PARTIES

(1)Future Learning Limited incorporated and registered in England and Wales with company number 09940190 whose registered office is at 40 Mortington Avenue, Rochford, Essex, SS4 1DN (Supplier)

(2)[Insert name of customer i.e. school/ address](Customer)

BACKGROUND

(A)  The Supplier is the entire legal and beneficial owner and licensor of certain software products listed in and is willing to license the Customer to use these products.

AGREED TERMS

1.  INTERPRETATION

     1.1 The definitions and rules of interpretation in this clause apply in this licence.

Affiliate:  includes, in relation to the Supplier, any business entity from time to time controlling, controlled by, or under common control with, the Supplier.

Initial Term: The period of time the license is granted for, that being 12 months from the Start Date.

Extended Term: The period of time the license will extend for following the expiration of the Initial Term or any Extended Term.

Start Date: The date of delivery in accordance with clause 2.

Intellectual Property Rights:  patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.

Policies:  the Supplier’s business policies and codes listed in Annex A, as amended by notification to the Customer from time to time.

Site:  the premises from which the Customer carries out its business as stated above or as notified to the Supplier in writing from time to time.

Software:  Interactive educational digital video by way of online platform

Student(s): a child who is enrolled to study at the Customer’s educational institution.

Pupil Premium: additional funding for publicly funded schools in England to raise the attainment of disadvantaged pupils of all abilities and to close the gaps between them and their peers.

Remote Access: ability to access the Software away from the Site.

Online Platform: The online provider used by the Supplier to deliver the Software including but not limited to Vimeo and YouTube.

Fee:  the licence fee payable by the Customer to the Supplier under Clause 4.

1.2   Holding company and subsidiary mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

     1.3   Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

     1.4   Unless the context otherwise requires:

(a)   words in the singular shall include the plural and in the plural shall include the singular;

(b)  a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;

(c)  a reference to one gender shall include a reference to the other genders; and

(d)   any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.5  In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedules or appendices, the provision in the body of this licence shall take precedence.

1.6  A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.7   The Schedules and Annexes form part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedules and Annexes.

2.  DELIVERY

2.1 The Supplier shall deliver the Software electronically to the Customer within [NUMBER] days of the acceptance of the contract by the Customer or payment by the Customer in accordance with clause 4, whichever is latest.

2.2 The software shall be made available to the Customer by way of online platform.

3.  LICENCE

3.1   In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier shall acknowledge, the Supplier grants to the Customer a non-exclusive licence for a term of 12 months to view and use the Software.

3.2   The Customer shall not sub-license, assign or novate the benefit or burden of this licence in whole or in part.

3.3   The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.

     3.4   Each party confirms it is acting on its own behalf and not for the benefit of any other person.

3.5   The Customer shall ensure that the only persons using the Software are those persons who are employed to work for the Customer from time to time, in the course of their employment.

3.5 Unless Clause 3.7 applies or the Student subscribes for Remote Access to the Software, Students of the Customer will have access to the Software at the Site only.

3.6 The Customer may provide Students who are entitled to Pupil Premium and for whom they receive Pupil Premium for, with Remote Access to the Software, without any charge to those Students.

3.7 The Customer may provide Students with credentials to enable them to subscribe for Remote Access to the Software.

3.8   The Customer shall ensure that the only persons using the Software are the Customer’s Students and those persons who are employed to work for the Customer from time to time, in the course of their employment.

3.96 The Customer shall notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person and shall pay, for the broadening scope of the licenses granted under this license to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 4.4, from such date to the date of payment.

4.  FEES

4.1   The Customer shall pay to the Supplier licence fees of £150.00 plus VAT for the Initial Term.

4.2 The Customer shall pay to the Supplier license fees of £150.00 plus VAT or such other price as is agreed between the Customer and Supplier for each relevant Extended term. The Customer shall within 7 days of the commencement of the Extended Term make payment to the Supplier in respect of the Extended Term.

4.3 Any price variation agreed between the Customer and Supplier shall only apply if recorded in writing and signed by both parties.

4.4   If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then without limiting the Supplier’s remedies under Clause 10., the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

5.  CONFIDENTIALITY AND PUBLICITY

5.1 Each party undertakes that it shall not at any time during the Initial Term or any Extended Term or at any time after termination of the Initial Term or any Extended Term, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party unless that 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 licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

5.2   No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.

6. DATA PROTECTION

    1. 6.1 The Customer consents to the Supplier holding, and processing and controlling data relating to to it the use of the Software by the Customer for personnel, administrative, management and market research purposes and in particular to the processing of data relating to the Customer including, as appropriate information about the use of the Software by the Customer.
    1. 6.2 The Customer consents to the Supplier making such information available for the purpose of market research.
    1. 6.3 The Supplier shall comply with the Data Protection Act 1998 and the General Data Protection Regulation when processing personal data relating to the Customer, any employee of the Customer and any student Student of the Customer.

6.  SUPPLIER’S WARRANTIES

6.1 The Supplier warrants that on delivery, the Software shall:

(a) be free from material defects in access, design and workmanship; and

(b)be of a satisfactory quality; and

(c) be fit for any purpose held out by the Supplier

6.2 If the Customer considers that the Software is defective and/or faulty and that such defect and/or fault does not result from the Customer or anyone acting with the authority of the Customer, the Customer shall give notice to the Supplier within a reasonable time of discovery that the Software does not comply with the warranty set out in clause 6.1 and the Customer shall give the Supplier a reasonable opportunity to review and examine the software to identify any defect(s).

6.3 Following notice by the Customer in accordance with clause 6.2, and upon the Supplier having a reasonable opportunity to review and examine the software, the Supplier shall, at the Supplier’s option, do one of the following:

(a) repair the software;

(b) replace the software;

        (c) terminate this license immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination)

provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault and provided the Customer allows the Supplier to access its premises to review the defect and/or fault.

     6.4   The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.

6.5   The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

7. CUSTOMER’S OBLIGATIONS

7.1 The Customer shall:

(a)co-operate with the Supplier in all matters relating to this license;

(b)provide the Supplier, its employees, agents, consultations and subcontractors, with

access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Suppler to supply the Software;

(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Software, and ensure that such information is complete and accurate in all material respects;

(d) ensure that it’s security settings and/or security filters permits access to the Online Platform and/or Software;

(ed) comply with applicable laws, including health and safety laws;

(fe) not use its License to use the Software other than In accordance with the Supplier’s Policies.

8.   LIMITS OF LIABILITY

8.1 The Supplier shall not be liable for any death or personal injury caused by the Customer’s negligence and/or the negligence of any persons employed to work for the Customer.

8.2 The Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise.

8.3 The Supplier shall not be liable to the Customer in circumstances where;

(a) the Customer is unable to access the Software by virtue of the Customer’s own technical and/or connection defects and/or faults;

(b) the Customer is unable to access the Software by virtue of the Customer’s own security settings and/or security filters.

(cb) the Online Platform cannot be accessed by the Customer due to technical issues or other reasons which are the responsibility of the Online Platform provider.

8.4 The total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this license or any collateral contract, shall in no circumstances exceed a sum equal to the Fee.

8.5 The Customer agrees that, in entering into this license, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this license or (if it did rely on any representations, whether written or oral, not expressly set out in this license) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this license.

8.6 All dates supplied by the Supplier for the delivery of the Software shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

  8.7 The exclusions in clause 8 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or

(b) fraud or fraudulent misrepresentation; or

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(d) any other liability which may not be excluded by law.

8.8   All references to “the Supplier” in this Clause 8 shall, for the purposes of this clause and Clause 16 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with Clause 16.

9.  INTELLECTUAL PROPERTY RIGHTS

9.1   The Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to the Supplier and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.

9.2   If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this license infringes the UK Intellectual Property Rights of a third party (Claim) the customer shall:

(a)   as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;

(b)   not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);

(c)   give the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and

(d)   subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim. The Supplier shall not provide security where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this license.

9.3   If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

(a)   procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;

(b)   modify the Software so that it ceases to be infringing;

(c)  replace the Software with non-infringing software; or

(d)   terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof,

provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 6 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.

9.4 This clause 9 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 8.

10.  DURATION AND TERMINATION

10.1 This license is granted for an initial period of 12 months (‘Initial Term’)

10.2 Unless terminated earlier in accordance with clause 10.3, this license shall automatically extend for a period of 12 months (‘Extended Term’) at the end of the Initial Term and at the expiry of each Extended Term.

10.3 Either party may give written notice to the other party, not later than three months before the end of the Initial Term or relevant Extended Term, to terminate this license at the end of the Initial Term of relevant Extended Term.

10.4 Without affecting any other right or remedy available to it, either party may terminate this license with immediate effect by giving writing notice to the other party if:

(a) the other party fails to pay any amount due under this license by the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.

(b) the other party commits a material breach of any other term of this license which breach is irremediable or (if such a breach is remediable) fails to remedy that breach within a reasonable period of time after being notified in writing to do so

10.5 Any provision of this license that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this license shall remain in full force and effect.

10.6 Termination or expiry of this license shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the license which existed at or before the date of termination or expiry.

10.7 On termination for any reason:

(a) all rights granted to the Customer under this license shall cease and the Customer shall   no longer have access to the Software;

(b) the Customer shall cease all activities authorised by this license;

(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this license; and

(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.

10.8   Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.

11.  WAIVER

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.  REMEDIES

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

13.  ENTIRE AGREEMENT

13.1 This licence, the schedules and the documents annexed as appendices to this licence  or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

13.2  Each party acknowledges that, in entering into this licence and the documents referred to in it OR annexed to it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) other than as expressly set out in this licence or those documents.

13.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this licence.

     13.4  Nothing in this clause shall limit or exclude any liability for fraud.

14.  VARIATION

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15.  SEVERANCE

15.1  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. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. 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.

15.2   If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.  THIRD-PARTY RIGHTS

A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

17.  NO PARTNERSHIP OR AGENCY

18.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

     18.2   Each party confirms it is acting on its own behalf and not for the benefit of any other person.

18.  FORCE MAJEURE

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this agreement by giving 7days’ written notice to the affected party.

19.  NOTICES

19.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

    19.2   Any notice shall be deemed to have been received:

(a)   if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address];

(b)  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

19.3   This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include e-mail.

20.  GOVERNING LAW AND JURISDICTION

20.1 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.

20.2   The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This licence has been entered into on the date these terms are accepted .