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Terms and Conditions

This Subscription Agreement (this “Agreement”) sets out the terms under which the National Learning Trust and the Art of Brilliance trading as Brilliant Schools (“Brilliant Schools”) provides the subscriber (the “Subscriber”) with access to Brilliant School’s platform (the “Platform”).

This Agreement is incorporated into and governs each subscription order (each, a “Subscription Order”) made by a Subscriber and any usage of the Platform prior to a Subscription Order being made.

In addition, Brilliant School’s privacy policy forms part of this Agreement. The Subscriber will be deemed to have accepted the terms and conditions of this Agreement upon the earliest to occur of: (i) its usage of the Platform; (ii) the making of any Subscription Order; and (iii) the payment of any Fees.

1 – Subscription

1.1 Brilliant Schools may offer the Subscriber usage of the Platform prior to a Subscription Order being made. Brilliant Schools will inform the Subscriber in respect of any applicable conditions and/or restrictions (together “Conditions”) in respect of its use of the Platform during such period. The Subscriber agrees to comply with any Conditions notified to it which will be deemed to form part of this Agreement.
1.2 Brilliant Schools hereby grants to the Subscriber a limited, nonexclusive, non-transferable, non-sub-licensable right to use the Platform during any period of usage prior to a Subscription Order (if applicable) and the subscription period specified in the Subscription Order (“Subscription Period”), including any renewals of the Subscription Period.
1.3 Following the expiry of the Subscription Period, unless terminated in accordance with clause 7.3, this Agreement will automatically renew for successive 12 month periods (each a “Renewal Period”) on the same terms set out in this Agreement except that Brilliant Schools will be entitled to increase the Fees (as defined below) at the time of each renewal to reflect its then current pricing.
1.4 Brilliant Schools will use commercially reasonable endeavours to make the Platform available to the Subscriber in accordance with the Service Level Terms appended to this Agreement. The Subscriber agrees that Brilliant Schools may update the Service Level Terms from time to time by providing the Subscriber with written notice of the change.
1.5 Brilliant Schools will provide support services to the Subscriber in accordance with the Service Level Terms appended to this Agreement.
1.6 Brilliant Schools may from time to time update, enhance, modify and improve the Platform (together “Improvements”). Such Improvements will form part of the Platform when made available and are subject to the terms of this Agreement.

 

2 – Subscriber Obligations

2.1 The Subscriber agrees that:
2.1.1 it will not allow any other establishment to access an account given to a Subscriber;
2.1.2 it will keep their Subscriber Account details (including password) secure;
2.1.3 it will not use the Platform in any unlawful, harmful, defamatory or similar way and that it will not upload any viruses or similar harmful programs to the Platform;
2.1.4 it has all rights, permissions and consents necessary to permit staff to access the Platform and for Brilliant Schools to process and store information relating to Subscribers to perform its obligations and exercise its rights under this Agreement (including providing the Platform to Subscribers) as set out in this Agreement and Brilliant School’s Privacy Policy;
2.1.5 Brilliant Schools can process and store information relating to the Subscriber to enable Brilliant Schools to perform its obligations under this Agreement;
2.1.6 it will be solely responsible for procuring and maintaining network connections and telecommunications links to the Platform; and
2.1.7 it will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Brilliant Schools.
2.2 Except to the extent permitted by applicable law, the Subscriber will not attempt to adapt, copy, modify, duplicate, create derivative works from, frame, mirror, republish, distribute, download, display, transmit, reverse engineer, decompile, or disassemble the Platform (or any software relating to it).
2.3 The Subscriber acknowledges that it is responsible for the acts and omissions of their staff accessing the Platform.
2.4 The Subscriber hereby warrants that any data and/or content uploaded to the Platform by a User (“User Content”) will not infringe the intellectual property rights of any third party. The Subscriber hereby agrees to indemnify and keep indemnified Brilliant Schools in respect of any and all losses, costs (including reasonable legal costs) and damages it suffers or incurs in relation to any claims from third parties that the User Content infringes the intellectual property rights of a third party.

 

3 – Fees

3.1 In consideration for access to the Platform, the Subscriber agrees to pay the subscription fees set out in the Subscription Order.
3.2 For Subscription Periods of two years or longer, Brilliant Schools shall be entitled to increase the Fees on each anniversary of the Subscription Order by no more than the percentage increase in RPI in the previous 12 months plus 2.5%.
3.3 The Subscriber will, subject to the submission of a valid invoice, pay to Brilliant Schools the Fees due within 28 days of the date of the invoice. Sums due will be paid via debit or credit card or by depositing the amount due via bank transfer. Account information, and any additional charges in respect of specific payment types, will be included on each invoice.
3.4 All amounts referred to in this Agreement or the Subscription Order are exclusive of VAT, which will (if required) be payable by the Subscriber at the appropriate rate at the same time as payment is made of the sum to which the VAT relates.
3.5 Brilliant Schools will not be required to refund any Fees paid for in-year cancellation by the Subscriber.

 

4 – Ownership

4.1 The Platform is owned by Brilliant Schools. It is offered through a subscription and is not sold to a Subscriber. All right, title, and interest in and to the Platform (including all intellectual property rights) are and will remain the property of Brilliant Schools, regardless of the source giving rise to the intellectual property and despite any modifications or adaptations made for the benefit of the Subscriber.
4.2 The Subscriber agrees that Brilliant Schools may use, without restriction or royalty obligation, any comments, suggestions or contributions provided by the Subscriber during the course of their use of the Platform in relation to the functionality, user experience, operability or similar to the Platform.
4.3 The Subscriber hereby assigns to Brilliant Schools all intellectual property rights that Subscriber may have in relation to any such comments, suggestions or contributions referred to in clause 4.2.
4.4 For the avoidance of doubt, neither party will acquire any right, title or interest in or to any intellectual property rights owned by the other party.

 

5 – Confidential Information

5.1 The Subscriber acknowledges that all underlying ideas, algorithms, item calibrations, test scripts, concepts, procedures, processes, principles, know-how, and methods of operation that comprise the Platform, including Improvements, are confidential and contain trade secrets (collectively, “Confidential Information”).
5.2 The Subscriber agrees to keep all Confidential Information confidential and not to use, disclose, or distribute any Confidential Information, directly or indirectly, without the prior written consent of Brilliant Schools.

 

6 – Data Protection

6.1 Brilliant Schools will only process personal data provided by the Subscriber (“Data”) (i) in accordance with the written instructions of the Subscriber (including this Agreement) or (ii) where required to do so by applicable law.
6.2 Brilliant Schools will implement and maintain all appropriate technical and organisational security measures: (i) to ensure a level of security appropriate to the risk to the Data when it is processed by Brilliant Schools and (ii) to assist the Subscriber in the fulfilment of its obligations to respond to requests from data subjects exercising their rights under the UK Data Protection Act 1998 or, on and after 25 May 2018, EU Regulation 2016/679 or any equivalent or similar legislation implemented in the United Kingdom following the United Kingdom’s withdrawal from the European Union (the “Data Protection Legislation”).
6.3 Brilliant Schools will:
6.3.1 provide all assistance to the Subscriber as is reasonably requested to enable the Subscriber to comply with its obligations pursuant to the Data Protection Legislation;
6.3.2 take all reasonable steps to ensure that access to the Data is limited to those personnel who require access to it for the purpose of complying Brilliant School’s obligations under this Agreement and that such personnel are bound by enforceable obligations of confidentiality;
6.3.3 not transfer the Data to a third party (or permit the Data to be so processed or transferred) unless it has obtained the Subscriber’s prior written consent.  The data will be held exclusively by the National Learning Trust and the Art of Brilliance trading as Brilliant Schools;
6.3.4 promptly, and in any event within 24 hours of becoming aware of any breach of security leading to, or reasonably believed to have led to, the accidental or unlawful destruction, loss, alteration, damage, unauthorised disclosure of or access to the Data (a “Security Breach”), notify the Subscriber of the Security Breach and provide the Subscriber with details of the Security Breach; and
6.3.5 following termination of this Agreement and on the Subscriber’s request, permanently delete all Data (including copies) in its possession or control, save where required to retain such Data by applicable law.
6.4 Brilliant Schools will own any and all data which is generated by, or relates to, the Subscriber’s use of the Platform (including any statistical, reporting and anonymised data) provided always that such data does not identify an individual Subscriber.

 

7 – Suspension and Termination

7.1 If (i) the Subscriber has failed to pay any Fees by the relevant due date; or (ii) Brilliant Schools, acting reasonably, believes that the Subscriber is in breach of this Agreement, Brilliant Schools may, at its discretion and without prejudice to its other rights and remedies, suspend the Subscriber’s right to access the Platform.
7.2 Brilliant Schools will be entitled to terminate any period of usage of the Platform prior to a Subscription Order being made at any time by providing the Subscriber with notification of such termination.
7.3 Brilliant Schools or the Subscriber will be entitled to terminate this Agreement by providing not less than 30 days’ written notice to the other prior to the expiry of the Subscription Period or any Renewal Period.
7.4 Brilliant Schools may terminate this Agreement in the event the Subscriber commits a breach of this Agreement and, to the extent it can be cured, fails to cure the breach within 30 days of a written notice requiring the breach to be remedied.
7.5 The expiry or termination of this Agreement (howsoever caused) will be without prejudice to: (i) any other rights which either party may have under this Agreement; (ii) any liabilities accrued prior to the date on which the expiry or termination takes effect; and (iii) any rights or obligations of a person which are expressly stated to survive, or by their nature survive, expiry or termination of this Agreement.

 

8 – Limited Warranty and Disclaimer

8.1 Brilliant Schools warrants to the Subscriber that: (i) Brilliant Schools will comply with all applicable laws in connection with the provision of the Platform; and (ii) Brilliant Schools will use commercially reasonable efforts to comply with the Service Level Terms. If the Platform fails to conform to these warranties, Brilliant Schools will use its commercially reasonable efforts to correct the Platform so it complies with the warranties. If Brilliant Schools is unable to correct the error after using commercially reasonable efforts, Brilliant Schools will refund any unused Fees paid by the Subscriber, as depreciated over the Subscription Period or the Renewal Period (as applicable) on a straight line basis. The Subscriber’s right to a refund in this clause 8.1 is the Subscriber’s sole remedy for a breach of the warranties set out in this clause 8.1.
8.2 The limited warranties provided in this clause 8 are void and Brilliant Schools will not be liable to the extent that the failure of the Platform results from either (i) use of the Platform in connection with software or hardware not compatible with the Platform or not meeting the technical specifications provided by Brilliant Schools; (ii) improper or inadequate maintenance of the Subscriber’s equipment or software; or (iii) inadequate internet connectivity or bandwidth. The Subscriber is responsible for the results obtained and decisions made from its use of the Platform.
8.3 The Platform may include open source software components and use of such components may be subject to additional terms and conditions.
8.4 Except for the limited warranties provided in clause 8, to the maximum extent permitted by applicable law, the Platform is provided “as-is” without warranty of any kind, either express or implied, including but not limited to any implied warranty of fitness for a particular purpose or use, quality, productiveness or capacity, or that the operation of the Platform will be error free.

 

9 – Limitation

9.1 Except to the extent the following liability limitation is prohibited by applicable law, in no event will either party be liable to the other party, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise for (i) any indirect, punitive, consequential or special loss; or (ii) loss of opportunity, savings, profits, goodwill, business, anticipated benefits, data and computer failure or malfunction, that arises under or in connection with this Agreement.
9.2 Each party’s total liability arising under or in connection with this Agreement, whether arising in contract, tort (including negligence), restitution, or for breach of statutory duty or misrepresentation, or otherwise, will not exceed the Fees paid by the Subscriber to Brilliant Schools in the 12 month period prior to the date on which the relevant claim arose.
9.3 Nothing in this Agreement excludes the liability of either party for (i) death or personal injury resulting from negligence; (ii) for fraud or fraudulent misrepresentation; or (iii) for any other liability which cannot be limited or excluded by applicable law. Nothing in this Agreement excludes or limits the liability of the Subscriber to pay the Fees.

 

10 – Miscellaneous

10.1 The Subscriber consents to Brilliant School’s use and/or references to Subscriber’s name, directly or indirectly, in Brilliant School’s marketing and training materials.
10.2 Neither party will be liable to the other party for any delay or failure to perform any obligation hereunder due to causes beyond its control, including without limitation, war, riot, insurrection, civil commotion, terrorist activity, fire, industrial disputes of whatever nature, acts of nature, computer crimes, epidemics, acts or omissions of third party vendors or suppliers, equipment failures, public enemies of government, failure of telecommunications, system malfunctions, fire, or other casualty.
10.3 Waiver of any default or breach under this Agreement by a party does not constitute a waiver of any subsequent default or a modification of any other provisions of this Agreement. If any part of this Agreement will be held invalid, illegal, in conflict with any law, or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement will nevertheless remain in full force and effect.
10.4 The parties do not confer any right or remedy 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.
10.5 This Agreement and the documents referred to herein contain the entire understanding of the parties regarding the subject matter of this Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of this Agreement. This Agreement shall apply to the exclusion of all other terms and conditions contained or referred to in any Subscription Order, notice or other communication of or from the Subscriber or which may otherwise be implied by law, custom and practice or course of dealing.
10.6 The Subscriber may not assign this Agreement to any third party without the prior written consent of Brilliant Schools. Any such purported assignment will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors, and permitted assigns, if any.
10.7 The Subscriber agrees that Brilliant Schools may sub-contract some or all of its obligations under this Agreement. To the extent that Brilliant Schools sub-contracts its obligations, it will, subject to the terms of this Agreement (including, without limitation, clause 9), be liable for the acts and omissions of its sub-contractors.
10.8 Any notice required under this Agreement will be in writing and in English and will be served (i) personally by hand to the registered address of the relevant party, when it will be deemed served on the next business day; (ii) by pre-paid postal service to the registered address of the relevant party, when it will be deemed served two business days after the date it was posted; or (iii) by email to an email address designated by the recipient, when it will be deemed served on the next business day (provided that no out of office or similar automatic response is received by the sender).
10.9 This Agreement will be governed by and construed in accordance with the laws of England and Wales, without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and will not apply to this Agreement. The parties submit to the exclusive jurisdiction of the English courts.
10.10 The parties are acting and will act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose. Neither party will be entitled to (a) enter into any contracts in the name of or on behalf of the other party; (b) pledge the credit of the other party in any way or hold itself out as having authority to do so; or (c) make commitments or incur any charges or expenses for or in the name of the other party. Neither party’s employees or agents are, nor will they be deemed to be at any time during the term of this Agreement, employees of the other party.