SHERSTON SOFTWARE LIMITED, a company registered in England and Wales under company number 09640574, having its registered office at 4th Floor, 35 New Bridge Street, London, EC4V 6BW, United Kingdom (“Kapow”).
A. Kapow is a company specializing in the creation, delivery and distribution of high quality online and downloadable classroom resources for primary school teachers. The resources are based around a core product of hundreds of lesson packages across a range of subjects taught in the UK primary curriculum. Each lesson package typically include 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 both 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 educational institutions.
B. The Institution wishes 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 Agreement, the following terms shall have the following meanings:
“Authorised User” means an individual who is authorised by the Institution to have access to the Licensed Material (whether on-site or off-site) via Secure Authentication and who is a member of staff of the Institution (whether permanent or temporary).
“Commercial Use” means use for the purpose of monetary reward (whether by or for the Institution or an 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 the Institution has access to the Licensed Material under this Agreement, unless otherwise stated in the Order Form.
“Licensed Material” means the materials licensed in this Agreement 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 on a subscription basis via the Institution to Authorised Users.
“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.
“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 Institution places 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 Authorised Users by Secure Authentication.
“Subscription” means the annual licence to the Licensed Material which the Institution subscribes 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 Recital A above.
2. LICENSE GRANT
2.1 Institution will fill out the Order Form to receive access to the Kapow Licensed Material. The Order Form can be filled out online by the Institution, or by Kapow whilst on the telephone with an authorised officer of the Institution.
2.2 On acceptance of Institution’s Order Form, Kapow grants to the Institution, subject to and in accordance with the terms of the Order Form and this Agreement, a non-exclusive non-transferable, limited Subscription to access and use the Licensed Material and to allow Authorised Users where applicable to access and use the Licensed Material on the Kapow Website via Secure Authentication and for Educational Purposes.
3. PERMITTED USES
3.1 This Agreement permits the Institution, 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 (excluding any audio visual material) to students of the Institution as may be required for the purpose of using the Licensed Material in accordance with this Agreement;
3.1.3 allow Authorised Users, 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 Agreement states otherwise, the Institution and Authorised Users 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 Agreement to make the Licensed Material applicable to the class they 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 other than Authorised Users.
4.2 This Clause will continue to apply after termination of this Agreement for any reason.
5. RESPONSIBILITIES OF KAPOW
5.1 Kapow agrees to use reasonable endeavours to:
5.1.1 make the Licensed Material available to the Institution and Authorised Users following acceptance of this Agreement by both parties and continued availability of the Licensed Material will be dependent upon Institution paying the Subscription Fee in cleared funds by the date requested of them;
5.1.2 make the Licensed Material available to the Institution and Authorised Users 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 Authorised Users 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 the Institution free of charge as Kapow shall have available. Kapow will allow copies of all such documentation to be made and distributed by the Institution to Authorised Users provided it is either duplicated in full, or a proper ownership acknowledgement is included.
6. RESPONSIBILITIES OF INSTITUTION
6.1 The Institution agrees to:
6.1.1 give passwords or other secure access information only to Authorised Users and use all reasonable efforts to ensure that Authorised Users do not give their passwords or other Secure Authentication information to anyone else;
6.1.2 provide lists of valid IP addresses to Kapow and update those lists regularly as agreed by the parties from time to time;
6.1.3 use all reasonable efforts to ensure that only Authorised Users are permitted access to the Licensed Material;
6.1.4 use all reasonable efforts to ensure that all Authorised Users are made aware of and undertake to abide by the terms of this Agreement; and
6.1.5 use all reasonable efforts to 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:
(a) any unauthorised access to or use of the Licensed Material or unauthorised use of any of Institution’s password(s); or
(b) any breach by itself or an Authorised User of the terms of this Agreement.
As soon as the Institution is aware of any breach of the terms of this Agreement by itself or an Authorised User, the Institution further agrees promptly to fully investigate and initiate procedures in accordance with the Institution’s standard practice and use all reasonable efforts to ensure that such activity ceases and to prevent any recurrence.
6.2 The Institution undertakes 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 an Authorised User, that it shall inform the Authorised Users about the conditions of use of the Licensed Material including using a Secure Authentication process, and that during the term of this Agreement, the Institution will make best efforts to bar non-permitted access and to convey appropriate use information to its Authorised Users.
6.3 The Institution shall be liable to Kapow for any damages arising from any breach by the Institution of this Clause 6.
7. LICENCE FEE
7.1 The Institution will, within 30 days of receipt of Kapow’s acceptance of Institution’s signed Order Form, pay the Subscription Fee to Kapow for the rights granted to the Licensed Material for the agreed amount.
7.2 Payments to Kapow shall be made by wire transfer to:
Royal Bank of Scotland
Sort Code: 16-00-15
Account name: Sherston Software Limited
Account number: 12981794
8. TERM AND TERMINATION
8.1 This Agreement will be effective from the date Institution receives Kapow’s acceptance of Institution’s signed Order Form and the term of this Agreement 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 the Institution 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 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 the Institution and Authorised Users and the Institution shall immediately pay any Subscription Fees owing to Kapow, but in the event that Subscription Fees have been paid in advance, the Institution shall not be entitled to any refund of such Subscription Fees. The Institution and its Authorised Users shall not use any of the copies made of the Licensed Material after the date of termination and the Institution 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 the Institution due to a Material Breach by Kapow under Clause 8.4, the Institution (i) shall 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 the Institution will be reimbursed 25% of the Subscription Fee) and (ii) shall cease to authorise online access to the Licensed Material by the Institution and Authorised Users.
9. ACKNOWLEDGEMENT AND PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
9.1 The Institution acknowledges and agrees 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 the Institution 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 Agreement.
9.2 The Institution acknowledges and agrees that Kapow may suspend access to the Licensed Material with notice in the event of any breach or suspected breach of this Agreement by the Institution or Authorised Users (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 The Institution acknowledges and agrees 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.
10. DATA PROTECTION
10.1 Kapow will collect and process information relating to the Institution and its Authorised Users 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 Regulation (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 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 the Institution‘s 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 the Institution‘s prior written consent;
(e) assist the Institution 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 the Institution 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 the written request of the Institution, delete or return Personal Data and any copies thereof to the Institution 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 the Institution or the Institution‘s designated auditor.
11. REPRESENTATION and WARRANTIES
11.1 Kapow warrants to the Institution 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 the Institution or Authorised Users as a result of their reliance on the Licensed Material.
11.3 In no circumstances will Kapow be liable to the Institution 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 The Institution agrees 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 10.1, neither the Institution 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.
12. 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 the Institution without obtaining the prior written consent of Kapow, such consent shall not unreasonably be withheld or delayed. In any permitted assignment by Institution, the Institution shall procure and ensure that the assignee shall assume all rights and obligations of the Institution 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 the Institution.
14. 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 the Institution:
the address notified by the Institution
if to Kapow:
Sherston Software Limited,
Ground Floor, Peninsular House,
30-36 Monument Street,
London, EC3R 8NB
Attention: Frank Hyman/Michael Allen
16.1 This Agreement 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 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.