You, the Authorised User acknowledge and agree that Kapow shall have the right to alter, replace or remove any part of the Licensed Material, in the event that such part of the Licensed Material might involve any rights clearance issues. Kapow shall be entitled to remove such content at short notice and any replacement materials shall then be deemed to form part of the Licensed Material.
- DATA PROTECTION
10.1 Kapow will collect and process information relating to You in accordance with the privacy notice on the Kapow website.
10.2 For the purposes of this Clause, Data Protection Legislation includes the UK Data Protection Act 2018 and, for so long as and to the extent that the law of the European Union has legal effect in the UK, the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to the processing of personal data, including the privacy and security of personal data, as amended or updated from time to time, in the UK, as well as any successor legislation to the GDPR and Data Protection Act 2018 .
10.3 The schedule to this Agreement sets out the scope, nature and purpose of the processing by Kapow, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation (Personal Data)) and categories of data subject.
10.4 Kapow shall, in relation to any Personal Data processed:
(a) process that Personal Data only as required for the purposes of this Agreement;
(b) keep the Personal Data confidential;
(c) comply with Your reasonable instructions with respect to processing Personal Data and with Kapow’s Data protection policy and data retention guidelines;
(d) not transfer any Personal Data outside of the European Economic Area without Your prior written consent;
(e) assist You in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
(f) notify You without undue delay on becoming aware of a Personal Data breach or communication which relates to Kapow’s compliance with the Data Protection Legislation;
(g) at Your written request, delete or return Personal Data and any copies thereof to You on termination of this Agreement unless required by the Data Protection Legislation to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate compliance with this Clause 10 and allow for audits by You or Your ‘s designated auditor.
- REPRESENTATION and WARRANTIES
11.1 Kapow warrants to You to the best of its knowledge that the Licensed Material and all Intellectual Property Rights therein are owned by or licensed to Kapow and that the Licensed Material used as contemplated in this Agreement does not infringe any third-party Intellectual Property Rights, subject to Clauses 9.2 and 9.3.
11.2 While Kapow has no reason to believe that there are any inaccuracies or defects in the information contained in the Licensed Material, Kapow makes no representation and gives no warranty express or implied with regard to the information contained in or any part of the Licensed Material including (without limitation) the fitness of such information or part for any purposes whatsoever and Kapow accepts no liability for loss suffered or incurred by You as a result of Your reliance on the Licensed Material.
11.3 In no circumstances will Kapow be liable to You for any loss resulting from a cause over which Kapow does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorised access, theft, or operator errors.
11.4 You agree to notify Kapow immediately and provide full particulars in the event that it becomes aware of any actual or threatened claims by any third party in connection with any works contained in the Licensed Material and do all things reasonably required to assist Kapow in such claims. It is expressly agreed that upon such notification, or if Kapow becomes aware of such a claim from other sources, Kapow may remove such work(s) from the Licensed Material. Failure to report knowledge of any actual or threatened claim by any third party shall be deemed a Material Breach of this Agreement.
11.5 Except as provided for in Clause 6.3 or Clause 11.1, neither You nor Kapow will be liable to the other in contract or negligence or otherwise for:
11.5.1 any special, indirect, incidental, punitive or consequential damages;
11.5.2 loss of direct or indirect profits, business, contracts, revenue or anticipated savings; or
11.5.3 for any increased costs or expenses.
11.6 No party limits its liability for:
11.6.1 death or personal injury to the extent it results from its negligence, or of its employees or agents in the course of their engagement; and
11.6.2 its own fraud or that of its employees or agents in the course of their engagement.
- FORCE MAJEURE
12.1 Either party’s failure to perform any term or condition of this Agreement as a result of circumstances beyond the control of the relevant party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities (“Force Majeure”) shall not be deemed to be, or to give rise to, a breach of this Agreement.
12.2 If either party to this Agreement is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure and if such party gives written notice thereof to the other party specifying the matters constituting Force Majeure together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then the party in question shall be excused the performance or the punctual performance as the case may be as from the date of such notice for so long as such cause of prevention or delay shall continue.
13.1 Except as permitted under this Agreement, neither this Agreement nor any of the rights and obligations under it may be assigned by You without obtaining the prior written consent of Kapow, such consent shall not unreasonably be withheld or delayed. In any permitted assignment by You, You shall procure and ensure that the assignee shall assume all Your rights and obligations under this Agreement and agrees to be bound to all the terms of this Agreement.
13.2 This Agreement and any of the rights and obligations under it may be assigned by Kapow without obtaining consent from You.
- GOVERNING LAW AND DISPUTE RESOLUTION
14.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
14.2 Any disagreement about the operation of this Agreement shall be settled by the matter being promptly referred to a senior executive from each of the parties, authorised to agree a solution. The senior executives shall have 30 days from the raising of the disagreement to discuss and resolve the matter. If the senior executives cannot resolve the matter it shall be referred for resolution to an arbitrator from the London Court of International Arbitration agreed by the parties. The expert shall act as an amicable mediator and each of the parties shall in good faith co-operate with his reasonable requests. If the expert is unable to mediate a resolution within 60 days of his appointment, either of the parties may resort to formal legal action.
15.1 All notices required to be given under this Agreement shall be given in writing in English and sent by courier, email or special delivery to the relevant addressee at its address set out below, or to such other address as may be notified from time to time under this Agreement, and all such notices shall be deemed to have been received three (3) days after the date of posting in the case of special delivery or dispatch in the case of courier:
if to You, the Authorised User
the address notified by You on the Order Request;
if to Kapow:
Ground Floor, Peninsular House,
30-36 Monument Street,
London, EC3R 8NB
Attention: Elizabeth Woodman
16.1 This Agreement and the Order Request constitute the entire agreement between the parties relating to the Licensed Material and supersede all prior communications, understandings and agreements (whether written or oral) relating to its subject matter and may not be amended or modified except by agreement of both parties in writing.
16.2 The provisions of this Agreement are separable and, if any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.
16.3 The rights of the parties arising under this Agreement shall not be waived except in writing. Any waiver of any of a party’s rights under this Agreement or of any breach of this Agreement by the other party shall not be construed as a waiver of any other rights or of any other or further breach. Failure by either party to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.