SchoolPeers – Master Services Agreement

SCHOOLPEERS TERMS OF USE

BY EXECUTING AN ORDER FORM AND/OR BY USE OF THE SERVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICE AND THE CONTENT (AS DEFINED IN THE DEFINITIONS SECTION AT THE END OF THIS DOCUMENT).IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. TO THE EXTENT THAT THERE IS ANY CONFLICT BETWEEN A PROVISION OF THE TERMS AND CONDITIONS AND OF AN ORDER FORM, THESE PROVISIONS OF THESE TERMS AND CONDITIONS SHALL PREVAIL.

Welcome

As part of the Service, SCHOOLPEERS will provide you with use of the Service, the Content, certain Support Services and other materials supplied by or on behalf of SCHOOLPEERS.

Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the SCHOOLPEERS website incorporated by reference herein, including but not limited to SCHOOLPEERS’s privacy policy.

1. Privacy & Security Disclosure

SCHOOLPEERS’s privacy policy may be viewed at https://schoolpeers.org/privacy-policy/

SCHOOLPEERS reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, must accept the terms of SCHOOLPEERS’s privacy policy and will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from SCHOOLPEERS from time to time. They may opt out of receiving such communications at that time or at any subsequent time. Note that occasionally SCHOOLPEERS may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that SCHOOLPEERS can disclose the fact that you are a paying customer and the edition of the Service that you are using. SCHOOLPEERS may monitor, record and store your and your User use of and access to the Service, in compliance with its privacy policy to determine the Service is being used in accordance with the terms of this Agreement.

2. Service & Restrictions

SCHOOLPEERS hereby grants you a non-exclusive, non-transferable, right to use the Service during the Term, solely for your own internal normal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by SCHOOLPEERS and its licensors.

You may not access and use the Service if you are a direct competitor of SCHOOLPEERS, except with SCHOOLPEERS’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, the SCHOOLPEERS Technology or the Content in any way or allow the Service, SCHOOLPEERS Technology or the Content to become the subject of any charge, lien or encumbrance; (ii) modify or make derivative works based upon the Service, the SCHOOLPEERS Technology or the Content; (iii) reverse engineer or access the Service or SCHOOLPEERS Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or SCHOOLPEERS Technology, or (c) copy any ideas, features, functions or graphics of the Service or SCHOOLPEERS Technology.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates third party rights (including rights of privacy, property or publicity); (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) allow the Service to be used by users that are employed outside the country of the Billing Address.

You may view, download, reference and print any materials generated or posted by or on behalf of SCHOOLPEERS within the Service provided that you may not, without the prior written consent of SCHOOLPEERS: (i) modify and/or alter such materials in any way; (ii) distribute such materials to any third party; and (iii) remove any copyright, trademark or other proprietary notices contained in such materials.

The Service is available only to your Users. You may have the maximum number of Users set out in the Order Form. Additional Users will attract additional fees. SCHOOLPEERS may in its absolute discretion accept or reject applications for User registrations. A User registration cannot be shared or used by more than one individual User.

SCHOOLPEERS may, in its sole discretion, issue New Releases and New Modules (for which additional fees may be payable) and may discontinue or suspend the ability to use features or functions of the Service, for the repair, improvement, and/or upgrade of the underlying technology used for the provision of the Service or for any other justifiable reason. SCHOOLPEERS may, in its sole discretion, update your version of the Service. SCHOOLPEERS shall not be liable for any loss you suffer caused directly or indirectly by such New Releases or New Modules and/or the absence of New Releases and New Modules.

3. Your Responsibilities

You have sole responsibility and liability for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including without limitation those related to data privacy, international communications and the transmission of technical or personal data. You acknowledge and agree that SCHOOLPEERS is not responsible in any way for your use of the Service or for any activity occurring under your User accounts. You accept full responsibility for the selection of the Service to achieve its intended results. You shall: (i) notify SCHOOLPEERS immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SCHOOLPEERS immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users to be in breach of the terms of this Agreement; (iii) not impersonate another SCHOOLPEERS user or provide false identity information to gain access to or use the Service; and (iv) notify SCHOOLPEERS immediately of any breach of this Agreement or infringement of third party rights in connection with this Agreement immediately upon becoming aware of such breach and/or infringement.

4. Third Party Interactions

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. SCHOOLPEERS and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. SCHOOLPEERS does not endorse any sites on the Internet that are linked through the Service. SCHOOLPEERS provides these links to you only as a matter of convenience, and in no event shall SCHOOLPEERS or its licensors be responsible for any content, products, or other materials on or available from such sites. SCHOOLPEERS provides the Service to you pursuant to the terms and conditions of this Agreement. You recognise, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

As part of the Content available through the Service, SCHOOLPEERS may provide or make available for use templates, forms, regulatory compliance content or other documents which you may elect, at your discretion, to use as part of the Service for your business purposes. You take full responsibility for your use of such Content, including ensuring that any templates, forms, regulatory compliance content or other documents you use are fit for the purposes for which you are using them and comply with all applicable laws and regulations. SCHOOLPEERS shall have no liability, obligation or responsibility for any such Content, including for its accuracy, completeness, legal compliance or suitability for your business purposes or otherwise.

5. Intellectual Property

SCHOOLPEERS alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the SCHOOLPEERS Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the SCHOOLPEERS Technology or the Intellectual Property Rights owned by SCHOOLPEERS (or its licensors, where applicable). The SCHOOLPEERS name, logo, and the product names associated with the Service are trademarks of SCHOOLPEERS, its licensors or third parties, and no right or license is granted to use them.

6. Fees and Payment

You shall pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. The initial fees and charges will be as set out in your Order Form.

SCHOOLPEERS reserves the right to modify its fees and charges and to introduce new charges at any time provided written noticed is given, which notice may be provided by e-mail, including by email with the invoice containing the modified fees and charges attached. All pricing terms are confidential, and you agree not to disclose them to any third party.

7. Billing and Annual Subscription Fees

SCHOOLPEERS charges and collects in advance for use of the Service, via Credit Card or Direct Debit. SCHOOLPEERS will charge you for the Subscription Fee/s annually in advance, on the Effective Date and thereafter on each anniversary of the Effective Date, or as otherwise mutually agreed upon. The Subscription Fee will continue to be invoiced, and on the annual anniversary of the Effective Date, may include a percentage increase in such fees, however the percentage increase shall not exceed 20% of the fees in the immediately prior period, and shall be effective immediately and thereafter. Fees for other services (such as, without limitation, training, and implementation costs) will be charged on an as-quoted basis (which may or may not be set out in the Order Form). SCHOOLPEERS’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to provide SCHOOLPEERS with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorised billing contact and Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, SCHOOLPEERS reserves the right to terminate your access to the Service in addition to any other legal remedies. Unless SCHOOLPEERS in its discretion determines otherwise: (i) entities with headquarters and a majority of Users resident in the United Kingdom will be billed in UK pounds sterling and subject to UK payment terms and pricing schemes (“UK Customers”); (ii) entities with headquarters and a majority of Users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes (“U.S. Customers”); (iii) entities with headquarters and a majority of Users resident in Australia will be billed in Australian dollars and subject to Australian payment terms and pricing schemes (“Australian Customers”); and (iv) all other entities will be billed in UK pound sterling, U.S. dollars, Euros or local currency and be subject to either UK or non-UK payment terms and pricing schemes at the discretion of SCHOOLPEERS (“Non-UK / U.S. / Australian Customers”). If you believe your bill is incorrect, you must contact us in writing within 30 days of the date of the charge containing the amount in question to be eligible to receive an adjustment or credit.

8. Term Expiry and Renewal

This Agreement commences on the Effective Date and continues for the Initial Term of 12 months. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of 12 months (“Renewal Term”) at SCHOOLPEERS’s then current fees. Either party may terminate this Agreement, effective upon the expiration of the current Initial Term or Renewal Term (as applicable), by notifying the other party in writing at least thirty (30) business days prior to the expiry of that term. You are responsible for paying for the access and use of the Service for the entire Term, whether or not any or all Users actively accesses and uses the Service.

9. Non-payment and suspension

In addition to any other rights granted to SCHOOLPEERS in this Agreement, SCHOOLPEERS reserves the right to not upgrade, suspend or terminate this Agreement and your access to the Service if your account falls into arrears, including the right to not upgrade the Service. SCHOOLPEERS may charge interest on overdue amounts, which are payable forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Such interest shall accrue on a daily basis and be compounded quarterly. If you or SCHOOLPEERS initiates termination of this Agreement, you will be obliged to pay the balance due on your account and any fees that would have accrued during the remainder of the current Term, but for the termination of this Agreement, computed in accordance with the Fees and Payment section above. You agree that SCHOOLPEERS may bill you for such fees.

SCHOOLPEERS reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that SCHOOLPEERS has no obligation to retain Content and that such Content may be irretrievably deleted if your account is 90 days or more in arrears or otherwise suspended or inactive.

10. Termination for cause

Any breach of your payment obligations or unauthorized use of the SCHOOLPEERS Technology, Content or Service will be deemed a material breach of this Agreement. SCHOOLPEERS, in its sole discretion, may terminate your password, account, an individual User account or use of the Service or this Agreement if you breach or otherwise fail to comply with this Agreement. In addition, SCHOOLPEERS may terminate a free account at any time in its sole discretion. Termination by SCHOOLPEERS in accordance with the rights contained in this Agreement shall be without prejudice to any other rights or remedies of SCHOOLPEERS accrued prior to termination.

11. Representations, Warranties and Disclaimers

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. SCHOOLPEERS represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof in the country in which it is being provided, provided that this warranty will not apply if any issue with the Service results from you or your User(s) having used the Service outside the terms of this Agreement, or for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by SCHOOLPEERS. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SCHOOLPEERS AND ITS LICENSORS.

SCHOOLPEERS’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SCHOOLPEERS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

12. Indemnities

You shall indemnify and hold SCHOOLPEERS, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: (i) a claim alleging that use infringes the rights of, or has caused harm to, a third party; (ii) a claim alleging that your use of the Service for your business purposes or your User activity infringes the rights of, or has caused harm to, a third party; (iii) a claim alleging that any activity occurring under your User accounts or by you in using the Service infringes any applicable local, state, national and/or foreign laws, treaties and regulations, including without limitation those related to data privacy, international communications and the transmission of technical or personal data; (iv) a claim, which if true, would constitute a violation by you of your representations and warranties; or (v) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that SCHOOLPEERS (a) gives written notice of the claim promptly to you (on becoming aware of such a claim); (b) at your request, gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release SCHOOLPEERS of all liability and such settlement does not affect SCHOOLPEERS’s business or Service); (c) following your request, provides to you all available information and assistance; and (d) has not compromised or settled such claim.

SCHOOLPEERS shall indemnify and hold you and your officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) actually awarded against you, your officers, directors and/or employees arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright or a trademark of a third party in the United Kingdom, Australia or United States of America; or (ii) a claim, which if true, would constitute a violation by SCHOOLPEERS of its representations or warranties; provided that you (a) promptly give written notice of the claim to SCHOOLPEERS; (b) give SCHOOLPEERS sole control of the defense and settlement of the claim (provided that SCHOOLPEERS may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to SCHOOLPEERS all available information and assistance; and (d) have not compromised or settled such claim. SCHOOLPEERS shall have no indemnification obligation, and you shall indemnify SCHOOLPEERS pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service (or any part of the Service, Technology and/or Content) with any of your or third party products, software, service, hardware or business process(s).

13. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S (AND/OR, IN THE CASE OF SCHOOLPEERS, ITS LICENSORS’) AGGREGATE LIABILITY EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT AND/OR SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF SCHOOLPEERS TERMINATES THIS AGREEMENT AS A RESULT OF ANY MATERIAL BREACH OF THIS AGREEMENT BY YOU OR IF YOU TERMINATE THIS AGREEMENT WITHOUT CAUSE, YOU MUST PAY TO SCHOOLPEERS AN AMOUNT EQUAL TO THE TOTAL ANNUAL SUBSCRIPTION FEES PAYABLE BY YOU DURING THE CURRENT TERM (MINUS ANY ANNUAL SUBSCRIPTION FEES ALREADY PAID BY YOU), WITHOUT PREJUDICE TO ALL AND ANY OTHER RIGHTS OF SCHOOLPEERS UNDER THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE TOTAL ANNUAL SUBSCRIPTION FEES PAYABLE BY YOU DURING THE CURRENT TERM (MINUS ANY ANNUAL SUBSCRIPTION FEES ALREADY PAID BY YOU) REPRESENTS A GENUINE PRE-ESTIMATE OF THE LIQUIDATED DAMAGES LIKELY TO BE SUFFERED BY SCHOOLPEERS AS A RESULT OF ANY MATERIAL BREACH OF THIS AGREEMENT BY YOU.

IN NO EVENT SHALL EITHER PARTY BRING ANY CLAIM OR CAUSE OF ACTION AGAINST THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

14. Local Law and Export Control

You are solely responsible for, and accept liability for, ensuring compliance with local laws and local export controls applicable to your business and to your use of the Service in connection with your business. The SCHOOLPEERS COMPLIANCE Website and Service provides services and uses software and technology that may be subject to United States export controls and the export control regulations of the European Union, Denmark and Australia. You acknowledge and agree that the SCHOOLPEERS COMPLIANCE Website and the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, the European Union, Denmark and/or Australia maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., European Union, Danish and Australian export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This site may use encryption technology that is subject to licensing requirements under the U.S., European Union, Danish and/or Australian laws and/or regulations.

If you use the Service from outside the United Kingdom, Australia and the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United Kingdom, Australian or United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United Kingdom government, the Australian government and the United States government or appropriate body for such purposes.

15. Error Correction

Subject to the exclusions and limitations set out below, Support Services shall be defined to be queries you place in relation to any errors or defects found in respect of the Service (‘Error Queries’).

If any part of the Service contained in the latest New Release (the “Current Release”) fails to function as expected, you shall, as soon as reasonably practicable, notify SCHOOLPEERS of such defect or error. You may place Error Queries via email during Available hours. In addition, you shall complete and submit by email a Fault Report, which shall contain sufficient information describing the nature of the defect or error and its impact on your ability to use the Service to enable SCHOOLPEERS to classify the defect or error together with a documented example of the defect or error.

You shall provide SCHOOLPEERS with all assistance reasonably requested by SCHOOLPEERS in order to enable SCHOOLPEERS to remedy any defects or errors in the Service. You agree that it is reasonable for SCHOOLPEERS to request, amongst other things, access to your premises and/or server(s) (either remotely or physically) in order that it can update your dedicated installation with any corrected version of the Current Release (where relevant), and that the Resolution Time for Dedicated Installations may be greater than specified above for these reasons.

Exclusions from and limitations to Support Services and error correction services:

Maintenance, support or other services in respect of the following are not included in your support allowance and the Support Services and in the error correction services described above: integration with existing systems; beta functionality; solution or configuration consulting; custom report development and other customisation of the Service and/or SCHOOLPEERS Technology; defects or errors which, in the reasonable opinion of SCHOOLPEERS, result from any modifications to the Current Release made by any person other than SCHOOLPEERS; use of any version of the Service other than the Current Release; incorrect use of the Current Release or database or operator error/lack of training; any fault in your equipment or in any programs used in conjunction with the Current Release; any defects or errors caused by use of the Current Release on or with equipment or programs not supplied by or approved in writing by SCHOOLPEERS provided that for this purpose any programs designated for use with the Current Release shall be deemed to have the written approval of SCHOOLPEERS; any modification of the Current Release not authorised in writing by SCHOOLPEERS; operation of the Current Release outside SCHOOLPEERS’s recommended applicable operating conditions and environmental specifications which may include running the Service on server infrastructure shared with other applications and databases; improper site preparation or maintenance (in the reasonable opinion of SCHOOLPEERS); accident, neglect, hazard or misuse; natural calamity; failure or fluctuation of electrical power or environmental conditions; and/or any unauthorised maintenance of the Current Release or other failure by you or a User to comply with the terms of this Agreement.

SCHOOLPEERS may, in its sole and absolute discretion, elect to provide maintenance services or other support services in circumstances covered by the exclusions listed above and/or where it determines that there is not a defect with the Current Release, in which case such services will be provided at SCHOOLPEERS’s then current rates. You acknowledge and agree that the software contained in the SCHOOLPEERS Technology used to provide the Service is complex, and that certain errors and defects are incapable of correction or may require an inordinate amount of time and money to correct. If SCHOOLPEERS, in its reasonable opinion, concludes that a defect or error falls into either of these categories, then SCHOOLPEERS shall have no obligation to correct such defect or error.

In providing support and error correction services under the terms of this Agreement, SCHOOLPEERS may in its sole and absolute discretion: (i) provide a local fix or patch of any relevant software; (ii) provide a temporary by pass or work around solution; (iii) schedule the resolution of the defect or error for inclusion in a subsequent New Release; (iv) modify SCHOOLPEERS documentation to reflect operating limitations and correct operating procedures; and (v) request you to provide such information as may be required to enable it to identify and correct any defect or error in question or to provide support (which information you shall provide within a reasonable time). Time will not be of the essence in undertaking support and error correction services.

Failure to comply with these support and error correction provisions shall not constitute a breach of this Agreement by SCHOOLPEERS.

SCHOOLPEERS may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in SCHOOLPEERS’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in SCHOOLPEERS’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to SCHOOLPEERS (such notice shall be deemed given when received by SCHOOLPEERS) to enquiries@schoolpeers.org, in each case addressed for the attention of: Chief Executive Officer

16. Modification to terms

SCHOOLPEERS reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon publishing modifications to this Agreement.

17. Assignment and Change in Control

This Agreement may not be assigned by you without the prior written approval of SCHOOLPEERS but may be assigned without your consent by SCHOOLPEERS to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of SCHOOLPEERS directly or indirectly owning or controlling 50% or more of you shall entitle SCHOOLPEERS to terminate this Agreement for cause immediately upon written notice.

18. Data Protection

This clause applies where the Customer is using the Service within the European Economic Area. In this clause, the terms “data processor”, “data controller” and “personal data” have the meanings given to them in the Data Protection Act 1998 (the “Act”). A data subject is an individual who is the subject of personal data. Each party is responsible for complying with its obligations under the Act. The parties acknowledge that: (a) the provision of the Services will require processing of personal data on behalf of the Customer by SCHOOLPEERS; and (b) for the purposes of the Act the Customer is a data controller and SCHOOLPEERS shall be a data processor. SCHOOLPEERS undertakes that, in relation to any personal data that it or any of its sub-contractors processes on behalf of the Customer it shall and shall procure that its sub-contractors shall: (a) process such personal data only in accordance with its obligations under this Agreement or otherwise on the instructions of the Customer, provided that SCHOOLPEERS will not be liable for any loss, costs or damage suffered by the Customer to the extent that such loss, costs, damage or failure arises from its compliance with this clause; (b) implement appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data in compliance with the Act; take appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data and against any accidental loss or destruction of or damage to such personal data; not transfer any personal data outside the European Economic Area, other than to (i) a third party in the United States which at all relevant times adheres to the Safe Harbor Privacy Principles and associated 15 Frequently Asked Questions, approved by the European Commission (Decision of 26th July 2000 (2000/520/EC)) (a Safe Harbor Adherent) or (ii) a country which ensures an adequate level of protection by reason of its domestic law or of the international commitments it has entered into, as determined by the European Commission (Council Directive of 24 October 2005 (95/46/EC)); and (e) promptly notify the Customer of any accidental or unauthorised access to the personal data. The Customer undertakes that it shall obtain all necessary consents from End Users and provide all information to End Users that is required to be provided under the Act for the processing of data in relation to the Services, including all necessary consents for the transfer of personal data to a Safe Harbor Adherent in the United States. Each party shall provide all such co-operation and information as the other party may reasonably require to enable such other party to comply with their obligations under the Act including in relation to any subject access request made under the Act and/or responding to any enquiry made, or investigation or assessment of any processing initiated by the Office of the Information Commissioner. Each party (“indemnifying party”) shall indemnify and keep indemnified the other party (“indemnified party”) against all losses, damages, costs, expenses (including reasonable legal fees and expenses) and liabilities arising as a result of a breach by the indemnifying party of its obligations under this clause and including without limitation, as a result of any claim by a data subject in respect of the processing of his or her personal data by the indemnifying party.

19. Governing Law

With respect to customers located in North, Central or South America (including the Caribbean), this Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas. With respect to customers located in Asia, Australia, New Zealand and the Pacific islands, this Agreement shall be governed by the laws of the state of Victoria, Australia without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Victoria, Australia. With respect to customers located in Europe or anywhere else in the world, other than those territories listed above, this Agreement shall be governed by the laws of England and Wales without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of England and Wales.

20. General

No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall prevail. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and SCHOOLPEERS as a result of this agreement or use of the Service. The failure of SCHOOLPEERS to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SCHOOLPEERS in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and SCHOOLPEERS and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, act of terrorism, fire, flood, explosion or civil commotion (although nothing shall excuse you from any payment obligations under this Agreement). Except for affiliates of SCHOOLPEERS (who may enforce and who benefit from this Agreement as if they were a party to it), no term of this Agreement is intended to confer a benefit on, or to be enforceable by any person who is not a party to this Agreement.

Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party.

Neither party will disclose to the media any information regarding this Agreement or work performed under this Agreement without the written consent of the other party however SCHOOLPEERS may use your name, logo and a factual description of the service provided under this Agreement and issue a press release without your written consent.

21. Counterparts and Electronic Documents

This Agreement may be executed and delivered in counterparts, including by a facsimile or an electronic transmission thereof, each of which shall be deemed an original. Any document generated by the parties with respect to this Agreement, including this Agreement, may be imaged and stored electronically and introduced as evidence in any proceeding as if original business records. Neither party will object to the admissibility of such images as evidence in any proceeding on account of having been stored electronically.

22. Questions and Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to enquiries at enquiries@schoolpeers.org.

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