Avantis Education End User Licence Agreement (EULA)

1. Definition
The following defined terms are used in this EULA:

1.1 Account means the unique account created for you and the Authorised Users to access the Licensed Content.

1.2 Authorised Users means your employees, staff members, agents and independent contractors, your subsidiaries and affiliates, who you authorise to use the Service and the Licensed Content.

1.3 Billing Period means as defined in clause 2.1.2.

1.4 Free Trial means a limited period of free Subscription as granted by us in accordance with clause 2.3.

1.5 Good Industry Practice means at any time the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a licensee under a licence similar to this Licence, seeking in good faith to comply with its contractual obligations and complying with all relevant laws.

1.6 Initial Subscription Period means your initial period of Subscription as stated in the Subscription plan you agreed with us (or our authorised reseller if you purchase the Software from them).

1.7 Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

1.8 Licensee Data means the data inputted by or on behalf of you, for the purpose of using or facilitating your use of the Services and the Licensed Content, and any data generated by, or derived from your use of the Software or Documents, whether hosted or stored within the Portal, Software or elsewhere. For the avoidance of doubt, Licensee Data excludes any User Generated Content.

1.9 Renewed Subscription means as defined in clause 2.2.3.

1.10 Service means our service that enables you to access and use the Licensed Content, which shall include any Support Services.

1.11 Subscription means the relevant subscription to our Service and Licensed Content purchased by you from us (or our authorised reseller) or a Free Trial, which entitles you and the Authorised Users to access and use the Licensed Content and our Service subject to this EULA and any other terms you and us (or our authorised reseller) agree in writing.

1.12 Subscription Period means the total period of Subscription you are entitled to, including the Initial Subscription Period and any Renewed Subscription.

1.13 Support Services means the standard support services provided by us in relation to the Software (or by our authorised reseller, if you purchase the Software from them).

1.14 User Generated Content means any text, images or other information (regardless of the form of it) that is posted, uploaded, linked (or otherwise made) via our Portal, by you or by other licensed users of our Resource and Software. For this EULA, Your Content shall mean any User Generated Content uploaded by you; and Other User Content shall mean any User Generated Content uploaded by other licensed users of our Resource and Software.

1.15 Virus means 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.

2. Subscription

2.1 Billing and payment

2.1.1 You shall provide us (or our authorised reseller if you purchase the Software from them) with accurate and complete billing information, including without limitation full name, full billing address, telephone number, email address, and a valid method of payment.

2.1.2 You shall be billed by:

2.1.2.1 us directly throughout your Subscription Period, if you purchase the Software from us directly; or

2.1.2.2 our authorised reseller for the 1^st year of your Subscription Period, and thereafter by us directly, if you purchase the Software from our authorised reseller;

on a recurring and periodic basis (for example, monthly, yearly or multi year as agreed) in advance, in accordance with the Subscription plan you selected. Each period of time between two billing dates shall be a Billing Period.

2.1.3 Should automatic billing fail for any reason, we will issue an electronic invoice, and you shall pay manually by a specified due date as set out in such invoice

2.2 Subscription Period

2.2.1 Our Services and Licensed Content are available only with a Subscription. Your access to the Service and the Licensed Content will cease at the end of your Subscription.

2.2.2 You may not cancel your Subscription during your Initial Subscription Period.

2.2.3 At the end of your subscription period, your Subscription will automatically renew (Renewed Subscription) in accordance with the period agreed as part of your Initial Subscription plan or the last Renewed Subscription (if different) under the same conditions applicable to the previous period, unless:

2.2.3.1 you refuse the renewal prior to the end of your Initial Subscription Period by giving us no less than 30 days written notice or we have agreed that we will change your Account setting to remove auto renewal, in which case your Subscription shall end on the last day of your Initial Subscription Period;

2.2.3.2 you cancel the Renewed Subscription by giving us no less than 30 days written notice or we have agreed that we will  change your Account setting to remove auto renewal, in which case your Subscription shall end on the last day of your then current Billing Period; or

2.2.3.3 we cancel the Renewed Subscription, in which case we will inform you by email, and your Subscription shall end on the last day of your then current Billing Period.

You shall remain liable for the full Subscription fees for (i) the Initial Subscription Period and (ii) any period of Renewed Subscription up to the end of your then current Billing Period. You shall not be entitled to a refund or discount of any Subscription fees paid or payable up to the end of your then current Billing Period.

2.3 Free Trial

2.3.1 We may at our sole discretion offer you a Free Trial before you start paying for your Subscription. You will be required to provide the details under clause 2.1.1, but you will not be charged until Free Trial ends.

2.3.2 You may cancel your Subscription at any time before the Free Trial ends with no further liability for Subscription fees.

2.3.3 Unless you cancel your Subscription before the Free Trial ends, your Initial Subscription Period shall automatically start immediately after the end of Free Trial.

2.3.4 We may in our sole discretion at any time modify any conditions applicable to your Free Trial and/or cancel your Free Trial. We shall provide reasonable notice to you of any cancellation of Free Trial to give you an opportunity to cancel the Subscription prior to our cancellation of Free Trial.

2.4 Subscription fee changes

2.4.1 We may in our sole discretion and at any time change the fees applicable to your Subscription. Any Subscription fee change will become effective at the end of your then current Billing Period, unless agreed otherwise by us in writing.

2.4.2 We will provide you with reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your Subscription before such change becomes effective.

2.4.3 Your continued use of the Service after the Subscription fee change comes into effect shall be deemed as your consent to such change.

3. EULA

3.1 In consideration of payment by you of the agreed Subscription fee to us, or to any of our authorised resellers (as applicable), and you agreeing to abide by the terms of this EULA, we:

3.1.1 grant to you a limited, non-exclusive, non-transferable, revocable licence, without the right to sublicense to access and use the Services and Licensed Content, on the terms of this EULA, solely for your internal business operations; and

3.1.2 or our authorised reseller (where you have paid a licence fee to an authorised reseller) shall provide Support Services to you.

3.2 You shall:

3.2.1 provide us with all necessary:

3.2.1.1 co-operation in relation to this EULA; and

3.2.1.2 access to such information as may be required by us;

to the extent required for us to provide you access to the Licensed Content, including but not limited to Licensee Data, security access information and configuration services;

3.2.2 without affecting your other obligations under this EULA, comply with all applicable laws and regulations with respect to your activities under this EULA; and

3.2.3 ensure that your network and systems comply with the relevant specifications provided by us from time to time.

3.3 You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Licensee Data. You hereby license us to use the Licensee Data for:

3.3.1 the proper performance of the Software and use of other Licensed Content;

3.3.2 the purposes set out in our Privacy Notice as described in clause 13; and

3.3.3 all other purposes relevant to the proper exercise of our rights and obligations under this agreement.

3.4 You undertake that you:

3.4.1 will not allow any persons other than your Authorised Users access to the Services and Licensed Content;

3.4.2 shall, and shall procure any of your Authorised Users shall, be liable to safeguard your or the Authorised Users’ (as applicable) password for their Account;

3.4.3 shall supervise and control use of the Service and Licensed Content, and ensure they are used by your Authorised Users only in accordance with the terms of this EULA, and any agreement with us or one of our authorised resellers (if applicable); and

3.4.4 shall comply with all applicable technology control or export laws and regulations.

3.5 You represent and warrant that you are not:

3.5.1 listed on, and you are not located in a country or region that is subject to, the United States embargo list, the United Kingdom sanction list, or the European Union sanction list;

3.5.2 located in a country that has been designated by either the United States, European Union or UK government as a “terrorist supporting” country; and

3.5.3 listed on any United States, European Union or UK government list of prohibited or restricted parties.

3.6 For the avoidance of doubt, we do not collect, monitor or otherwise use data relating to or identifying pupils. Whilst pupils may benefit from the Licensed Content, they are not a party to this EULA.

4. Restrictions

4.1 Except as expressly set out in this EULA or as permitted by any local law which is incapable of exclusion by agreement between the parties, you shall not:

4.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service and/or Licensed Content in any form or media or by any means;

4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

4.1.3 use all or any part of the Service and/or Licensed Content to build a product or service which competes with our business in whole or in part;

4.1.4 use the Service and/or Licensed Content to provide services to third parties;

4.1.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Licensed Content available to any third party except the Authorised Users; or

4.1.6 attempt to obtain, or assist third parties in obtaining, access to the Service and/or Licensed Content other than as provided under this EULA.

4.2 You shall not use the Software to:

4.2.1 distribute or transmit any Viruses and shall implement procedures in line with Good Industry Practice to prevent such distribution or transmission;

4.2.2 store, access, publish, disseminate, distribute or transmit any material which:

4.2.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

4.2.2.2 facilitates illegal activity;

4.2.2.3 depicts sexually explicit images;

4.2.2.4 promotes unlawful violence;

4.2.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

4.2.3 is otherwise illegal or causes damage or injury to any person or property.

4.3 You shall not use, as your username for the Account, the name of another person or entity, or a name that is not lawfully available for use, or a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorisation, or a name that is otherwise offensive.

4.4 Notwithstanding our rights under clause 10, we may, on written notice to you specifying your breach of this EULA and requiring it to be remedied within thirty (30) days, disable your access to the Service and Licensed Content for the duration of time that the breach remains unremedied.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 You acknowledge that all Intellectual Property Rights in the Service and Licensed Content belong to us or our licensors as applicable, that the Intellectual Property Rights in the Service and Licensed Content are licensed (not sold) to you, and that you have no rights in, or to, the Service and Licensed Content other than the right to use them in accordance with the terms of this EULA.

5.2 You acknowledge that you have no right to have access to any Software in source code form.

6. LIMITED WARRANTY

6.1 Where you have purchased the Software from one of our authorised resellers, to the extent permitted under law, all warranties (whether implied or otherwise) are excluded. Please refer to the agreement with our authorised reseller from who you purchased your Subscription for details of any warranties which may apply.

6.2 Where you have purchased the Software directly from us, we warrant that:

6.2.1 the Resource and Software will, when properly used and on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documents; and

6.2.2 that the Documents correctly describe the operation of the Resource and Software in all material respects.

6.3 If you notify us in writing of any defect or fault in the Resource or Software as a result of which it fails to perform substantially in accordance with the Documents, we will, at our sole option, either repair or replace the Resource or Software, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault.

6.4 The warranty set out in clause 6.2 does not apply if the defect or fault in the Resource or Software results from;

6.4.1 you having altered or modified the Software, Resource or Documents; and/or

6.4.2 you having used the Resource, Software or Documents in breach of the terms of this EULA.

6.5 We provide no representation or warranty of any kind, express or implied, as to any User Generated Content you have access to via our Portal.

7. USER GENERATED CONTENT

7.1 We allow you to upload User Generated Content via our Portals. You are responsible for all Your Content, including its legality, reliability, and appropriateness.

7.2 By uploading Your Content, you grant to us:

7.2.1 a worldwide, non-exclusive, royalty-free, transferable, permanent and irrevocable licence to use, reproduce, distribute, prepare derivative works of, display, and perform Your Content in connection with any of our services and products and across different media including to promote our business;

7.2.2 a worldwide, non-exclusive, royalty-free, transferable, permanent and irrevocable licence for other licensed users of our Resource and Software to use Your Content in accordance with the terms of the EULA.

7.3 You retain any and all of your Intellectual Property Rights in Your Content and you are responsible for protecting those rights.

7.4 You represent and warrant that:

7.4.1 Your Content is yours (you own it) or you have the right to use it and grant us the rights and licence as provided in this EULA; and

7.4.2 the uploading of Your Content does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person.

7.5 We are not responsible for any User Generated Content. You expressly understand and agree that you are solely responsible for the User Generated Content and for all activity that occurs under your Account, whether done so by you or any third person using your Account.

7.6 You may not transmit any User Generated Content that is unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable User Generated Content include, but are not limited to, the following:

7.6.1 unlawful or promoting unlawful activity;

7.6.2 defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups;

7.6.3 spam, machine – or randomly – generated, constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;

7.6.4 containing or installing any viruses, worms, malware, trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of a third person;

7.6.5 infringing on any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights;

7.6.6 impersonating any person or entity including us and our employees and representatives;

7.6.7 violating the privacy of any third person; and

7.6.8 false information and features.

7.7 We reserve the right, but not the obligation, to, in its sole discretion, determine whether or not any User Generated Content is appropriate and complies with this EULA, and refuse or remove the User Generated Content. We further reserve the right to make formatting and edits and change the manner any User Generated Content. We can also limit or revoke your use of the Service and/or Licensed Content, if you upload any objectionable User Generated Content.

7.8 As we cannot monitor or control all User Generated Content, you agree to use Other User Content at your own risk. You understand that by using Other User Content, you may be exposed to information that you may find offensive, indecent, incorrect or objectionable.

7.9 You agree that under no circumstances will we be liable in any way for any content, including any errors or omissions in any User Generated Content.

7.10 Backups of User Generated Content.

7.10.1 Although regular backups of User Generated Content are performed, we do not guarantee there will be no loss or corruption of the User Generated Content.

7.10.2 Corrupt or invalid backup points may be caused by, without limitation, User Generated Content that is corrupted prior to being backed up or that changes during the time a backup is performed.

7.10.3 We will provide support and attempt to troubleshoot any known or discovered issues that may affect the backups of User Generated Content. But you acknowledge that we haves no liability related to the integrity of any User Generated Content or the failure to successfully restore any User Generated Content to a usable state.

7.10.4 You agree to maintain a complete and accurate copy of Your Content in a location independent of the Service and Licensed Content.

8. LINKS TO OTHER WEBSITES

Our Portals may contain links to third-party web sites or services that are not owned or controlled by us. We have no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or the Services. We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.

9. LIMITATION OF LIABILITY

9.1 You accept responsibility for the selection of the Service and Licensed Content to achieve your intended results and acknowledge that the Service or Licensed Content has not been developed or designed to meet or support any individual requirements you have, including any particular cybersecurity requirements you might be subject to, or any regulated activity that you may be engaged in, including the provision of an online intermediation service, an online search engine or service that facilitates online interaction between users (such as, but not limited to, a social media platform) (each a Regulated Activity). If you use the Service and/or Licensed Content for any Regulated Activity you agree to comply with any requirements that apply to such Regulated Activity from time to time (including in any jurisdiction in which you operate or where the Regulated Activity is undertaken) and you shall defend, indemnify and hold us harmless against any loss or damage (including regulatory fines or penalties) costs (including legal fees) and expenses which we may suffer or incur as a result of your breach of this clause 9.1.

9.2 Except for when you are our authorised reseller, you shall only use the Service and/or Licensed Content for internal use by your business, and you agree not to use the Service and/or Licensed Content for any resale purposes.

9.3 We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the EULA or your use of the Service and/or Licensed Content for:

9.3.1 loss of profits, sales, business, or revenue;

9.3.2 business interruption;

9.3.3 loss of anticipated savings;

9.3.4 wasted expenditure;

9.3.5 loss or corruption of data or information;

9.3.6 loss of business opportunity, goodwill or reputation,

9.3.7 where any of the losses set out in clause 9.3.1 to clause 9.3.6 are direct or indirect;

9.3.8 any special, indirect or consequential loss, damage, charges or expenses; or

9.3.9 any loss or damage (whether direct or indirect) of any kind incurred as a result of your use of any User Generated Content.

9.4 Other than the losses set out in clause 9.3 (for which we are not liable), our maximum aggregate liability under or in connection with this EULA whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to the amount actually paid by you for the Subscription in the 12 months preceding the breach. This maximum cap does not apply to clause 9.5.

9.5 Nothing in this EULA shall limit or exclude our liability for:

9.5.1 death or personal injury resulting from our negligence;

9.5.2 fraud or fraudulent misrepresentation; or

9.5.3 any other liability that cannot be excluded or limited by English law.

9.6 This EULA sets out the full extent of our obligations and liabilities in respect of the Service and Licensed Content. Except as expressly stated in this EULA, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the Service and Licensed Content which might otherwise be implied into, or incorporated in, this EULA whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

10. TERMINATION

10.1 We may terminate this EULA immediately by written notice to you if you commit a material or persistent breach of this EULA or any agreement with one of our authorised resellers, which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.

10.2 On termination for any reason:

10.2.1 all rights granted to you under this EULA shall cease;

10.2.2 you must immediately cease all activities authorised by this EULA; and

10.2.3 you must immediately and permanently delete or disable interfaces to the Portal and the Software from all computer equipment in your possession, and immediately destroy, delete or return to us (at our option) all copies of the Licensed Content then in your possession, custody or control and, in the case of destruction or deletion, certify to us that you have done so.

11. COMMUNICATIONS BETWEEN US

11.1 We may update the terms of this EULA at any time on notice to you in accordance with this clause 11. Your continued use of any part of the Service and Licensed Content following the deemed receipt and service of the notice under clause 11.3 shall constitute your acceptance to the terms of this EULA, as varied. If you do not wish to accept the terms of the EULA (as varied) you must immediately stop using and accessing the Service and Licensed Content on the deemed receipt and service of the notice.

11.2 If we have to contact you, we will do so by email or by pre-paid post to the email address or the physical address as applicable that you provided in accordance with your order for the Subscription.

11.3 Any notice:

11.3.1 given by us to you will be deemed received and properly served 24 hours after it is first posted on our website, 24 hours after an email is sent, or three days after the date of posting of any letter; and

11.3.2 given by you to us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.

11.4 In proving the service of any notice, it will be sufficient to prove, in the case of posting on our website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.

12. EVENTS OUTSIDE OUR CONTROL

12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 12.2.

12.2 An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications networks.

12.3 If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:

12.3.1 our obligations under this EULA will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and

12.3.2 we will use our reasonable endeavours to find a solution by which our obligations under this EULA may be performed despite the Event Outside Our Control.

13. OUR USE OF PERSONAL DATA

13.1 Under applicable data protection legislation, we are required to provide you with certain information about who we are, how we process the personal data of those individuals who use the Service and Licensed Content and for what purposes and those individuals' rights in relation to their personal data and how to exercise them. This information is provided in www.avantiseducation.com/privacy-policy (Privacy Notice) and it is important that you read that information.

13.2 We will process your personal information in accordance with our Privacy Notice and all applicable laws. You acknowledge and accept that if either you or we change or decide to transfer to a different authorised reseller then we will need (and you consent) to transfer all applicable information to them so as to enable them to assist you. We will use our reasonable efforts to notify you of any change by us of an authorised reseller.

14. OTHER IMPORTANT TERMS

14.1 We may transfer our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA. You may only transfer your rights or your obligations under this EULA to another person if we agree in writing.

14.2 This EULA and any document expressly referred to in it constitutes the entire agreement between us and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between us, whether written or oral, relating to its subject matter.

14.3 You acknowledge that in agreeing to this EULA you do not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this EULA, or any document expressly referred to in it. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this EULA or any document expressly referred to in it.

14.4 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

14.5 Each of the clauses of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.

14.6 This EULA, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.

14.7 This EULA may be translated into other languages by us however these original English text shall prevail in case of dispute.

14.8 Other country specific terms may apply to you if you are located in one of the countries set out in Schedule 1 (Country Specific Terms). In the event that there is a conflict between the main body of this EULA and Schedule 1, Schedule 1 shall prevail to the extent of the conflict only.