TERMS AND CONDITIONS
KAPOW PRIMARY.COM AND KAPOW PRIMARY LIMITED: TERMS AND CONDITIONS OF USE BY INDIVIDUAL TEACHERS
You can print off these Terms, or store them in your computer, for future reference. These Terms may be updated by us from time to time without notice to you. You should review the Kapow Primary website periodically for changes to these Terms, your continued use of the Service after any such changes constitutes your acceptance of the new Terms. The latest version of these Terms will apply at the time that any issue is raised under these Terms.
1.1 In these Terms:
‘Contract’ means the contract for the provision of the Service to you on the basis of these Terms;
‘Kapow Primary’ means Kapow Primary Limited;
“Licensed Material” means the materials licensed in this Contract and included in the Service known as Kapow Primary being the Teaching Resources and any other educational materials and content made available on Kapow Primary’s Website on a subscription basis;
‘Site’ means Kapow Primary’s website at www.kapowprimary.com, or any other site used by Kapow Primary for the provision of the Service;
‘Standard Charge’ means Kapow Primary’s standard charges for supply of the Service, as set out on the Site or as varied from time to time;
‘Territory’ means the world and the universe;
‘User’, ‘you’ or ‘your’ means the person who has registered on the Site and for whom Kapow Primary has agreed to provide the Service for their personal professional use in accordance with these Terms and specifically excludes Schools and commercial entities.
- INFORMATION ABOUT KAPOW PRIMARY
- Kapow is a company specialising in the creation, delivery and distribution of high quality online and downloadable classroom resources for primary school teachers and schools. The resources are 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 (“Teaching Resources”). The Teaching Resources are provided in a range of formats and certain resources are downloadable and editable. Kapow runs an educational website www.kapowprimary.com on which the Teaching Resources and other educational materials and content are made available on a subscription basis to Schools and Individual Teachers (“Service”).
- You wish to be granted a licence to the Teaching Resources and other educational materials and content made available on Kapow.
IT IS AGREED AS FOLLOWS
1.1 In this Contract, the following terms shall have the following meanings:
“You” are an individual who is authorised by this agreement 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 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 Contract, unless otherwise stated in the Order Form.
“Licensed Material” means the materials licensed in this Contract and included in the service known as Kapow being the Teaching Resources and any other educational materials and content made available on Kapow’s Website to you on a subscription basis as an Individual Teacher.
“Material Breach” means a breach that substantially deprives the non-breaching party of the principal benefit of this Contract 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.
“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 Form” means the form on the Kapow Website or provided directly by Kapow through which You place a request for an annual subscription to the Licensed Material as described in more detail in Clause 2.
“Secure Authentication” means using either a secure intranet or the public internet under the protection of a password or other security mechanism providing access limited to Authorised Users.
“Secure Network” means a network which is only accessible to You by Secure Authentication.
“Subscription” means the annual licence to the Licensed Material which You for on the Order Form.
“Subscription Fee” means the fee for the Licence as stated on the Order Form and paid to Kapow.
“Teaching Resources” means those resources listed in Background A above.
- LICENSE GRANT
2.1 You will complete the Order Form to receive access to the Kapow Licensed Material. You fill out the Order Form online, or if you contact Kapow, Kapow will complete the Order Form on your behalf.
2.2 On acceptance of the Order Form, Kapow grants to You, subject to and in accordance with the terms of the Order Form and this Contract, a non-exclusive non-transferable, limited Subscription to access and use the Licensed Material on the Kapow Website via Secure Authentication and for Educational Purposes.
- PERMITTED USES
3.1 This Contract permits You, for Educational Purposes only, and ensuring that at all times each item shall carry appropriate acknowledgement of the source and copyright owner, to:
3.1.1 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 Authorised Users;
3.1.2 make and distribute copies of Teaching Resources to your Pupils as may be required for the purpose of using the Licensed Material in accordance with this Contract;
3.1.3 For Educational Purposes only to:
(a) access the Licensed Material by Secure Authentication in order to search, retrieve, display and view the Licensed Material as permitted on the Kapow Website;
(b) electronically save those parts of the Licensed Material which are made available on the Kapow Website as downloadable files;
(c) 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 Contract states otherwise, You may not (and any breach of this clause 4.1 will be a Material Breach for the purposes of clause 8.2) :
4.1.1 sell or resell the Licensed Material and/or Modifications;
4.1.2 remove, obscure or alter copyright notices, acknowledgments or other means of identification or disclaimers;
4.1.3 cut, disaggregate (including taking any images out of context), alter, modify or add to any of the Licensed Material, except to the extent necessary to make it perceptible on a computer screen, or as otherwise allowed under this Contract 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 audio visual material is allowed;
4.1.4 display or distribute any part of the Licensed Material on any electronic network, including the internet other than by a Secure Network;
4.1.5 use all or any part of the Licensed Material for any Commercial Use or for any purpose other than Educational Purposes; or
4.1.6 provide access to and/or allow use of, the Licensed Material by anyone else.
4.2 This Clause will continue to apply after termination of this Contract for any reason.
- RESPONSIBILITIES OF KAPOW
5.1 Kapow agrees to use reasonable endeavours to:
5.1.1 make the Licensed Material available to You following acceptance of this Contract by both parties and continued availability of the Licensed Material will be dependent upon You paying the Subscription Fee in cleared funds;
5.1.2 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 Kapow service;
5.1.3 provide customer support services relating to the Kapow 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;
5.1.4 provide such electronic product documentation (for example: user guides and promotional materials) to You free of charge as Kapow shall have available.
- YOUR RESPONSIBILITIES
6.1 You agree to:
6.1.1 keep your password or other secure access information securely and privately and use all reasonable efforts to ensure that You do not give their passwords or other Secure Authentication information to anyone else;
6.1.2 use all reasonable efforts to ensure that only You access the Licensed Material;
6.1.3 use all reasonable efforts to ensure that You abide by the terms of this Contract; and
6.1.4 use all reasonable efforts to work with Kapow to monitor compliance with the terms of this Contract and notify Kapow immediately and provide full particulars on becoming aware of any of the following:
(a) any unauthorised access to or use of the Licensed Material or unauthorised use of any of your password(s); or
(b) any breach by You of the terms of this Contract.
As soon as you are aware of any breach of the terms of this Contract you further agree promptly to 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 Contract, You will make best efforts to bar non-permitted access.
6.3 You shall be liable to Kapow for any damages arising from any breach by You of this Clause 6.
- LICENCE FEE
7.1 You shall pay the Licence Fee via the Individual Teacher payment page on www.kapowprimary.com.
- TERM AND TERMINATION
8.1 This Contract will be effective from the date You complete the Order Form and pay the licence fee. The term of this Contract will be for the term specified in the Order Form (the “Initial Term”) 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 may terminate this Contract 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 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 Contract by Kapow due to a Material Breach, Kapow shall have the right to immediately cease to authorise your online access to the Licensed Material and You shall not be entitled to any refund of such Licence 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, confirm the destruction to Kapow.
8.4 Upon termination of this Contract by You due to a Material Breach by Kapow under Clause 8.4, You (i) shall have the right to a pro-rata refund of 50% of the Licence 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 Licence Fee) and (ii) You shall cease to access the Licensed Material.
- ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
9.1 You 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 Contract does not assign or transfer to You any right, title or interest except for the right to access and use the Licensed Material in accordance with the terms and conditions of this Contract.
9.2 You 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 Contract 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 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 breach Kapow’s agreement with one or more of its partner archives or 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 General Data Protection Regulations (EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, as well as any successor legislation to the GDPR and Data Protection Act 1998.
10.3 The schedule to this Contract 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 Contract;
(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) respond to any data subject access request and to ensure compliance with Kapow’s 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, delete or return Personal Data and any copies thereof to You on termination of this Contract 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.
- 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 Contract 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 their 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 agrees to notify Kapow immediately and provide full particulars in the event that you become 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 Contract.
11.5 Except as provided for in Clause 6.3 or Clause 10.1, 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 Contract 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 Contract.
12.2 If either party to this Contract is prevented or delayed in the performance of any of its obligations under this Contract 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.
9.1 Except as permitted under this Contract, neither this Contract 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 rights and obligations of You under this Contract and agree to be bound to all the terms of this Contract.
9.2 This Contract 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 Contract 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 Contract or its subject matter or formation (including non-contractual disputes or claims).
14.2 Any disagreement about the operation of this Contract 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 Contract 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 Contract, 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 the You:
the e-mail address notified by You
if to Kapow:
Kapow Primary Limited,
Ground Floor, Peninsular House,
30-36 Monument Street,
London, EC3R 8NB
Attention: Elizabeth Wooodman
16.1 This Contract and the Order Form 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 Contract are separable and, if any provision or part-provision of this Contract 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 Contract.
16.3 The rights of the parties arising under this Contract shall not be waived except in writing. Any waiver of any of a party’s rights under this Contract or of any breach of this Contract 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 Contract 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.
2.1 www.kapowprimary.com is a site operated by Kapow Primary.Com Limited. Kapow Primary is registered in England and Wales under company number 09640574. Kapow Primary’s registered office is at Peninsular House, 36 Monument Street, London EC3R 8NB.
- INTELLECTUAL PROPERTY RIGHTS
3.1 You acknowledge that Kapow Primary is the owner or the licensee of all intellectual property rights in the Site and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
3.2 You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on any intellectual property rights on the Site, in any manner, and you shall not exploit the said intellectual property rights in any unauthorised way whatsoever. You acknowledge that no intellectual property rights are intended to, nor shall they be deemed to, transfer to any person who accesses the Site, in any way, including (but not limited to) by assignment, implied assignment, licence or implied licence, either by application of these Terms or use of the Site in any other way, whether authorised or not by these Terms.
3.3 You agree that your usage of the Service is for personal professional use only and that you will not share, or attempt to share, your log in details with any other person. Subscriptions for Schools are available to purchase on www.kapowprimary.com.
3.4 Kapow Primary may at its own discretion and without giving notice alter, remove or suspend any part of the Site and any Content of the Site. In no event will Kapow Primary be liable for any loss or damage arising as a result of modifications made to the Site.
- REGISTRATION PROCESS
4.1 To access the Licensed Material, You must first complete the registration process on www.kapowprimary.com. If you register with on behalf of another individual, you must ensure that the other person is aware of and agrees to these Terms, and you warrant that you have done so and are authorised to bind that other person. If you attempt to register with on Kapow Primary, or on behalf of a school you will be in breach of these Terms and Kapow Primary can terminate your access to the Service immediately and without notice under clause 17.2.
4.2 In order to access Licensed Material, you will be required to enter the username and password you selected during the registration process on www.kapowprimary.com.
4.3 You are responsible for the security and proper use of your password and must take all necessary steps to ensure that your password is kept confidential, and is used properly and not disclosed to unauthorised people. You will be responsible for all activities and orders under your password. You must inform Kapow Primary immediately if you have any reason to believe that your password has become known to someone not authorised to use it or if any passwords are being or likely to be used in an unauthorised way. Kapow Primary will not be liable if passwords are disclosed or used improperly.
4.4 Kapow Primary has the right to disable any password at any time if in Kapow Primary’s opinion you have failed to comply with any of the provisions of these Terms.
4.5 If you forget any password, you will be given a new password once you contact Kapow Primary and satisfy the security checks which Kapow Primary operates.
4.6 You confirm that all the information supplied by you during the registration process is true, complete and accurate in all respects. You agree to notify Kapow Primary immediately of any changes to your registration information. If Kapow Primary believes that you have provided false information or that you have intentionally failed to notify Kapow Primary of any changes to this information, Kapow Primary reserves the right to terminate your access to the Service immediately and without notice under clause 17.2 or to suspend your access until such time as we verify the information you have provided to us..
- THE SERVICE & YOUR USE OF THE SITE
5.2 The Service is for your own professional and non-commercial use only and you may not (nor support others to) either (i) use the Service for educational purposes or commercial use or (ii) make any copies of any Licensed Material.
5.3 Except as expressly provided in these Terms no part of www.kapowprimary.com or Services may be copied or reproduced in any manner and you may not use any automatic device or manual process to access, acquire, copy or monitor any portion of www.kapowprimary.com or Services or in any way reproduce or circumvent the navigational structure or presentation of the Site.
5.5 You agree you will not (nor support others to) circumvent or modify any security technology or Software that is part of www.kapowprimary.com.
5.6 You agree that you will not use the Service in any manner that could damage, disable, impair or overburden www.kapowprimary.com and will not attempt to gain unauthorised access to any part of the website through hacking, password mining or any other means.
5.7 You will be responsible for any losses and costs resulting from your breach of these Terms.
5.8 If you choose to access the website from locations outside the United Kingdom, you do so on your own initiative and are responsible for compliance with local laws.
- CANCELLATION AND REFUND POLICY
6.1 You have the right to cancel this contract at any time. The cancellation period during which we will reimburse you will expire after 14 days from the day of the conclusion of your contract. To exercise the right to cancel, you must inform us of your decision to cancel this contract by entering the registered area of our site and electronically pressing the cancellation button. We will communicate to you an acknowledgement of receipt of such a cancellation by e-mail. If you cancel this contract within 14 days, we will reimburse to you all payments received from you and will remove your details as a registered customer from our Site. [If you requested to begin the performance of services during the 14-day cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated us your cancellation from this contract, in comparison with the full coverage of the contract.] We will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this contract. We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement. If you cancel this contract after 14 days, we will cancel any future payments due from you and will remove your details as a registered customer from our Site at the end of the period for which you have paid.
- LINKS TO THIRD PARTY WEBSITES
7.1 The Site may include links to third party websites that are controlled and maintained by others. Any link is not an endorsement of such websites and you acknowledge and agree that Kapow Primary is not responsible for the content or availability of any such sites.
- SERVICE ACCESS
8.1 While we try to ensure that the Service is normally available 24 hours a day, we cannot be held responsible if for any reason the Service is unavailable at any time or for any period.
8.2 Access to the website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control.
8.3 Although we make all reasonable efforts to ensure that the server that makes the website available is bug and virus free, we cannot provide any guarantee in this respect.
8.4 You are responsible for obtaining Internet access to the website from where you are in order to use the Service. We cannot be held responsible for your failure to access the website or use the Service from any location or browser. Any access fees incurred in reaching the website (e.g. dial up charges) and any equipment necessary to access the Service are your responsibility.
8.4 Owing to the nature of the Internet and the fact that your access to the website involves functionality outside our control, we cannot be held responsible for technical problems that you may experience with the Service.
8.5 We do not guarantee that the Service will be compatible with your computer. While we try to provide the Service using all reasonable care, we cannot be held responsible for any corruption or loss of data held on your computer, or any damage caused to your computer resulting from your use of the Service.
- DISCLAIMERS AND LIMITATION OF LIABILITY
9.1 Use of the Service is at your own risk. Kapow Primary does not promise that the website, Licensed Materials, Service or feature of the website will be uninterrupted or error-free, or that any defects will be corrected. The website, Content and Service are provided on an “as-is” and “available” basis without any warranty of any kind whether express or implied.
9.2 Kapow Primary cannot ensure that any files or other data you stream from the website will be free of viruses or anything else that may be destructive.
9.3 Kapow Primary disclaims any and all liability for the acts, omissions and conduct of any third parties in connection with or related to your use of the website and you assume total responsibility for your use of the websikte and any linked sites.
9.4 To the extent permitted by law Kapow Primary and third parties connected to Kapow Primary hereby expressly exclude:
9.4.1 all conditions, warranties (express or implied) and other terms which might otherwise be implied by statute, common law or the law of equity; and
9.4.2 any liability for any direct, indirect or consequential loss or damage incurred by any user in connection with the website or Services or any websites linked to it and any materials posted on it, including, without limitation any liability for loss of income or revenue; loss of business; loss of profits/savings; loss of data; loss of goodwill; wasted time and for any other loss or damage of any kind however so arising whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
9.5 Notwithstanding the above if Kapow Primary is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Website or any Service, Kapow Primary’s liability shall in no event exceed the total of any fees paid by you with respect to the Service within the six months prior to the date of the initial claim made against Kapow Primary.
9.6 Nothing stated in Clause 9.5 above shall be construed so as to exclude or limit the liability for death or personal injury as a result of the negligence of Kapow Primary nor any other liability which cannot be excluded or limited under applicable law.
9.7 Your sole remedy for dissatisfaction with the website, Licensed Material or Service is to stop using the website or any such Licensed Material.
9.8 Kapow Primary reserves the right, without notice, to do any of the following at any time:
9.8.1 to modify, interrupt, suspend or terminate operation of or access to the website, or any portion of the Site; and
9.8.2 to modify or change the website, and any policies or terms.
14.1 You agree to indemnify and hold Kapow Primary, harmless from and against any breach by you of these Terms and any claim or demand brought against Kapow Primary by any third party arising out of your use of the Service including without limitation any demands, loss, liability, claims or expenses (including legal costs and expenses), howsoever suffered or incurred by Kapow Primary due to or arising out of or in connection with your use of the website.
16.1 Kapow Primary may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site. Kapow Primary reserves the right to disclose any information that Kapow Primary deems necessary to comply with any applicable law, regulation, legal process or governmental request. Kapow Primary may also disclose your information when Kapow Primary determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.
17.1 Kapow Primary has the right to terminate your access to any or all of the Services at any time, without notice, for any reason, including without limitation, breach of these Terms. Kapow Primary may also, at its sole discretion, discontinue the Services or any part thereof without prior notice and you agree that Kapow Primary shall not be liable to you or any third party for any termination of your access to the Service.
16.2 Kapow Primary has the right to terminate your access to any or all of the Services at any time, without notice, if Kapow Primary has reason to believe that you are not using the Services as an Individual Teacher but are using it as a School in breach of these terms. Kapow Primary will obtain details of the number and location of users and timing of usage of its Service and can deduce from these details whether it is School use or Individual Teacher use, and you will need to prove to Kapow Primary that their deductions are wrong to prevent such a termination.
18.1 If any of these Terms should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such Term or Condition shall be severed and the remaining Terms shall survive and remain in full force and effect and continue to be binding and enforceable.
- GOVERNING LAW
19.1 The use of this Service and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed according to the laws of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction.