Scholastic Online Learning Applications: Site Terms and Conditions

These terms and conditions set out the terms on which you may purchase a licence to use any Scholastic Online Learning Application.

Please read these terms and conditions carefully, as if you purchase a licence you will be agreeing to comply with them.

We advise that you print a copy of these terms and conditions for future reference.

If you have any queries about these terms and conditions please contact Scholastic using the contact details set out on the Scholastic website.

1. DEFINITIONS AND INTERPRETATION

1.1 In these terms and conditions:

“Agreement” means these Terms and the Order Form; “Business Day” means Monday to Friday excluding public holidays in England; “The application” and “an application” mean such elements of a Scholastic Online Learning Application as the School selects to purchase on the Order Form. By way of example, if the School selects to purchase Class PET – Key Stage 1 & 2 Literacy, then the term “the application” shall be taken to include only this element (and not any other element of a Scholastic Online Learning Application that the School has not selected to purchase); “Confidential Information” shall have the meaning given in Clause 8.1;

“Confirmation” shall have the meaning given in Clause 2.1; “Fee” means the applicable subscription fee charged by Scholastic for the application, as stated on the Website and confirmed to the School within the Confirmation; “Intellectual Property Rights” means copyright, patents, trade marks, rights in goodwill or to sue for passing off, trade secrets, registered design rights, design rights, database rights, know-how, rights in domain names, semi-conductor topography rights, service marks, trade, business and domain names, rights in trade dress or get up, moral rights, performers rights, database rights and all other legal and beneficial intellectual and industrial property and similar rights of all types under the laws of any governmental authority in any jurisdiction no matter what such rights may be known as in any particular country in the world and including all renewals, applications and registrations relating to any of the foregoing in any part of the world; “Licence” shall have the meaning given in Clause 3.1;

“Manual” shall have the meaning given in Clause 3.3; “Material” means any and all content and material on the application throughout the duration of this Agreement but excluding any content or material which has been uploaded onto the application by a Teacher or a Student or any other third party pursuant to this Agreement; “Order Form” means the form on the Website as filled in by the School for the purpose of applying to purchase the Licence; “Parent” means a parent (or, if applicable, a guardian) of a Student;

“Parental Consent Form” means the consent form attached at Schedule 1 (or such other form of wording which Scholastic may provide to the School from time to time in writing), by which the School obtains the consent of each Parent who wishes their child to use the application; “Scholastic” means Scholastic UK Ltd a company registered in England and Wales with company number 4452170 whose registered office is at Westfield Road, Southam, Warwickshire, CV47 0RA; “School” means the school specified on the Order Form; “Student” means any person who currently attends the School as a valid student;

“Student Rules of Use” means the rules governing the use of the application by Students attached at Schedule 2 (or such other Student Rules of Use which Scholastic may provide to the School in writing from time to time) and which are accessible via the application; “Terms” means these terms and conditions; “Teacher” means any person who is currently validly employed by the School as a teacher or a classroom assistant or a schools administrator (as applicable); “Teacher Terms of Use” means the terms governing the use of the application by Teachers attached at Schedule 3 (or such other Teacher Terms of Use which Scholastic may provide to the School in writing from time to time); and

“Website” means the website currently located at the domain name www.scholastic.co.uk or such other domain name as Scholastic may notify to the School in writing from time to time. 1.2 In this Agreement, unless the context otherwise requires: 1.2.1 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and the words following those terms shall not limit the sense of the words preceding those terms; 1.2.2 where appropriate, words denoting the singular include the plural, words denoting any gender include every gender, words denoting persons include bodies corporate and unincorporate and references to the whole include the part and, in each case, vice versa; 1.2.3 any obligation on a person not to do something includes an obligation not to agree, permit, allow or acquiesce in that thing being done;

1.2.4 references to the Clauses are to the clauses of these Terms. Headings do not affect the interpretation of this Agreement; 1.2.5 in the event of any conflict or ambiguity between a provision of these Terms and a provision of the Order Form, the provision of these Terms shall prevail; and 1.2.6 any reference to any Act of Parliament shall be deemed to include any amendment, replacement or re-enactment thereof for the time being in force and to include any bye-laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions (together with any conditions attaching to any of the foregoing) made thereunder.

2. APPLICATION AND PAYMENT

2.1 The School applies for the Licence by selecting the precise element of an application it requires on the relevant page of the Website and then submitting the completed Order Form to Scholastic. A binding contract will be formed when Scholastic sends to the School its email confirmation (the “Confirmation”) of Scholastic’s acceptance of the application.

2.2 The Fee is payable in pounds sterling exclusive of VAT which shall be payable, if applicable, at the rate prevailing from time to time. The School shall pay the Fee following receipt of the Confirmation either:

2.2.1 via valid credit or debit card details submitted at the time of submission of the Order Form; or

2.2.2 by complying with the written instructions set out on the Confirmation, provided that full payment must be made within 30 days of receipt of the Confirmation.

2.3 Payment of the Fee will not be treated as having been made until Scholastic has received cleared funds in respect of all sums due. In the event that the School fails to pay the Fee in accordance with Clause 2.2 above, Scholastic shall be entitled to terminate this Agreement immediately upon written notice to the School.

2.4 If any amounts payable under this Agreement are not paid to Scholastic by their due date for payment (whether Fees or otherwise), then Scholastic shall be entitled to charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds TSB Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after judgment.

3. LICENCE AND MANUAL

3.1 In consideration of payment of the Fee, Scholastic hereby grants to the School a non-exclusive, non-transferable, non sub-licensable and revocable licence to use the application within the United Kingdom, strictly in accordance with the provisions of this Agreement (the “Licence”)

3.2 The Licence shall continue for the duration of the term set out on the Order Form and confirmed in the Confirmation, unless it is otherwise terminated in accordance with this Agreement.

3.3 Following the Confirmation, Scholastic shall send one copy of the current application user manual (the “Manual”) to the School at the postal address provided by the School on the Order Form.

3.4 In the event that Scholastic and the School enter into any free trial agreement in respect of the application, the provisions of this Agreement shall take effect with the exception of the payment provisions.

4. WARRANTIES

4.1 The School hereby warrants and represents that:

4.1.1 it has the capacity to enter into this Agreement; and

4.1.2 it is (and shall remain throughout the term of this Agreement) a legitimate school registered with a local authority in the United Kingdom.

4.2 The School hereby warrants, represents and undertakes that it shall use the application for educational use only for its students and not for any commercial purpose whatsoever.

5. USE OF SCHOLASTIC ONLINE LEARNING APPLICATIONS

5.1 The School agrees that it shall restrict the use of the application strictly to Students and Teachers and that it shall use all reasonable endeavours to ensure compliance with the provisions of this Agreement.

5.2 The School acknowledges and agrees that the application is an online assessment tool accessible via the Website and that the use of the application by the School, Teachers and Students will require access to the Website. The School hereby agrees that it shall be solely responsible for making all arrangements necessary (and paying all associated costs) for the School, the Students and the Teachers to have access to the Website.

5.3 Following its receipt of the Confirmation, the School shall be able to create an exclusive username and password. The School’s username and password shall enable the School to access and use the application. The School shall treat its username and password as personal and confidential to the School, and the School shall not disclose its username and/or password to any third party. The School shall be fully liable for any use of the application by a third party using the School’s username and password.

5.4 The School’s account shall enable the School to invite Teachers to register to use the application. Each Teacher that responds positively to the invitation to use the application and agrees to the Teacher Terms of Use shall be able to create an individual account, username and password. The Teacher’s account, username and password shall enable the Teacher to access and use the application provided that the Teacher agrees to comply with the Teacher Terms of Use. The School hereby warrants, represents and undertakes that:

5.4.1 each Teacher invited to use the application shall be a legitimate teacher employed exclusively by the School;

5.4.2 it shall ensure that each Teacher shall treat its username and password as personal and confidential to the Teacher, and the Teacher shall not disclose its username and/or password to any third party; and

5.4.3 it shall ensure that each Teacher uses the application strictly in accordance with the provisions of this Agreement and the Teacher Terms of Use.

5.5 Each Teacher’s account shall enable such Teacher to register that Teacher’s Students to use the application. The Teacher shall be enabled to create an individual account, username and password for each Student whose parents have provided a valid, signed Parental Consent Form. The Student’s account, username and password shall enable the Student to access and use the application provided that the Student agrees to comply with the Student Rules of Use. The School hereby warrants, represents and undertakes that:

5.5.1 each Student invited to use the application shall be a legitimate student registered solely at the School at the time of joining;

5.5.2 it shall use all reasonable endeavours to ensure that each Student shall treat his/her username and password as personal and confidential to the Student, and such Student shall not disclose his/her username and/or password to any third party; and

5.5.3 it shall use all reasonable endeavours to ensure that each Student uses the application strictly in accordance with the provisions of this Agreement and the Student Rules of Use.

5.6 Subject to the School’s compliance with this Agreement (including Clauses 5.4 and 5.5), each Teacher and Student who validly registers with the application shall be entitled to access their account and use the application by logging onto the Website.

5.7 In the event that any Teacher or Student leaves the School, the School shall promptly close the account of such Teacher or Student. The School agrees that Scholastic shall have the right to disable any username, password, or other security procedure (whether chosen by the School or allocated by Scholastic), at any time, if Scholastic reasonably suspects that the School and/or any Teacher and/or any Student has failed to comply with any of the terms of this Agreement (or, where applicable, the Teacher Terms of Use or the Student Rules of Use).

5.8 The School shall promptly report to Scholastic any malfunctions of the application of which it becomes aware.

6. USE OF SCHOLASTIC ONLINE LEARNING APPLICATIONS BY STUDENTS

6.1 The School acknowledges that:

6.1.1 the use of the application by any person will require such person to provide Scholastic with certain personal information; and

6.1.2 to help ensure compliance with the Data Protection Act 1998, no Student should be able to provide personal information to Scholastic (or any other data controller) using a tool such as the application, unless such Student’s Parent has provided their express written consent to the provision of such personal information by the Student in the form of the Parental Consent Form.

6.2 The School warrants, represents and undertakes that:

6.2.1 it shall not allow any individual Student to use the application unless the School has received a Parental Consent Form validly signed by a Parent in respect of such individual Student; and

6.2.2 it shall store each validly signed Parental Consent Form and promptly produce a copy of each such validly signed Parental Consent Form to Scholastic upon request.

6.3 Each party warrants, represents and undertakes that it shall comply with its obligations under the Data Protection Act 1998.

7. CONTENT OF SCHOLASTIC ONLINE LEARNING APPLICATIONS

7.1 The School acknowledges and agrees that (as between the School and Scholastic) the Intellectual Property Rights in the Website, the application (including the look and feel of the application), the Material and the Manual shall remain the property of Scholastic or its licensors and that any goodwill or other right, title or interest arising from their use accrues solely for the benefit of Scholastic or its licensors (as the case may be).

7.2 The School does not by virtue of this Agreement obtain any proprietary rights in such Intellectual Property Rights detailed at Clause 7.1 above and (at Scholastic’s reasonable request and cost) agrees to do, and shall use all reasonable endeavours to procure that all third parties do, all such reasonable acts and execute any documents as may be reasonably necessary to vest such Intellectual Property Rights in Scholastic or its licensors (as the case may be).

7.3 The School shall not be entitled to print and/or distribute any of the Material or the Manual or any other material provided to it by Scholastic which relates to the application without the prior written agreement of Scholastic. The School warrants, represents and undertakes that:

7.3.1 it shall not offer for sale or sell or distribute over any medium or in any form any of the Material or the Manual; and

7.3.2 it shall not make any part of the Website available as part of another website, whether by hyperlink, framing on the internet or otherwise;

7.3.3 it shall not seek to bypass or avoid any of the security steps put in place by Scholastic in respect of the application; and

7.3.4 that it shall ensure that Teachers shall not breach the terms of this Clause 7.3.

7.4 The School shall notify Scholastic in writing promptly upon it or its Teachers becoming aware of any unauthorised access to or use of the application by any party or of any claim that the Website and/or the application and/or any Material and/or the Manual infringes any Intellectual Property Rights or other rights of any third party.

7.5 The School shall monitor all content and materials which are uploaded onto the application by Students and Teachers and any other third party pursuant to this Agreement. The School shall promptly remove any such material and/or content which in the School’s reasonable opinion falls into any of the following categories;

7.5.1 subject to Clause 5 and 6, any private information or personal data of any third party including, without limitation, telephone numbers, addresses, other contact details or passwords or financial details or any attempt to solicit such private information;

7.5.2 any content or material that appears to infringe any Intellectual Property Rights of any party;

7.5.3 any content or material that is unlawful, harmful, infringing, threatening, abusive, inflammatory, harassing, tortuous, defamatory, vulgar, obscene, fraudulent, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

7.5.4 any content or material that would constitute, encourage or provide instructions for a criminal offence, violate the rights of any party, or would otherwise create liability or violate any applicable laws;

7.5.5 any content that, in the reasonable judgment of the School, is objectionable or which restricts or inhibits another’s use or enjoyment of the application and/or the Website, or which may expose Scholastic, its affiliates or its users to any harm or liability of any kind.

7.6 The School acknowledges and agrees that Scholastic shall have the right to remove any content or material that has been uploaded onto the application and which Scholastic deems in its sole discretion falls within any of the categories set out at Clause 7.5 above.

7.7 The School acknowledges and agrees that Scholastic has the right to amend any part of the application (including any technical specifications of the application) at any time at Scholastic’s sole discretion provided that this does not cause material detriment to the application and/or materially impair the functionality of the application. Scholastic shall not be obliged to inform the School of any such amendments. The School acknowledges and agrees that any part of the application may be out of date at any given time and Scholastic shall be under no obligation to update the application.

8. CONFIDENTIALITY

8.1 Neither party shall use, copy, adapt, alter, disclose or part with possession of any information or data of the other party which is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and which is of a confidential nature (“Confidential Information”) except as strictly necessary to perform its obligations or exercise its rights under this Agreement PROVIDED THAT this provision shall not apply to Confidential Information:

8.1.1 which the receiving party is able to prove was already in its possession at the date it was received or obtained or which the receiving party obtains from some other person with good legal title to the same or which is independently developed by or for the receiving party; or

8.1.2 which comes into the public domain otherwise than through the default or negligence of the receiving party; or

8.1.3 which the receiving party is required to disclose by law or applicable regulatory authority (but only to the extent of such required disclosure).

8.2 In all cases each party shall inform the other party immediately upon becoming aware or suspecting that an unauthorised person has become aware of Confidential Information, or that an unauthorised disclosure of Confidential Information has been made.

8.3 Each party shall ensure that its personnel, sub-contractors and agents who have, or may have, access to the Confidential Information are bound by an undertaking in substantially the same terms as this Clause 8.

8.4 The School shall treat each part of the Material as Confidential Information of Scholastic for the purpose of this Agreement.

8.5 The provisions of this Clause 8 shall continue in force notwithstanding termination or expiry of this Agreement.

9. LIMITATION OF LIABILITY AND INDEMNITY

9.1 Scholastic shall take reasonable steps to ensure the availability of the application and the Website. Scholastic is providing the application and the Website on an “as is” basis and to the fullest extent permissible by law makes no (and expressly excludes all) guarantees, representations (except for fraudulent misrepresentation) or warranties of any kind (express or implied) with respect to the application and its contents or any websites to which it is linked including, without limitation, warranties as to quality and fitness for purpose.

9.2 Scholastic does not represent or warrant that the content appearing on the application is accurate, complete, reliable or current nor that the application will meet particular requirements, or be available, accessible, uninterrupted, timely, secure or operate without error or that it will be free from viruses, worms, trojan horses or other harmful elements. Scholastic expressly excludes any warranty as to the compatibility of the Material with any curriculum that may be followed at any time by the School. Scholastic disclaims all liability and responsibility arising from any reliance placed on the application by the School and/or any Teacher and/or any Student and/or by anyone else who may use/be informed of any of its contents.

9.3 Neither Scholastic nor any of its respective agents or group companies shall be liable under this Agreement in contract, tort (including negligence and breach of statutory duty) or otherwise for any loss of profits (whether direct or indirect), revenue, use, anticipated savings, goodwill, reputation, business opportunity and/or related costs or expenses or for any indirect, incidental, special or consequential loss arising under or in connection with this Agreement (whether or not reasonably foreseeable and even if it had been advised of the possibility of occurrence of the same).

9.4 Scholastic’s total liability in contract, tort (including negligence or breach of duty) misrepresentation or otherwise arising in connection with this Agreement shall be limited to the greater of: (i) £5,000; or (ii) the aggregate amount of the Fee paid by the School during the preceding three calendar years.

9.5 Nothing in this Agreement shall exclude or limit Scholastic’s liability for death or personal injury caused by its negligence or for fraud or fraudulent misrepresentation or for any liability which cannot be excluded or limited by law.

9.6 The School agrees on demand to fully indemnify and keep fully indemnified Scholastic, its directors, employees, representatives and agents, from and against any claims, actions, demands or other proceedings (including reasonable legal fees) based on or arising in connection with any breach by the School of this Agreement (or, where applicable, the Teacher Terms of Use and the Student Rules of Use).

10. TERMINATION

10.1 Without prejudice to its other rights and remedies, either party may terminate this Agreement immediately upon written notice if the other:

10.1.1 commits a material breach of this Agreement which is not capable of remedy or if the other party commits a material breach of this Agreement which is capable of remedy but which it fails to remedy within 30 days of written notice of such breach; or

10.1.2 enters into and/or itself applies for, and/or calls meetings of members and/or creditors with a view to one or more of a moratorium, administration, liquidation (of any kind, including provisional), or composition and/or arrangement (whether under deed or otherwise) with creditors and/or has any of its property subjected to one or more of appointment of a receiver (of any kind), enforcement of security, distress, or execution of a judgment (in each case to include similar events under the laws of other countries).

10.2 Scholastic may terminate this Agreement immediately upon written notice to the School in accordance with Clause 2.3 or following a breach by the School of either Clause 4, 7.3 or 8.

10.3 In the event that Scholastic terminates this Agreement, the School shall promptly return the Manual to Scholastic together with any other materials provided to the School by Scholastic pursuant to this Agreement.

10.4 In the event that at any time the School is prevented from using any part of the application by a court order or otherwise, Scholastic shall, at its option and in favour of the School, promptly:

10.4.1 substitute fully equivalent non-infringing software (both in terms of functionality and performance); or

10.4.2 modify the application so that it no longer infringes but remains equivalent both in terms of functionality and performance; or

10.4.3 repay the relevant proportion of the Fee for the unexpired part of the term of this Agreement, on a pro-rata basis.

11. FORCE MAJEURE

Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure was beyond that party’s reasonable control (including fire, flood, explosion, epidemic, riot, civil commotion, act of God, war or warlike hostilities or threat of war, terrorist activities, accidental or malicious damage, industrial action, any prohibition or restriction by any governments or other legal authority which affects this Agreement and which is not in force on the date of this Agreement) (an “event of force majeure”). A party claiming to be unable to perform its obligations under this Agreement (either on time or at all) in any of the circumstances set out above must notify the other party of the nature and extent of the circumstances in question as soon as practicable and shall take all reasonable steps necessary to bring the event of force majeure to a close or to find a solution by which its obligations under this Agreement may be performed despite the event of force majeure. Either party may terminate this Agreement immediately upon written notice if the other has been unable to perform its obligations under this Agreement as a result of an event of force majeure for 30 days or longer.

12. GENERAL

12.1 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.

12.2 No waiver by Scholastic of any provisions of this Agreement or any of its rights under this Agreement shall have effect unless given in writing and signed by Scholastic. Scholastic’s rights shall not be prejudiced or restricted by any concession, indulgence or forbearance extended to the School.

12.3 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

12.4 The School shall not, without the prior written consent of Scholastic, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

12.5 Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

12.6 This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

12.7 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this Clause 12.7 does not affect a right or remedy of a third party which exists or is available apart from that Act.

12.8 Unless otherwise notified by Scholastic to the School in writing, notices given under this Agreement to Scholastic shall be in writing sent for the attention of the Managing Director at Scholastic UK Ltd, Westfield Road, Southam, Warwickshire, CV47 0RA. Notices given under this Agreement to the School shall be in writing, sent to such address, fax number or person as the School provides in the Order Form or may notify to Scholastic from time to time. Notices shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this Clause 12.8 is not within business hours (meaning 9.00 am to 5.30 pm on a Business Day), at 9.00 am on the first Business Day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

12.9 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including any non-contractual claim or dispute), shall be governed by, and construed in accordance with, the law of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.