APPLICATION SOFTWARE PROVISION (ASP)
TERMS AND CONDITIONS FOR THE ACCESS TO AND USE OF WHISPER™ SOFTWARE SERVICES PROVIDED BY
THE SOUTH WEST GRID FOR LEARNING TRUST ("SWGFLT") TO SCHOOLS
SWGFLT is a charitable trust established amongst other things to advance education and or advance health and the saving of lives though any means relating to the effective and safe use of information and communication technologies.
In furtherance of those objects SWGFLT has designed and provides an ASP service consisting of internet access to the machine readable functionality of a proprietary reporting and issue alert software known as Whisper™, together with supplying related copyright material intended for use by Schools when using the Whisper Service both of which are more particularly described in the Whisper Service Specification which can be viewed at www.swgflwhisper.org.uk/About/FAQs.
These terms and conditions set out the basis on which SWGFLT is willing to provide the Whisper Service and the Whisper Materials to any given School that applies to subscribe for the Whisper Service via its website at www.swgflwhisper.org.uk.
SWGFLT will only accept an application from a School to subscribe for the Whisper Service if it accepts these terms and conditions.
1.1 The definitions and rules of interpretation in this clause apply in this agreement and the background.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5.
Maintenance: any error corrections, updates and upgrades that SWGFLT may provide or perform with respect to the Whisper Service from time to time.
Normal Business Hours: 6.00 am to 6.00 pm local UK time, each Business Day.
School: any educational establishment falling within the ordinary and natural meaning of a school in the UK.
School Data: the data inputted into the information fields of the Whisper Service by the School, by the School's User Community, or by SWGFLT on the School's behalf.
School's User Community: those persons that the School enables to use the Whisper Service by virtue of the School subscribing to it.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Whisper Service: the making available in machine-readable object code form only of SWGFLT's proprietary software known as Whisper, including any access to any error corrections, updates, upgrades, modifications and enhancements to it provided to the School by SWGFLT at its entire discretion under this agreement from time to time such service including (a) a facility for the School to set up and configure the Whisper Service by internet access to the Whisper Site and (b) the facility intended to enable the School's User Community to access and use the Whisper Service to the extent described in the Whisper Service Specification and (c) the making available of Whisper Materials.
Whisper Service Fees: the fees payable for the Whisper Service by the School as set out from time to time at http://www.swgflstore.com/products/swgfl-whisper
Whisper Materials: copyright material made available by SWGFLT for a School when it subscribes for the Whisper Service.
Whisper Service Specification: the functionality and performance specifications for the Whisper Service, as set out from time to time at www.swgflwhisper.org.uk/About/FAQs.
Whisper Site: the URL at which the Whisper Service can be accessed namely www.swgflwhisper.org.uk or such other URL established or provided by SWGFLT for that purpose from time to time.
1.2 Reference to this agreement are to the contract for the provision of the Whisper Service and any Whisper Materials made between SWGFLT and the School of which these terms and conditions form part.
1.3 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes faxes and e-mail but not text messages.
1.9 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
2. PROVISION OF THE WHISPER SERVICES
2.1 SWGFLT agrees to provide the Whisper Service to the School, subject to payment of the Whisper Service Fees and to the terms and conditions set out herein.
2.2 The service level targets for Whisper Services are dependent on services level targets of SWGFLT's third party service providers which can be viewed at http://www.memset.com/about-us/service.php. SWGFLT will maintain reasonable service level targets in addition to those provided by its third party service providers. These service levels are statements of intention only given in good faith but are not contractual obligations to meet these targets. The School acknowledges this clause is reasonable given the amount it pays for the Whisper Service.
2.3 SWGFLT has the right to suspend the Whisper Service at any time for essential Maintenance without prior notice and for routine Maintenance on reasonable prior notice of not less than 5 Business Days.
2.4 The School has the right to define the nature and extent of its own School's User Community provided always that it is agreed and accepted:
(a) as between the School and SWGFLT the School takes sole responsibility for any acts and omissions of the School's User Community that would, were they an act or omission of the School, breach this agreement; and
(b) the School (and for the avoidance of doubt not SWGFLT) shall be the visible and communication interface with the School's User Community (save as otherwise required by law).
2.5 In relation to the Whisper Service:
(a) SWGFLT hereby grants to the School a non-exclusive, non-transferable licence to:
(i) configure the School's website using the tools provided for that purpose by SWGFLT as part of the Whisper Service at www.swgflwhisper.org.uk/About/FAQs;
(ii) access and use of the Whisper Services in the ordinary course of the School's life to enable it and the School's User Community to enjoy the functionality described in the Whisper Service Specification; and
(iii) use and reproduce the Whisper Materials solely in the ordinary course of the School's life and for the purpose for which they were designed.
(b) Subject to clause 2.6 the School shall not through its exercise of the licence in clause 2.5 (b) store, distribute or transmit any Virus, or any material when utilising the Whisper Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or facilitates illegal activity; or depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(c) the School will make it a condition of use of the Whisper Service for all members of the School's User Community that all such persons comply with clause 2.5 (b) as if their name were substituted for the School's name in that clause and will if required by SWGFLT take all reasonable steps within its power to ensure compliance with this obligation;
(d) the rights provided under this clause 2.5 are granted to the School only, and shall not be considered granted to any other school or grouping of schools or other person or any subsidiary or holding company of the School or any local education authority;
(e) the School shall not:
(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Whisper Service or the Whisper Materials except to the extent expressly set out in this agreement or as described in the Whisper Service Specification or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software used to deliver the Whisper Service, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(iii) access all or any part of the Whisper Service in order to build a product or service which competes with the Whisper Service and/or the Services; or
(iv) use the Whisper Service to provide services to third parties save for the purposes expressly contemplated by the nature of the Whisper Service; or
(v) subject to clause 17.1, transfer, temporarily or permanently, any of its rights under this agreement, or
(vi) attempt to obtain, or assist third parties in obtaining, access to the Whisper Service, other than as provided under this clause 2.5(e); and
(f) the School shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Whisper Service and shall notify SWGFLT promptly of any such unauthorised access or use.
(g) the School shall use reasonable endeavours to prevent any denial of service attack on the Whisper Service and spamming of it and shall notify SWGFLT promptly of any such unauthorised activity.
(h) SWGFLT retains the right but not the obligation to take measures to attempt to block or suspend access to the Whisper Service from any part of the School's User Community that it believes is engaged in any of the conduct described in sub clause 2.5 (b)(f) and (g) or is otherwise abusing it in any way whatsoever.
(i) the word Whisper and its related logo are trade marks of SWGFLT in relation to the Whisper Service and Whisper Materials that the School may only use as part of its use of the Whisper Service under the terms of this agreement. The School acknowledges that SWGFLT is the owner of the Whisper trade mark and that any goodwill derived from the use of the Whisper trade mark by the School shall accrue to SWGFLT in its entirety.
2.6 Clause 2.5(b) shall not be breached by virtue of a report having been made for the attention of the School of an issue raised by an member of the School's User Community though the reporting facility which forms part of the core functionality and purpose of the Whisper Service.
3. SCHOOL DATA
3.1 The School shall own all rights, title and interest in and to all of the School Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the School Data.
3.2 SWGFLT shall follow its procedures for processing School Data as described in the Whisper Service Specification.
3.3 SWGFLT shall not be responsible for any loss, destruction, alteration or disclosure of School Data caused by any third party (except those third parties sub-contracted by SWGFLT to perform services related to School Data, Maintenance and back-up).
4. DATA PROTECTION
4.1 If and when SWGFLT processes any personal data on the School’s behalf when performing its obligations under this agreement, the parties record their intention that the School shall be the data controller and SWGFLT shall be a data processor and in any such case:
(a) the School shall ensure that the School is entitled to transfer the relevant personal data to SWGFLT so that SWGFLT may lawfully process the personal data in accordance with this agreement on the School’s behalf;
(b) SWGFLT shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the School from time to time; and
(c) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
4.2 The School shall ensure that it fulfils its legal responsibilities under data protection law in connection with obtaining controlling and/or processing personal data from the School's User Community pursuant to this agreement.
5. SWGFLT'S OBLIGATIONS
5.1 SWGFLT undertakes that the Services will be performed substantially in accordance with the Whisper Service Specification and with reasonable skill and care.
5.2 The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Whisper Service contrary to SWGFLT's recommendations or instructions or modification or alteration of the Whisper Service by any party other than SWGFLT or SWGFLT's duly authorised contractors or agents.
5.3 If the Whisper Service does not conform with the foregoing undertaking, SWGFLT will, at its own expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the School's sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, SWGFLT does not warrant that the School’s use of the Whisper Service will be uninterrupted or error-free.
6. SCHOOL'S OBLIGATIONS AND ACKNOWLEDGEMENT
6.1 The School shall provide SWGFLT with:
(a) all necessary co-operation in relation to this agreement; and
(b) all necessary access to such information
as may be reasonably required by SWGFLT in order to render the Whisper Service, including but not limited to co-operation and information relating to School Data, security access information and details of interfaces to the School's other ICT applications.
6.2 The School shall comply with all applicable laws and regulations with respect to its activities under this agreement.
6.3 The School acknowledges and accepts that the Whisper Service is simply an additional tool which it may decide to use in the ordinary course of its business and is not in substitution for all and any safeguarding or other information management tools techniques or other measures that it may otherwise have available to it or be required to implement by law to fulfil any of its legal duties.
7. CHARGES AND PAYMENT
7.1 The School shall pay the Whisper Service Fees via the payment mechanism at http://www.swgflstore.com/products/swgfl-whisper or if it has elected to receive it as part of subscribing to and paying for SWGFLT's BOOST Service together with any applicable value added tax, which shall be added to SWGFLT's invoice(s) at the appropriate rate.
8. PROPRIETARY RIGHTS
8.1 The School acknowledges and agrees that SWGFLT and/or its licensors own all intellectual property rights in the Whisper Service. Except as expressly stated herein, this agreement does not grant the School any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), domain names, or any other rights or licences in respect of the Whisper Service, the Whisper Materials or any related documentation.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party; or
(b) was in the other party's lawful possession before the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
9.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its officers, governors, trustees, employees, sub-contractors or agents in violation of the terms of this agreement.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.5 The School acknowledges that the Whisper Service, the results of any performance tests of the Whisper Service and any reports or data analysis undertaken by SWGFLT of trends or themes drawn from School Data constitute SWGFLT's Confidential Information.
9.6 SWGFLT acknowledges that subject to clause 9.5 the School Data is the Confidential Information of the School.
9.7 This clause 9 shall survive termination of this agreement, however arising.
10.1 The School shall defend, indemnify and hold harmless SWGFLT against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the School's use of the Whisper Service or Services, provided that:
(a) the School is given prompt notice of any such claim;
(b) SWGFLT provides reasonable co-operation to the School in the defence and settlement of such claim, at the School's expense; and
(c) the School is given sole authority to defend or settle the claim.
10.2 SWGFLT shall defend the School, its officers, governors, trustees and employees against any claim that the Whisper Service infringes any United Kingdom patent effective as of the date on which the School first uses the Whisper Service or any copyright, trademark, database right or right of confidentiality embodied in the Whisper Service and or the Whisper Materials, and shall indemnify the School for any amounts awarded against the School in judgment or settlement of such claims, provided that:
(a) SWGFLT is given prompt notice of any such claim;
(b) the School provides reasonable co-operation to SWGFLT in the defence and settlement of such claim, at SWGFLT's expense; and
(c) SWGFLT is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of the claim, SWGFLT may obtain for the School the right to continue using the Whisper Service and or the Whisper Materials (as the context requires), to replace or modify the Whisper Service and or the Whisper Materials so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement without liability to the School. SWGFLT shall have no liability if the alleged infringement is based on:
(a) a modification of the Whisper Service and or the Whisper Materials by anyone other than SWGFLT; or
(b) the School's use of the Whisper Service and or the Whisper Materials in a manner contrary to the instructions given to the School by SWGFLT; or
(c) the School's use of the Whisper Service and or the Whisper Materials after notice of the alleged or actual infringement from SWGFLT or any appropriate authority.
10.4 The foregoing and clause 11.4(b) states the School’s sole and exclusive rights and remedies, and SWGFLT’s entire obligations and liability, for patent, copyright, trademark, database or right of confidentiality infringement.
11. LIMITATION OF LIABILITY
11.1 This clause 11 sets out the entire financial liability of SWGFLT (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the School:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the School of the Whisper Service and or the Whisper Materials or any part of the same in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
11.2 Except as expressly and specifically provided in this agreement:
(a) the School assumes sole responsibility for acting on any reports received by it through use of the Whisper Service by the School's User Community:
(b) the School assumes sole responsibility for results obtained from the use of the Whisper Service by the School, and for conclusions drawn from such use.
(c) SWGFLT shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to SWGFLT by the School in connection with the Services, or any actions taken by SWGFLT at the School's direction; and
(d) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
11.3 Nothing in this agreement excludes the liability of SWGFLT:
(a) for death or personal injury caused by SWGFLT's negligence; or
(b) for fraud or fraudulent misrepresentation.
11.4 Subject to clause 11.3:
(a) SWGFLT shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) SWGFLT's total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to whichever is the higher of £500.00 OR the price paid for the Whisper Services during the 12 months preceding the date on which the claim arose.
12.1 The licence in clause 2.5 starts when the School has paid in full its Whisper Service Fee for the period stated in SWGFLT's then current licence fee table located at http://www.swgflstore.com/products/swgfl-whisper and lasts for the period applicable to that fee as stated in that table subject always to clause 12.2 and 13 below.
12.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the licence in clause 2.5 without liability to the other if:
(a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to such other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of such other party, or notice of intention to appoint an administrator is given by such other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of such other party, or if any other person takes possession of or sells such other party's assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.
12.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
(c) SWGFLT may destroy or otherwise dispose of any of the School Data in its possession unless SWGFLT receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the School of the then most recent back-up of the School Data. SWGFLT shall use reasonable commercial endeavours to deliver the back-up to the School within 30 days of its receipt of such a written request, provided that the School has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The School shall pay all reasonable expenses incurred by SWGFLT in returning or disposing of School Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of SWGFLT or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one month, the party not affected may terminate the licence and use of the Whisper Service by giving 30 days' written notice to the other party.
14.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
14.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
15.1 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 shall remain in force.
15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16. ENTIRE AGREEMENT
16.1 This agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
16.2 Each party acknowledges that, in entering into this agreement and the documents referred to in it, it has not relied and does not rely on any statement, representation (whether innocent or negligent), assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents.
16.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
16.4 Nothing in this clause shall limit or exclude any liability for fraud.
17.1 The School shall not, without the prior written consent of SWGFLT, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.2 SWGFLT may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
20. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
22. GOVERNING LAW AND JURISDICTION
22.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
22.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).