EduKit Insight Terms of Service

EDUKIT TERMS OF SERVICE 

BETWEEN

EduKit Solutions LTD., a Social Enterprise, with registered address at C/O Kingston Smith, Devonshire House, 60 Goswell Rd, London, England, EC1M 7AD (EduKit)

AND

Partner School as identified in the Booking Form.

RECITALS:

(A)  EduKit is a social enterprise that seeks to ensure that every child or young adult can achieve his or her potential, irrespective of gender or ethnicity, where they live or what their parents do. EduKit provides Services (as defined below) to the Partner School to assist in the achievement of this goal through an innovative data dashboard and analytics platform.

(B)  Partner School wishes to appoint EduKit to act as a data processor or data controller, as applicable, for the purpose of providing services to the Partner School, as specified in the relevant Booking Form (as defined below). EduKit will act as a data controller when using Anonymised School Data (as defined below).

(C)  With this Agreement, the Parties wish to ensure that the School Data (as defined below) is protected and only used for the purposes of this Agreement. The Partner School remains the owner and data controller of the School Data in relation to the Services set out under the relevant Booking Form at all times. The Partner School agrees to provide School Data to EduKit for the purposes set out in this Agreement and under any applicable Booking Form, subject to the terms of this Agreement.

1. Definitions

1.1 In this Agreement, unless the context otherwise requires:

(a)  "Agreement" means the EduKit Terms of Service and any Booking Form entered into between the Parties;

(b)  "Anonymised School Data" means School Data that has been anonymised and no longer contains Personal Data;

(c)  "Business Day” means any day other than a Saturday, Sunday or public holiday in England and Wales;

(d)  "Charges" means the amounts which are payable by the Partner School to EduKit as set out in the relevant Booking Form;

(e)  "Confidential Information" means, in respect of a Party:

(i)  all confidential information, and information derived from such information in whatever form (including in written, graphic, oral, visual or electronic form), relating to the Party and customers which is disclosed to the other Party, by the Party or which comes to the other Party's attention in connection with the Agreement;

(ii)  all Personal Data for which one of the Parties is responsible under the Data Protection Laws and which is obtained by the other Party in connection with this Agreement;

(iii)  in respect of the Partner School, all the School Data;

(iv)  the existence and contents of this Agreement; and

(v)  all documents that contain or reflect or are generated from any of the foregoing and all copies of any of the foregoing,

in each case whether or not marked confidential; 

(f)  "Data Protection Laws" means, in respect of a Party, any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) to which the Party is subject and which regulates the processing of personal data, including the UK Data Protection Act 1998 implementing Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as amended or changed from time to time and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;

(g)  “EduKit Terms of Service” means the front end of the Agreement, excluding any relevant Booking Form(s);

(h)  "Effective Date" means the date that the Parties enter into the relevant Booking Form, or in the case of multiple Booking Forms, the first Booking Form executed as part of this Agreement;

(i)  "Force Majeure Event" means an act of God, fire, flood, war, act of terrorism, riot, civil commotion, governmental action (excluding regulatory change), labour dispute (save where such dispute involves personnel of the non-performing Party) and any similar event beyond the reasonable control of the non-performing Party;

(j)  "Personal Data" shall have the meaning given to this term or equivalent concept in the Data Protection Laws;

(k)  "Pre-Approved Subcontractor" has the meaning given to it in Clause 10.1;

(l)  "Process", "Processed" or "Processing" shall have the meaning given to such terms or equivalent concepts in the Data Protection Laws;

(m)  "Regulator" means any supervisory or government agency, body or authority having regulatory or supervisory authority over EduKit or the Partner School, or EduKit's or the Partner School's assets, resources or business, including the UK Information Commissioner’s Office (ICO);

(n)  "School Data" means data provided to EduKit by the Partner School (either provided directly by the Partner School or through its pupils, pupils` parents or other persons appointed by the Partner School) for the purposes of the Agreement as further described in any Booking Form, which may include the School Personal Data;

(o)  "School Personal Data" means Personal Data for which the Partner School is responsible under the Data Protection Laws and which is provided to EduKit in connection with this Agreement;

(p)  "Security Breaches" has the meaning given to it in Clause 4.1(d)(vii) of this Agreement;

(q)  "Services" has the meaning given to it in the relevant Booking Form;

(r)  "Standard Contractual Clauses" means the standard contractual clauses for the transfer of Personal Data to processors established in third countries set out in the European Commission Decision of 5 February 2010 (C(2010) 593);

(s)  "Term" has the meaning given to it in Clause 7.1 of this Agreement; and (t) "Booking Form" means a Booking Form entered between the Parties for the provision of Services.

1.2 In this Agreement:

(a)  the clause and section headings are included for convenience purposes only and shall not affect the interpretation of this Agreement;

(b)  any reference to a Party or the Parties includes their successors in interest and permitted assigns;

(c)  any reference to "persons" includes natural persons, companies, corporations, partnerships, limited liability companies, firms, associations, organisations, governmental authorities, foundations and trusts (in each case, whether or not having separate legal personality);

(d)  any reference to a statute, statutory provision or subordinate legislation shall, except where the context otherwise requires, be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation; and

(e)  any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. Structure of this Agreement

2.1  The EduKit Terms of Service establish the contractual framework for the supply of Services by EduKit to the Partner School.

2.2  Pursuant to the EduKit Terms of Service, the Parties shall enter into a Booking Form or Booking Forms to determine the Services, Charges and School Data required for each engagement.

2.3  The Parties acknowledge and agree that each Booking Form shall incorporate the EduKit Terms of Service in full.

2.4  In the case of conflict or ambiguity, the order of precedence for this Agreement will be as follows:

(a)  any Booking Forms entered into; and then

(b)  the EduKit Terms of Service.

3. The School Data

3.1  EduKit agrees that all rights, title and interest in and to the School Data (including any intellectual property rights in and to the School Data) are owned by the Partner School and this Agreement does not transfer any such rights to EduKit, except as set out in Clause 3.3 below. EduKit may only process School Data on the explicit instructions of the Partner School to perform the Services as set out in the relevant Booking Form.

3.2  The Partner School hereby grants EduKit a non-exclusive, royalty-free, worldwide licence for the Term of this Agreement to use the School Data for the purposes of the Agreement, subject to the terms of this Agreement. This may include, but is not limited to, accessing, viewing and producing statistics from the School Data, distributing the School Data to the Partner School and storing the School Data.

3.3 Partner School grants EduKit the right to anonymise the School Data to produce the Anonymised School Data and agrees to waive all rights to the Anonymised School Data. EduKit is the owner of the Anonymised School Data and may, at its sole discretion, use such data:

(a) to develop works or products including but not limited to reports, studies or comparable analyses (“Developed Works”);

(b) to conduct trend analyses; or

(c) to use the Anonymised School Data for any other purposes that further the goals of EduKit as set out in Recital (A) of this Agreement on the understanding that any School Data will be anonymised and that no pupils will be identifiable.

3.4  The Partner School represents and warrants that it has obtained all necessary consents and complied with the Data Protection Laws, in order for EduKit to use the School Data (in particular, the School Personal Data) as contemplated by this Agreement.

3.5  At any time, on demand in writing by the Partner School, and in any event on termination of this Agreement, EduKit will, within sixty (60) Business Days, use all commercially reasonable endeavours to, in EduKit’s sole discretion, either expunge or anonymise (to create Anonymised School Data) all the School Data provided to it from any computer, word processor or other device containing the School Data except any automatically generated back up files, provided that:

(a)  EduKit does not access such retained copies except for information technology purposes; and

(b)  EduKit will access such copies only as reasonably necessary for the performance of its information technology duties (e.g. for purposes of system recovery).

4. Protection of Personal Data

4.1 EduKit acknowledges and agrees that the School Data may include School Personal Data. In relation to School Personal Data, EduKit shall:

(a)  use or disclose the School Personal Data solely for the purposes of the Agreement as otherwise authorised or instructed by the Partner School (or any person appointed by the Partner School) in writing from time to time;

(b)  store, use and Process the School Personal Data in accordance with Data Protection Laws;

(c)  not transfer the School Personal Data outside of the European Economic Area, other than as authorised pursuant to this Agreement or as otherwise approved by the Partner School in writing from time to time and, if authorised, ensure that the transfer is made in accordance with, and the Parties have executed (and if not executed such terms will be deemed to have been executed), the Standard Contractual Clauses;

(d)  and, to the extent necessary to allow the Partner School to comply with the applicable Data Protection Laws:

(i)  assist the Partner School with any subject access requests which it may receive from pupils, or parents or guardians where the pupil is unable to act or has given their consent, to whom any of the School Personal Data relates;

(ii)  assist the Partner School with any requests it may receive from parents’ or legal guardians’ to access their child's educational record where relevant;

(iii)  carry out any reasonable request from the Partner School to amend, transfer or delete any of the School Personal Data;

(iv)  notify the Partner School about any legally binding request for disclosure of the School Personal Data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;

(v)  take adequate technical and organisational measures against unauthorised or unlawful Processing of, accidental loss or destruction of, or damage to, the School Personal Data, including without limitation to:

(A)  maintain the security and confidentiality of the School Personal Data; and

(B)  protect against reasonably anticipated threats or hazards to the security or integrity of the School Personal Data;

(vi)  provide adequate training to its relevant staff and ensure such staff will carry out the security measures and comply with the obligations of EduKit under this Agreement;

(vii)  notify the Partner School as soon as reasonably practicable after EduKit learns of any misappropriation or unauthorized access to, or disclosure or use of, the School Personal Data (collectively, "Security Breaches");

(viii)  promptly investigate each Security Breach that it becomes aware of or has reason to suspect may have occurred and, in the case of an actual Security Breach, provide assistance to the Partner School in connection with any reasonable investigation that the Partner School may desire to conduct with respect to such Security Breach; and

(ix)  implement any steps requested by the Partner School to limit, stop or otherwise remedy any actual or suspected Security Breach.

5. Confidentiality

5.1  Each Party receiving Confidential Information (the "Recipient Party") undertakes to the other Party (the "Disclosing Party") to:

(a)  hold all Confidential Information of the Disclosing Party which it obtains in relation to this Agreement in strict confidence;

(b)  not disclose, or authorise the disclosure of, the Disclosing Party's Confidential Information to any third party other than in accordance with this Clause 5;

(c)  not use, or authorise anyone to use, the Disclosing Party's Confidential Information for any purpose other than the performance of the Recipient Party's obligations or the exercise of its rights or the receipt of any benefits under this Agreement; and

(d)  promptly notify the Disclosing Party of any suspected or actual unauthorised use or disclosure of the Disclosing Party's Confidential Information of which the Recipient Party becomes aware and promptly take all reasonable steps that the Disclosing Party may require in order to prevent, stop or remedy the unauthorised use or disclosure.

5.2  Clause 5.1 shall not apply to Confidential Information to the extent that:

(a)  such Confidential Information has been placed in the public domain other than through the fault of the Recipient Party;

(b)  such Confidential Information has been independently developed by the Recipient Party without reference to the Confidential Information of the Disclosing Party; or

(c)  the Disclosing Party has approved in writing the particular use or disclosure of the Confidential Information.

5.3 Each Party may disclose the other Party's Confidential Information if, and to the extent that, it is required to do so by any governmental authority, court, relevant stock exchange or otherwise by all applicable laws, provided that, to the extent it is permitted to do so, it shall:

(a)  notify the other Party as soon as practicable upon becoming aware of the obligation to disclose and, to the extent that it is prevented from notifying the other Party, it shall use all reasonable endeavours to challenge any restriction on disclosure of the request to the other Party, which shall include applying to the court for the removal of such restriction where applicable; and

(b)  at the other Party's request, use all reasonable endeavours (where applicable, in cooperation with the other Party) to avoid or limit the disclosure and obtain assurances as to the confidentiality and use of the data from the body to whom the Confidential Information is to be disclosed.

6. Payment and Invoicing

6.1  In consideration of EduKit providing the Services, the Partner School will pay the Charges as set out in the applicable Booking Form.

6.2  EduKit may amend the Charges on an annual basis. In such case, EduKit shall give the Partner School three (3) months’ prior notice of such change in Charges. If the Partner School does not agree to the new Charges, it may terminate the relevant Booking Form by giving three (3) months' written notice to EduKit.

6.3  No Charges shall be payable under this Agreement other than as described in this Clause 6.1.

7. Termination

7.1  This Agreement commences on the Effective Date and will continue thereafter until terminated by either Party in accordance with Clause 7.2. In the event notice of termination of this Agreement is issued by one Party, the EduKit Terms of Service will remain applicable to any existing Booking Forms (with varying Booking Form Terms) until the last of the Booking Forms expires or is terminated.

7.2  Either Party may terminate this Agreement:

(a)  at any time on three (3) months’ written notice to the other Party; or

(b)  immediately by written notice to the other Party:

(i) if the other Party is in material breach of any of its obligations under this Agreement (whether repudiatory in nature or not) and either that breach is incapable of remedy or the other Party has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach;

(ii)  if the other Party suspends, or threatens to suspend, payments or cease business, or is unable to pay its debts as they fall due (or admits such inability), or an order is made, a petition is filed, a notice is given or a resolution passed in connection with the administration, winding-up or dissolution of the other Party, or if any other analogous procedure is taken in any jurisdiction (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other Party or steps are taken to appoint any such officer;

(iii)  if the other Party enters into negotiations with or proposes any composition or arrangement with any of its creditors with a view to rescheduling any of its indebtedness or anything analogous to the foregoing occurs in any applicable jurisdiction;

(iv)  if any expropriation, attachment, sequestration, distress or execution or any analogous process in any jurisdiction affects a substantial part of the assets and is not discharged within fourteen (14) days; or

(v)  the other Party is subject either to an enforcement action by any Regulator or ceases to be authorised under any applicable law which in either case prevents the other Party from lawfully performing its obligations under this Agreement.

8. Consequences of Termination

8.1 On termination of this Agreement for any reason:

(a)  Clause 3.5 shall apply in respect of the Personal Data;

(b)  subject to compliance by EduKit with Clause 3.5 in respect of the Personal Data, each Party will, if so requested, destroy or delete any copies of the other Party's Confidential Information and any of the other Party's data in its possession or the possession of its subcontractors; and

(c)  Clauses 2, 4, 5, 9 and 12 shall survive termination of this Agreement.

9. Limitation of Liability

9.1  Nothing in this Agreement shall exclude or limit the liability of either Party whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of, or in relation to, this Agreement for:

(a)  fraud (including fraudulent misrepresentation);

(b)  death or personal injury caused by its negligence; or

(c)  any other liability which cannot be excluded by any applicable law.

9.2  Subject to Clause 9.1, neither Party shall be liable for any indirect or consequential loss arising under or in relation to this Agreement whether as a result of breach of contract, tort (including negligence), breach of statutory duty or otherwise.

9.3  Subject to Clause 9.1, EduKit’s total aggregate liability, whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of, or in relation to, this Agreement shall be limited to the amount paid to EduKit by the Partner School in the twelve (12) months preceding the breach.

9.4 Neither Party shall be liable:

(a) for failure or delay in performing any of its obligations under or pursuant to this Agreement if such failure or delay is due to a Force Majeure Event; or

(b) for a breach of this Agreement to the extent directly caused by the act or omission of the other Party.

10. EduKit Subcontracting

10.1 The Partner School consents to EduKit's use of any of the subcontractors listed at Edukit Subcontractors, as amended and reissued from time to time by EduKit (the "Pre-Approved Subcontractors") for the provision of the Services.

11. Notices

11.1  Any notice or other communication required to be given under this Agreement shall be in writing and shall be delivered by email to the following email address: info@edukit.org.uk except for those notices set out in Clause 7.2, which shall be delivered in accordance with Clause 11.2 below.

11.2  Any notices or other communication given in respect of Clause 7.2 above shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to EduKit as set out below:

EduKit Solutions Ltd 

c/o Kingston Smith 

Devonshire House 

60 Goswell Road 

London 

EC1M 7AD

11.3  Any notice or other communication shall be deemed to have been duly received:

(a)  In respect of Clause 11.1, at the time the email enters the information system of the intended recipient, provided no error message indicating failure to deliver has been received by the sender; or

(b)  In respect of Clause 11.1:

(i)  If delivered personally, when left at the address and for the contact referred to in this clause; or

(ii)  If sent by pre-paid first-class post or recorded delivery, at 9.00am on the second Business Day after posting; or

(iii)  If delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.

11.4  The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12. General

12.1  The rights, powers, privileges and remedies provided in this Agreement are cumulative and are not exclusive of any rights, powers, privileges or remedies provided by law.

12.2  No delay or omission by any Party at any time to require performance of any provision of this Agreement shall affect its right to enforce such provision at a later time. A waiver of any right or remedy under this Agreement shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

12.3  The EduKit Terms of Service may be amended and reissued by EduKit from time to time. EduKit will notify the Partner School where changes to the EduKit Terms of Service have been made. The amended and reissued terms will apply to the Services as soon as notified to the Partner School.

12.4  Where any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction then such provision shall be deemed to be severed from this Agreement and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the Parties and, where permissible, that shall not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Agreement.

12.5  This Agreement sets out the entire agreement and understanding between the Parties in respect of the subject matter of this Agreement. Each Party acknowledges that it is not relying on, and shall have no remedies in respect of, any undertakings, representations, warranties, promises or assurances (whether made innocently or negligently) that are not expressly set forth in this Agreement. Nothing in this Agreement shall exclude any liability for or remedy in respect of fraud, including fraudulent misrepresentation prior to entering into this Agreement.

12.6  Except as set out in Clause 10, no Party shall assign, transfer, charge or otherwise deal with all or any of its rights under this Agreement nor grant, declare, create or dispose of any right or interest in it without the written consent of the other Party. The Partner School hereby consents to novation, assignment or transfer by EduKit of its rights and obligations under this Agreement to a third party that acquires EduKit in whole or in part to ensure continuity of service to the Partner School.

12.7  No third party shall have the right to enforce any provision of this Agreement as a third party beneficiary, including pursuant to the Contracts (Rights of Third Parties) Act 1999.

12.8  This Agreement may be executed in any number of counterparts. Each counterpart shall constitute an original of this Agreement but all the counterparts together shall constitute but one and the same instrument.

12.9  This Agreement and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.

12.10  The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any Disputes, and waive any objection to proceedings before such courts on the grounds of venue or on the grounds that such proceedings have been brought in an inappropriate forum. For the purposes of this Clause, "Dispute" means any dispute, controversy, claim or difference of whatever nature arising out of, relating to, or having any connection with this Agreement, including a dispute regarding the existence, formation, validity, interpretation, performance or termination of this Agreement or the consequences of its nullity and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with this Agreement

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