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THIS AGREEMENT is made by and between:

Pupil Progress Ltd, a limited liability company registered in England, No. 08986421, (“Pupil Progress”) and the Educational Establishment as stated on the authorised invoice or in the absence of an invoice then as stated in the account creation process and its Designated Administrative Users (“Customer”).

In consideration for the Charges and subject to Customer’s execution of Customer obligations detailed in this Agreement, Pupil Progress shall provide the Services detailed in this Agreement for the Subscription Period on the terms and conditions as herein stated.

1 Definitions

Acceptable Use Policy – Pupil Progress’ policy for acceptable use of Services that access the internet as defined in clause 2.4, which can be found at https://www.pupilprogress.com/acceptable-use-policy

Agreement – the Pupil Progress Terms of Service accepted upon the activation of a subscription, including any referenced documents within it and any Attachments.

APIs – Application programming interfaces Pupil Progress may provide which provide programming code to interface with and utilise the Services.

Attachments – attachments to this Agreement containing additional terms and conditions associated with Optional Services which are incorporated and made part of this Agreement when so agreed in writing between the two parties.

Business Days – Monday to Friday inclusive, excluding public holidays in the UK.

Business Hours – 09:00 to 17:00 UK time Monday to Friday inclusive, excluding public holidays in the UK.

Charges – fees for the provision of the Services under the terms of this Agreement.

Confidential Information – this Agreement, all Content, data, drawings, benchmark tests, specifications, trade secrets, object code and source code of any software, and any other proprietary information made available to Customer by Pupil Progress, including but not limited to all items marked as “Confidential” or “Proprietary”.

Content – any digital audio and visual information, documents, software, products, and services made available by Pupil Progress as part of the Services, including but not limited to the Platform and any and all smartphone applications (apps) made available by Pupil Progress.

Customer Data – all data, graphics, and information, including, without limitation, any hypertext links, scripts, recordings, sound, music, graphics or images that are created, installed, uploaded, or transferred in connection with the Services by Customer. Customer Data also includes information provided by Customer for account management purposes.

Data Controller (or Data Owner) – See section 7

Data Processing  – See section 7

Data Processing Agreement – the agreement between Pupil Progress and Customer that will be considered as Customer’s instructions as to how to process Customer Data, including Personal Data, which can be found at https://www.pupilprogress.com/data-processing-agreement.

Data Processor (or Data Supervisor) – See section 7

Data Subject – See section 7

Designated Administrative User – Individuals who are authorised representatives of the Educational Establishment and acting on its behalf.

Educational Establishment – the separate identifiable entity identified in Customer’s registered details. In a hard or soft federation, each individual establishment must be licensed separately.

Feedback – any and all suggestions, comments, improvements, or other feedback about the Services that Customer provides to Pupil Progress either directly or indirectly in any format or media.

Operational Services – services provided by Pupil Progress in setting up the Services for the use of Customer, and/or recurrent services during the Term.

Optional Services – other services, including without limitation enhanced support & maintenance, enhanced operational services, consultancy, implementation, training, data migration, advice or assistance which Pupil Progress may provide either for additional charge or without charge. Optional Services may be associated with additional terms and conditions.

Parental Users – Users who are accessing the Services in their capacity as parent / guardian / carer of one or more children at the Customer School.

Personal Data – See section 7

Platform / Pupil Progress Platform – the Pupil Progress core product accessed by Users through all webpages whose URL addresses start with the subdomain https://www.app.pupilprogress.com/

School – any school, academy, college, university, trust, or any other Educational Establishment.

Services – the provision of access to the Content, as detailed in the Terms of Service, together with services provided by Pupil Progress including Operational Services and Support & Maintenance services.

Staff Users – Users of the Services who are employed staff of the Customer, or acting in a professional capacity on behalf of the Customer and given access by the Customer on this basis.

Student Users - Users of the Services who are students at the Customer School.

Subscription Charge – the Charge for the provision of the Services for the Subscription Period.

Subscription Period – the period of time agreed for the provision of the Services in consideration for the Charges.

Support & Maintenance Services – Pupil Progress services provided in accordance with section 3 of this Agreement.

Term – the period from the start of the Subscription Period until the date of termination of the Agreement in accordance with section 9 of this Agreement.

Usage Data – information collected automatically from software applications provided by Pupil Progress as part of its delivery of the Services (or third party software applications utilised by Pupil Progress as part of its delivery of the Services), which can include: the IP addresses or domain names of the computers utilised by the Users who use the application, the URI addresses (Uniform Resource Identifier), the time of the request, the method utilised to submit the request to the server, the size of the file received in response, the numerical code indicating the status of the server’s answer (successful outcome, error, etc.), the country of origin, the features of the browser and the operating system utilised by the User, the various time details per visit (e.g., the time spent on each page within the application) and the details about the path followed within the application with special reference to the sequence of pages visited, and other parameters about the device operating system and/or the User’s IT environment.

User – an individual person using the Services as a result of being given access by the Customer, including Student Users, Parental Users, Staff Users, and Designated Administrative Users. 

2 Access and Use of Services

2.1        Access. Customer’s use of and access to Services and any Content provided as part of the Services is governed exclusively by this Agreement.

2.2        License Grant. Pupil Progress grants to Customer a temporary, non-transferable, limited, non-exclusive and revocable right to access and use the Content during the Term solely for the purpose of the administration of the Educational Establishment.

2.3        Limitations. The licence granted herein is granted solely to Customer for use by Users within the Educational Establishment, and not, by implication or otherwise, to any federated or affiliated Educational Establishment whether or not controlled by Customer. Customer may not provide access to the Services to any third party. Pupil Progress reserves all rights not expressly granted to Customer. Customer shall not copy, distribute, reproduce, use or allow access to the Services and/or Content, except as explicitly permitted under this Agreement. Customer shall not modify, adapt, translate, or prepare derivative works from the Services and/or Content and, to the extent permitted by applicable law, shall not, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services. Customer shall not remove, obscure, or alter Pupil Progress’ copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Services. Pupil Progress’ provision of Services hereunder does not constitute a distribution by Pupil Progress of any Content including any Pupil Progress proprietary or third party software.

2.4        Acceptable Use Policy. Pupil Progress’ policy for acceptable use is also part of and incorporated into this Agreement and applies to the Services. The policy can be found at: https://www.pupilprogress.com/acceptable-use-policy/. 

2.5        Trademarks. Neither party grants the other the right to use its trademarks, trade names, or other designations in any promotion, publication, or website without prior written consent or except as otherwise expressly provided for in this Agreement. The Customer logo and other trademarks, , trade names, or other designations may be used by Pupil Progress in its delivery of the Services to the Customer, including use of the Customer logo in Customer’s account on the Platform for the benefit of its own Users.

2.6        Priority. In the event of a conflict, the terms of Attachments shall prevail over these Terms of Service, the latest dated Attachment will prevail over an earlier version of an Attachment, and the applicable Terms of Service shall prevail over other parts of this Agreement, all except as may be expressly specified otherwise. Attachments are part of this Agreement only for those Services to which they apply.

2.7        Variation of Content. Pupil Progress reserves the right to update the Services and/or Content in order to enhance functionality, improve documentation, and implement corrective, preventive or perfective maintenance. Customer will be provided with appropriate notice of such changes.

3 Operational, Support & Optional Services

3.1        Operational Services. Certain services are provided by Pupil Progress as standard as part of the setup process and/or on a recurrent basis. Variations to or additions to these services may be accommodated as Optional Services.

3.2        Support & Maintenance Services. Pupil Progress will provide Customer with assistance with the resolution/correction of errors in the Services or the Content. Customer and its Staff Users may contact Pupil Progress for support. Where problems require software updates, these will normally be issued as part of the regular software update release cycle.

3.3       Onboarding Support. At the beginning of the Subscription Period, Pupil Progress will assist Customer and its Staff Users with problems encountered where Users attempt to configure the Services or the Content. This service is made available within Business Hours, and is limited to a maximum of 1 hour support within the first calendar month of the Subscription Period only. The amount of support can be extended at the discretion of Pupil Progress. This service is not a substitute for Users being familiar with the available documentation, or undergoing appropriate training. Additional support and/or training is available as an Optional Service.

3.4        Optional Services. Optional Services may be made available to Customer by Pupil Progress, either as part of the original Agreement, or as a Variation to the Agreement during the Subscription Period (in which case the Charges will also vary). Such Optional Services may consist of one or more of: (i) making available additional or enhanced functionality of the Services and/or Content in certain areas; (ii) assistance by Pupil Progress preparing the Services and/or Content for Customer use; (iii) training services; (iv) additional recurrent services relating to the operation of the service; and/or (v) enhanced support services. In the event that Pupil Progress agrees to provide Optional Services, such Services will be defined and be governed by additional terms and conditions which will be incorporated into these Agreement in the form of an Attachment.

4 Customer Obligations, Representations and Warranties

4.1        Obligations. Customer agrees to do all of the following: (i) comply with all applicable laws, rules and regulations, including those regarding data privacy, copyright, and export control, and the terms of this Agreement; (ii) use reasonable security precautions for providing access to the Services by its employees or other individuals to whom Customer provides access including private keys and other security options; (iii) cooperate with Pupil Progress’ reasonable investigation of outages, security problems, and any suspected breach of this Agreement; (iv) comply with all licence terms or terms of use for any software, content, service or website (including Content) (whether made available to Customer through the Services by Pupil Progress or a third party) Customer uses or accesses when using the Services; (v) prevent unauthorised access to or use of the Services and immediately notify Pupil Progress of any known or suspected unauthorised use of Customer’s account, the Services, or any other breach of security; (vi) be responsible for all activity occurring under Customer’s Users’ accounts.

4.2        Representations and Warranties. Customer represents and warrants that (i) it has the full power and authority to enter into this Agreement and to grant Pupil Progress the rights granted herein; (ii) Customer Data does not and shall not violate or infringe any intellectual property right of any third party; and (iii) Customer is acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services or this Agreement.

4.3        Confidentiality. Customer agrees not to use Pupil Progress’ Confidential Information except in connection with Customer’s authorised use of the Services. Customer agrees not to disclose Pupil Progress’ Confidential Information to any third person or party for a period of five (5) years following the termination or expiration of this Agreement except where the Confidential Information: (i) was in Customer’s possession prior to receipt from Pupil Progress; (ii) is publicly known or readily ascertainable by proper means; (iii) is rightfully received by Customer from a third party without a duty of confidentiality; (iv) is disclosed by Pupil Progress to a third party without a duty of confidentiality on the third party; (v) is independently developed or learned by Customer; or (vi) is disclosed by Customer with Pupil Progress’ prior written approval. Customer will provide reasonable prior notice to Pupil Progress and will request a protective order if Customer is required to reveal the Confidential Information under a subpoena, court order or other operation of law.

5 Price and Payment

5.1        Charges. Customer agrees to pay to Pupil Progress the Charges as specified or as revised in accordance with the terms of this Agreement. Pupil Progress shall invoice the initial Subscription Charge upon execution of the Agreement. Pupil Progress shall invoice the Subscription Charge for any Extension of the Subscription Period on the start date of the extension as detailed in clause 9.2.

5.2        Exclusion of VAT. Value Added Tax will be added to invoices at the rate then in force and shall be paid by Customer in addition to the agreed Charges.

5.3        Price Revisions. Pupil Progress reserves the right to increase Charges, such increases to be effective on any anniversary of the Agreement.

5.4        Payment Terms. All payments due under this Agreement shall be payable in pounds sterling in cleared funds into the bank account nominated by Pupil Progress by the due date stated in Pupil Progress’ relevant invoice, or within fourteen (14) days from the date of Pupil Progress’ relevant invoice. No counterclaim or set-off by Customer may be deducted from any payment due to Pupil Progress on any account whatsoever without the express prior written consent of Pupil Progress.

Bank account details:

Name: Pupil Progress Limited

Account: 63924586

Sort Code: 09-01-28

Bank: Santander

5.5        Payment is of the Essence. For the avoidance of doubt, failure to pay any sum due in accordance with this Agreement shall be deemed a material violation and the provisions of clause 9.4 (Termination of Service by Pupil Progress) may be invoked.

5.6        Further Recourse on Late Payment. Without prejudice to any other right or remedy available to Pupil Progress, if Customer fails to pay any sum due under this Agreement within the agreed period, Pupil Progress shall be entitled at its sole discretion to: (i) charge Customer interest (both before and after any judgement) and compensation on any overdue amounts at the rate laid down under the Late Payment of Commercial Debts Act 1998, as amended. Customer shall be responsible for all costs incurred by Pupil Progress in order to recover due payments, including without limitation all professional fees and legal costs; (ii) suspend all access to the Services by Customer until the payment is made. Customer Obligations, including without limitation payment obligations, are not affected by such a suspension. Following such a suspension, Pupil Progress may at its sole discretion require that Customer agrees to revised payment terms for the Charges prior to any resumption of access to the Services.

5.7        Disputed Invoices. In the event that Customer disputes an invoice it shall do so in writing providing proper details to Pupil Progress of the nature of and reason for the dispute within fourteen (14) days of receipt of the invoice. Customer shall not unreasonably dispute any invoice. Full details of the basis of the dispute shall be provided prior to payment of the invoice which must be made within the payment period provided for in this Agreement. Within fourteen (14) days of such notification, the parties will meet to resolve the matter. If the matter is not resolved at that meeting, the matter will be referred to the parties’ Managing Directors/CEOs. If notification of a dispute is not made in accordance with this clause 5.7, payment by Customer shall be deemed final.

5.8        Cancellations. Pupil Progress offers a free trial and Customer is advised to use this to see if the product meets expectations. At any point during the trial or at the end of the trial Customer may subscribe for a fixed term Subscription Period. If Customer wishes to cancel any subscription they must contact info@pupilprogress.com, with a request to cancel and a reason for the cancellation, within fourteen (14) days of activating the subscription. In this instance Customer’s account will be terminated and a full refund for any payments made for that period will be fully refunded. If a cancellation is requested after fourteen (14) days of activating the subscription, then Customer is required to pay the full subscription fee invoiced. Pupil Progress may ask for feedback and a reason for the cancellation to resolve the issue and to help support future customers; Customer does not have to give feedback unless they wish to and this does not affect their rights. In some circumstances, Pupil Progress may at its sole discretion decide to offer a goodwill reduction of the cost invoiced, commensurate with the period the subscription has been active for.

6 Content, Feedback and Customer Data

6.1        Content. Pupil Progress and its licensors retain all right, title, and interest in the Services and/or the Content. In the event that Pupil Progress agrees to provide customisations to the Services and/or Content, whether or not specifically commissioned by Customer, Pupil Progress and its licensors retain all right, title, and interest in such customisations.

6.2        Feedback. Pupil Progress shall own all right, title and interest in and to the Feedback. Customer hereby irrevocably assigns to Pupil Progress all right, title, and interest in and to the Feedback and agrees to provide Pupil Progress with any assistance Pupil Progress may request to document, perfect, and maintain Pupil Progress’ rights in the Feedback.

6.3        Customer Data. Customer retains all right, title, and interest in Customer Data. By any party using Customer’s account and adding, creating, installing, uploading, or transferring Customer Data for use in conjunction with the Services, Customer grants Pupil Progress, its hosting Platform and any other software utilised in the delivery of the Services a non-exclusive, royalty-free, paid-up, transferable licence and approval to host, cache, copy, and display Customer Data, for the purpose of and in conjunction with providing the Services for the term of this Agreement. Customer represents that Customer has and will keep in effect during Customer’s use of the Services, all licences and approvals necessary to grant Pupil Progress and its hosting Platform and any other software utilised in the delivery of the Services these rights and that they will be provided at no charge to Pupil Progress. Customer is responsible for complying with the terms of any such licence agreements including entitlements and permitted uses. Customer represents that by adding, creating, installing, uploading, or transferring Customer Data, or using APIs to do any of the foregoing, for use in conjunction with the Services, Customer is not exceeding any specified entitlement or permitted use or violating applicable licence agreements or applicable laws. Customer agrees to reimburse Pupil Progress for any reasonable costs and other amounts that Pupil Progress may incur from Customer’s failure to obtain these licences or approvals.

6.4        Customer Data Responsibilities. Customer is responsible for all Customer Data, including selection, creation, design, usage, licensing, maintenance, testing, backup, and support. Customer is also responsible for any Personal Data or any information Customer considers confidential that is included in Customer Data. Customer acknowledges that Pupil Progress does not control the transfer of data over telecommunications facilities, including the internet. Pupil Progress will continue to process Personal Data under the instructions set out in the Data Processing Agreement and under their responsibilities under UK data protection legislation.

6.5        Customer Data Confidentiality. Where Customer Data is clearly identified as confidential, Pupil Progress will:

6.5.a. use the same care and discretion to avoid disclosure of such information as it uses to avoid disclosure of its own similar Confidential Information;

6.5.b. disclose such information only to its employees or employees who have a need to know to provide the Services; and

6.5.c. disclose such information only to subcontractors who have a need to know to provide the Services and Pupil Progress will have appropriate agreements in place with its subcontractors to meet the confidentiality obligations as set forth in this Agreement. Pupil Progress may disclose such information to the extent required by law. However, Pupil Progress will, to the extent possible, give Customer prompt notice to allow Customer a reasonable opportunity to obtain a protective order. Pupil Progress will continue to process Personal Data under the instructions set out in the Data Processing Agreement and under their responsibilities under UK data protection legislation.

6.6       Limitations of Obligations for Confidentiality. Pupil Progress is under no obligation for any information or data Customer identifies as confidential that is:

6.6.a. already in Pupil Progress’ possession without obligation of confidentiality;

6.6.b. developed independently;

6.6.c. obtained from a source other than the exposure during the provision of the Services without obligation of confidentiality;

6.6.d. publicly available through no fault of Pupil Progress; or

6.6.e. disclosed by Customer to another without obligation of confidentiality.

6.7        Freedom of Memories. Pupil Progress is free to use in its business activities the ideas, concepts and know-how contained in any Customer Data which are retained in the memories of Pupil Progress employees who have had access to such information during the performance of the Services. Pupil Progress will continue to process Personal Data under the instructions set out in the Data Processing Agreement and under their responsibilities under UK data protection legislation.

7 Privacy

7.1        Compliance with Law. Both parties warrant that they will duly observe all their obligations under the Data Protection Act 2018 as amended. In this Agreement “Personal Data”, “Data Controller”, “Data Processor” and “Data Processing” shall be understood in their meanings as assigned by the Data Protection Act 2018 as amended. In addition in this section 7 the terms “Process” and “Processing” shall be understood in their meanings as assigned by the Data Protection Act 2018 as amended. Pupil Progress Ltd is registered with the Information Commissioner’s Office (ICO) under the registration reference ZA226391 and organisation name www.pupilprogress.com.

7.2        Data Controller. Customer is and shall remain the Data Controller of Customer Data it uploads or provides as part of the Services. Pupil Progress is a service provider to Customer and has the role of Data Processor. Pupil Progress does not own or otherwise act as Data Controller of Customer Data. It is Customer's responsibility to verify that the security and privacy protections offered by the Services are adequate and in compliance with all applicable laws governing the type of data included in Customer Data which is uploaded in or provided to the Services.

7.3        Data Processing. Without limitation to clauses 7.1 or 7.2, if Customer passes to Pupil Progress, or otherwise gives Pupil Progress access to, Personal Data under this Agreement:

7.3 (a) Pupil Progress will not Process Personal Data held by it under this Agreement except in accordance with this Agreement or otherwise on the instructions of Customer.

7.3 (b) Pupil Progress will acquire no rights or interest in the Personal Data and will return such Personal Data to Customer on demand.

7.3 (c) Pupil Progress will 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.

7.3 (d) Pupil Progress will ensure that its employees will maintain proper records of the Processing of any Personal Data received from Customer or from any third party on behalf of Customer.

7.3 (e) Pupil Progress will not transfer Customer Data, including Personal Data, outside of the United Kingdom without written approval of Customer. If Customer is based outside the UK and enters into this Agreement this will be taken as written consent to transfer Customer Data outside the UK in order to provide access for Customer to the services provided by Pupil Progress.

7.3 (f)  Pupil Progress will continue to process Personal Data under the instructions set out in the Data Processing Agreement and under their responsibilities under UK data protection legislation.

7.4        Collection of Personal Data. Customer’s access to the Services may be via Pupil Progress-controlled webpages which comprise the Platform (under the subdomain https://app.pupilprogress.com/). Collection and processing of Personal Data as such is governed by this Agreement and by the Data Processing Agreement. 

Customer’s interaction with Pupil Progress-controlled webpages which are not within the Platform (including but not limited to other sections of the domain https://app.pupilprogress.com/), and any Personal Data that may be collected by them, is governed by the Pupil Progress Privacy Policy  https://www.pupilprogress.com/privacy-policy/ rather than this Agreement and the Data Processing Agreement.

8 Warranties & Disclaimers

8.1        Warranties & Disclaimers. Pupil Progress does not warrant that the Service will be uninterrupted, error-free, or completely secure. Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of Customer privacy, Customer Data, and/or property. Pupil Progress has no obligation to provide security other than as stated in this Agreement. To the extent permitted by law, Pupil Progress disclaims any and all warranties, statutory or otherwise, not expressly stated in this Agreement, including the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.

8.2        Suppliers and subcontractors disclaimers. The disclaimers of this section 8 apply also to any suppliers and subcontractors of Pupil Progress.

9 Term, Termination & Suspension

9.1        Term. This Agreement comes into force and effect upon the activation of a subscription. Pupil Progress will make available the Services for use for the Subscription Period in accordance with the terms and conditions of this Agreement, unless terminated earlier in accordance with the provisions of this section 9.

9.2        Extension of Subscription Period. The Subscription Period may be extended at any time by mutual agreement with written notice between Pupil Progress and Customer, and in any case will be extended automatically at the end of the Subscription Period for a successive additional 12 month period unless either party provides two months written notice to the other that that party does not wish the Subscription Period to so extend. Any extension of the Subscription Period will have the effect of also extending the Term of this Agreement in accordance with clause 9.1.

9.3       Data Retention. Any Customer Data entered into the Services by Customer, and any customisations made to the services by or for Customer, during the period of the Agreement will be permanently lost at the end of the agreed retention period stated in the Data Processing Agreement. Customer must export its content before termination or the entered data will be permanently lost.

9.4        Termination of the Services by Pupil Progress. Pupil Progress may terminate Customer’s access to Services, in whole or in part, or prevent access to any new Services if; (i) in Pupil Progress’ sole discretion there is an emergency situation, including but not limited to breach of security; (ii) continued provision of Services, in whole or in part or Customer’s use of Services in whole or in part may cause Pupil Progress to violate any law, rule, regulation, governmental policy, or court order; (iii) use of Services in whole or in part, is inconsistent with a contractual commitment or intellectual property right of a third party; (iv) Customer materially violates the terms of this Agreement; or (v) there is a material violation by Customer of the provisions of any documents referred to and included as part of this Agreement including the Data Processing Agreement, Acceptable Use Policy, Privacy Policy or any Attachments. For the purposes of this Agreement, a “material violation” may consist of a single event, or of a pattern of violations over a period which together constitute a material violation.

9.5        Suspected Violations. Pupil Progress reserves the right to investigate complaints relating to use of the Services by Customer, Users, or someone using Services associated with Customer’s account, or any potential violation of the terms and conditions of this Agreement (including but not limited to the provisions of any documents referred to and included as part of this Agreement including the Data Processing Agreement, Acceptable Use Policy, Privacy Policy or any Attachments). Notwithstanding any other terms, conditions, policies, or other rights available, Pupil Progress may take any action it deems appropriate, including without limitation, disclosing information to enforcement agencies. In addition to any other remedies available to it, Pupil Progress reserves the right to:

9.5 (a) restrict Customer’s access to or terminate any of the Services, as described above;

9.5 (b) require the removal of offending Customer Data; or

9.5 (c) exercise other rights and remedies available at law or in equity.

9.6        Customer action. Except for an emergency as determined by Pupil Progress or as may otherwise be required by law, before undertaking the remedies described in clauses 9.4 (Termination of Services by Pupil Progress) and 9.5 (Suspected Violations), Pupil Progress will attempt to notify Customer by any reasonable practical means under the circumstances. Customer is required to immediately backup Customer Data or, where possible, demonstrate to Pupil Progress that the violation has been remedied. Customer must take such action at most within three (3) business days.

9.7        Termination by Customer. Customer may terminate this Agreement by serving thirty (30) days written notice of termination in advance if Pupil Progress repeatedly fails to observe or perform any serious material term or condition of this Agreement, including any Attachment, and such breach (if capable of remedy) continues for thirty (30) days after receipt of a written notice from Customer specifying the breach and requiring the same to be remedied.

9.8        Survival. Any terms of this Agreement that by their nature extend beyond the termination of Services remain in effect until fulfilled, and apply to both parties’ respective successors and assignees.

10 Indemnity

10.1     Defence from Claims. Customer agrees to defend Pupil Progress and its subcontractors at Customer’s expense, and pay all costs, damages, and reasonable legal or attorneys’ fees that a court finally awards (or which Customer agrees to in any final settlement) for any third party claim arising out of or related to acts or omissions by Customer or any entity using Customer’s Account related to (i) Customer Data (ii) use of the Services or Content in combination with other facilities or services or (iii) any violation of this Agreement, including but not limited to the provisions of any documents referred to and included as part of this Agreement including the Data Processing Agreement, Acceptable Use Policy, Privacy Policy or any Attachments.

10.2     Notification and Cooperation by Pupil Progress. For indemnification under this section 10, Pupil Progress must:

10.2 (a) promptly notify Customer in writing of the claim; and

102 (b) allow Customer to control, and reasonably cooperate with Customer in, the defence and any related settlement negotiations.

10.3     Notification and Cooperation by Customer. Customer agrees to promptly notify Pupil Progress of any event or circumstance related to Services, Customer Data or Customer’s use of Services (whether by act or omission), that Customer becomes aware of which could lead to a claim or demand against Pupil Progress. Customer agrees to provide all relevant information relating to such event or circumstance to Pupil Progress at Pupil Progress’ request.

11 Limitation of Liability

11.1     No Reliance on Other Conditions, Warranties or Representations by Customer. Save as expressly provided in this Agreement there are no other conditions, non-fraudulent warranties or representations (express or implied) with respect to the Services and/or Content and any warranty or representation implied by law are expressly excluded to the maximum extent permitted by law. Customer expressly affirms that it is not relying on any non-fraudulent warranty, condition or representation not contained or referenced in the Agreement.

11.2     No Other Conditions, Warranties or Representations by Pupil Progress. Except as expressly set forth in this agreement, Pupil Progress makes no warranties or representations, express or implied, in fact or in law, with reference to delivery of the Services and it is expressly agreed that there is no warranty of satisfactory quality, merchantability or non- infringement or fitness for a particular purpose, express or implied, given by Pupil Progress with reference to the Services and/or Content.

11.3     Specific Limitations. Under no circumstances is Pupil Progress, its suppliers or subcontractors liable for any of the following even if informed of their possibility:

11.3 (a) Loss of, or damage to, Customer Data;

11.3 (b) special, incidental, exemplary, or indirect damages or consequential damages; or

11.3 (c) wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.

11.4     Limitation of Total Liability. In no event will the liability of Pupil Progress or any of its suppliers or subcontractors for actual direct damages arising out of this agreement or the use or performance of the Services exceed the actual Charges by Pupil Progress to Customer for the year previous to the event giving rise to the claim. Customer acknowledges and agrees that any action for recovery of costs and damages is to be made against Pupil Progress, and not its suppliers and subcontractors, but that the limitation detailed in this clause is the maximum for which Pupil Progress and its suppliers and subcontractors are collectively responsible.

11.5     Exclusion to Limitation of Liability. Damages for bodily injury (including death), and damage to real property and tangible personal property for which Pupil Progress is legally liable are not subject to a cap on the amount of damages.

11.6     Limitation of Period for Legal Action. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: (i) neither party will bring a legal action, regardless of form, arising out of or related to this Agreement or the Services more than two years after the cause of action arose; and (ii) after such time limit, any legal action arising out of this Agreement or the Services and all respective rights related to any such action lapse.

12 Dispute Resolution

12.1     Reasonable Endeavours. The parties will use all reasonable endeavours to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement, or any breach of it.

12.2     Escalation of Representatives. If any such dispute cannot be settled amicably within ten (10) working days through negotiations at the level at which meetings are usually held, then the dispute shall be referred to the senior representatives nominated by the Managing Director or Chief Executive Officer of each party who will meet in good faith within ten (10) working days in order to try to resolve the dispute.

12.3     Structured Negotiations. If the dispute or difference is not resolved as a result of the meeting of the senior representatives, either party may (at such meeting or within ten (10) working days of its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor or mediator before resorting to litigation.

12.4     Freedom to Commence Proceedings. Nothing contained herein shall restrict either party’s freedom to commence legal proceedings before any competent court to preserve any legal right or remedy or protect any proprietary right or trade secret.

13 General

13.1     Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Pupil Progress. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.2     Notices. All notices required to be sent hereunder to Pupil Progress shall be in writing and shall be deemed to have been given three (3) Business Days after being mailed by first class mail to the addresses listed above, or shall be deemed to have been given immediately during Business Hours or at the start of the next Business Day if outside of Business Hours on sending an email to the other party’s correct business email address. Pupil Progress’s correct business email address is info@pupilprogress.com. Unless otherwise advised, Pupil Progress will send notices to Customer to the Designated Administrative User’s registered email address as the correct business email address, and may additionally send notices to other appropriate email addresses including but not limited to (i) other Designated Administrative Users, (ii) the Customer’s Data Protection Officer in relation to any data protection matters, (iii) the Headteacher or other Senior Leader of any Customer which is a School, (iv) the Senior Management of any Customer which is an Academic Trust or other corporate entity, and (v) the primary contact email address as stated publicly on Customer’s website. Subject to the foregoing, Customer and Pupil Progress consent to the use of electronic means including email to send and receive communications in connection with our business relationship arising out of this Agreement, and such communications are acceptable as a signed writing.

13.3     Severability. If any provision of this Agreement is held to be invalid or unenforceable, but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable consistent with its objective. In any case, the remaining provisions of this Agreement remain in full force and effect.

13.4     Purchase Orders. In the event that Customer issues purchase orders which refer to the Services, or Content or any part thereof, such purchase orders shall be regarded as for the administrative convenience of Customer only, and any terms and conditions attached to such purchase orders shall not form part of this Agreement nor be regarded as superseding this Agreement.

13.5     Force Majeure. Neither Pupil Progress nor Customer shall be held liable to the other or be held in breach of this Agreement if prevented, hindered or delayed in the performance or observance of its obligations hereunder resulting from acts beyond the reasonable control of the party concerned.

13.6     Waiver. The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.

13.7     Rights of Third Parties. Unless expressly provided in this Agreement, no express term of this Agreement or any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

13.8     Publicity. Pupil Progress may cite Customer publicly as one of its customers (along with a brief description of the services provided), use the logo of the Customer in its sales and marketing material including on its website, issue press releases concerning Customer’s use of the services, hyperlink to Customer website, use materials produced under this Agreement in funding applications, proposals, case studies or award competitions and/or use such materials in its investor relations material without further reference to Customer. All consents and licence granted under this clause 13.8 may be withdrawn by the Customer at any time by giving written notice.

13.9     Non-solicitation. Each Party agrees it shall not employ or solicit the employment, directly, or indirectly, of any of the other Party’s employees or contractors during the period of this Agreement and for a period of six (6) months thereafter, without the express written approval of the other.

13.10   No Agency. This Agreement and Services provided under it do not create an agency, joint venture, or partnership between Customer and Pupil Progress. Each party is free to enter into similar agreements with others to develop, acquire or provide competitive services.

13.11   Compliance with Laws. Pupil Progress will comply with laws applicable to Pupil Progress generally as a provider of information technology services. Pupil Progress is not performing Customer’s regulatory or management obligations and is not responsible for determining the requirements of laws applicable to Customer’s business, including those relating to Services hereunder. Customer is responsible for complying with laws, rules, and regulations that may be applicable to Customer Data and Customer’s use of the Services. Customer agrees not to place or allow any Customer Data within the Services that require any specific legal or regulatory compliance by Pupil Progress except as expressly stated in the Agreement.

13.12   Entire Agreement. This Agreement shall constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Nothing in this item shall have the effect of excluding or limiting liability for fraud. This Agreement may not be modified or amended except in writing authorised by a duly authorised representative of each party. Notwithstanding anything in this Agreement to the contrary, neither party is obligated to take any action that would violate applicable law.

13.13 Governing Law and Jurisdiction. This Agreement shall be subject to, governed by, and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English Courts.