Tes Global Limited (formerly “Edukey” or t/a Edukey software Terms & Conditions
1. Use of the System and Term of Use
If you create a school registration on the System, you become a ‘User’. In becoming a User you warrant that: (i) you are of legal age to form a binding contract (or, if you are a minor, you have your parent’s permission to use the System, and your parent has read and agrees to this Agreement on your behalf); (ii) all registration information you submit is accurate and truthful; (iii) you will maintain the accuracy of such information; (iv) if you are accepting this Agreement on behalf of an institution, company or other legal entity, you have the authority to bind that institution, company or legal entity to this Agreement. You also warrant that you are legally permitted to use and access the System and take full responsibility for the selection and use of and access to the System. This Agreement is void where prohibited by law, and the right to access the System is revoked in such jurisdictions.
As a User, you also warrant that you will only grant access codes to teachers and staff members who are current employees of your school or district. Upon termination of a teacher or other staff member’s employment with you, you will require such individual to return and cease using all access codes he or she has in his or her possession. If at any time you learn a user of the System claims to be affiliated with your school or district who is not, in fact, affiliated with your school or district, you will notify Tes immediately.
If an institution (such as a school) or another enterprise is providing your Membership of the System, note that you may only use your Membership for so long as that institution or Tes collects limited personal information from minor Students, but only where that Student’s school, district, and/or teacher has contracted with Tes (by agreeing to this Agreement) to collect personal information from Students for the use and benefit of the learning environment. Tes requires schools, districts, and/or teachers to obtain parental consent from Students’ parents before collecting any such personal information. If you are a Student, please do not send any personal information about yourself to us. If you believe that a Student may have provided us personal information beyond what is requested when signing up for the Website, or that a Student’s school, district, or teacher has not required parental consent prior to our collection of any personal information, please contact us at firstname.lastname@example.org.
This Agreement shall commence on the date that it is accepted in accordance with clause 1 above (“Commencement Date”) and shall continue for the initial term as set out in the purchase order , (“Initial Term”) and will continue automatically thereafter for additional minimum terms of 12 months each, unless terminated in accordance with the terms of this Agreement.
- Ownership and Fee
This Agreement does not provide you with title to or ownership of the System nor does this Agreement provide you with any exclusive or perpetual right to use the system beyond the limits of this Agreement. Tes grants you a non-transferable, non-exclusive right for the term of this Agreement to allow Users access to the System.
The System is provided by and all materials provided by Tes in relation to the System are licensed or owned absolutely by Tes.
You shall pay to Tes the licence fee as set out in the purchase order or subsequent invoices as per section 1) “Term” in this agreement (“Fee“).
The terms of payment of such Fee are as set out in the purchase order and invoice issued to you by Tes from time to time.
- Restrictions on Use
You shall not alter, modify, adapt or translate the whole or any part of the System materials in any way whatever or permit the whole or any part of the System materials to be combined with or become incorporated in any other computer program nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things. To enable you to make use of the System, permission is hereby granted to you to electronically copy and store and print individual pages of the System materials on paper and photocopy them only for the purposes set out in clause 1. Any other use of the System materials, including reproduction for purposes other than that hereby authorised (including the removal of copyright or trade mark notices), the creation of an electronic or manual database by systematically downloading and storing the System materials, or their distribution (whether electronically or not) or republication, is prohibited. The use of this System is only permitted by schools and other educational establishments.
Any requests for permission to use the System in a manner otherwise than permitted by this Agreement should be emailed to email@example.com
- Security and Data Protection
In these terms, “Privacy and Data Protection Requirements” means: the Data Protection Act 2018 (“DPA”); the General Data Protection Regulation 2016/679 (“GDPR”) or any equivalent provision which may replace the GDPR following the formal political separation of the United Kingdom from the European Union; the Regulation of Investigatory Powers Act 2000; the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699); the Electronic Communications Data Protection Directive (2002/58/EC); the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003); and all applicable laws and regulations which may be in force from time to time relating to the processing of Personal Data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction. “Personal Data”, “Data Controller” and “Data Processor” and “processing” shall have the meanings given to them in the GDPR. All Personal Data that is stored in the System by schools/education institutions is collected and held in accordance with the terms laid out in Data Processing Agreement (which forms part of this Agreement).
Throughout the term of this Agreement you will and will procure that your Users:
• have up to date anti-virus software running on any device the System is accessed from;
• log off from the System if the device unattended;
• do not write down or share system passwords;
• change your password on a regular basis; and
• immediately report any suspected security breach.
Users are required to use passwords in order to access the system. The responsibility of ensuring that the passwords are not revealed or disclosed to any third party is with you and you must keep them secure. If you become aware that a third party knows or has discovered the passwords, you must contact: firstname.lastname@example.org. You must observe any user instructions of which Tes may notify you from time to time. These user instructions may be liable to change and if this happens Tes will notify you, and you must observe any new user instructions of which Tes notifies you.
- Improvements and Updates
Tes reserves the right to:
(a) Add or remove additional functionality to the Website;
(b) Provide additional services from time to time;
(c) Introduce updates to the system;
which may at Tes’ sole discretion either be provided as part of the System or provided for an additional fee.
- Intellectual Property
Unless stated otherwise, any intellectual property rights arising in respect of the System, the System materials and any improvements or updates issued under clause 5 belong to Tes and/or its licensors. Any use of such intellectual property rights or software is strictly prohibited except where expressly allowed under this Agreement.
- System Requirements
Without prejudice to clause 8, Tes aims to use appropriate technology to ensure that you are provided with the best quality of service. As such the functionality of the System may change from time to time and Tes cannot guarantee the availability of the System on any particular system or browser. The operation of the System requires Internet connectivity and you agree to connection with your school management system or provision of data in spreadsheet format. You are responsible for making appropriate arrangements with an Internet service provider.
- Limitation of Liability
Tes will provide the System with reasonable skill and care. However, Tes does not warrant that the functions contained in the System will meet your requirements or that the operation of the System or Website will be uninterrupted or error free. The warranties and conditions stated in this Agreement are in lieu of all other warranties, conditions or other terms whether express or implied.
- Limitation of Liability of Tes
Whether or not Tes has been advised of the possibility of such loss, Tes shall not be liable in contract, tort or otherwise howsoever for loss of profits; loss of revenue; loss of business or goodwill; loss of, breach of, damage to, or corruption of data; or loss of opportunity whether arising out of or in connection with or in relation to the System, the Website or the availability or non-availability of the System or Website or the supply or non-supply of the System or otherwise under this Agreement.
You hereby agree to fully indemnify Tes against any claim brought by a third party resulting from use of the System by you or any staff or students in respect of all losses, costs, actions, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered or incurred directly by Tes in consequence of your breach or non- observance of this Agreement or that of any staff or Students. In addition, you shall defend and pay all costs, damages, awards, fees (including any reasonable legal fees) and judgements awarded against Tes arising from any such claims and shall provide Tes with notice of such claims, full authority to defend, compromise or settle such claims and reasonable assistance necessary to defend such claims at your own expense.
Tes shall not be liable in respect of the use of or inability to use the System or in connection with any failure of performance, accuracy, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure even if Tes or its employees or agents are advised of the possibility of such damages or losses.
Accuracy of pupil data is the responsibility of the school and the school will have provisions in place to ensure the data is verified as accurate & up to date and complies with the Privacy and Data Protection Requirements (as amended).
Without prejudice to clause 8 and unless otherwise expressly set out in this clause 9, the total liability of Tes, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement shall in no circumstances exceed a sum equal to the Fee paid in any 12 month period.
Nothing in this Agreement shall exclude or limit the liability of Tes for personal injury or death caused by its negligence or for any other type of loss that cannot be excluded or limited by law.
- Force Majeure
Neither party shall be under any liability to the other in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely, circumstances beyond the control of the parties which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, pandemic, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority, including acts of local government and parliamentary authority. In particular this clause applies to Tes being unable to supply the system due to the failure of its own service providers from time to time.
Any notices to be issued under this Agreement may be made via email or post. Notices to Tes should be sent to its registered address at 26 Red Lion Square, London WC1R 4HQ or to email@example.com. You must provide us with an email and postal address to which we can send you notices. Either party may change the address to send notices by notifying the other of such a change in writing. Notices sent by email will be deemed received on the next business day and notices sent by post deemed accepted on the third business day after posting. For the purposes of this clause no exception shall be made for school holidays.
- Governing Law
This Agreement shall be governed in all respects by the laws of England and Wales and the parties agree to the non-exclusive jurisdiction of the courts of England and Wales.
- Third Party Software
Software of third parties is provided under the licence terms of the relevant third parties. For connections to school systems it is the responsibility of the school to ensure that the connection is live and that data is being sent and/or received.
- Severability and Termination
If any part, term or provision of this Agreement is held to be illegal, unenforceable or in conflict with the law the validity or enforceability of the remaining clauses shall not be affected.
If you wish to terminate this Agreement after your initial term then you must provide us with at least 6 weeks written notice of termination of the Agreement, such notice not to expire before the end of the Initial Term or each anniversary thereafter. Termination of the Agreement does not entitle You to recompense in any way and any recompense offered will be at the discretion of Tes.
If you breach any of the terms of this Agreement, Tes is entitled to terminate this Agreement immediately without recompense to you. Tes may also terminate this Agreement if you are unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986) or become insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a bankruptcy order is made or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of your assets or if you enter into or propose any composition or arrangement with your creditors generally or any analogous event occurs in any applicable jurisdiction.
On termination for any reason:
(a) all rights granted to you under this Agreement shall cease;
(b) you shall cease all activities authorised by this Agreement;
(c) you shall immediately pay to Tes any sums due to Tes under this Agreement; and
(d) you shall immediately destroy or return to Tes (at Tes’ option) all copies of the System materials then in its possession, custody or control and, in the case of destruction, certify to Tes that it has done so.
e) data held by Tes will be deleted within 30 days.
- Third Party Rights
This Agreement does not create any rights in favour of a third party.
Support will be an online solution via the medium of phone, email or a web browser.
You may not assign, sublicense or otherwise transfer any of your rights under this Agreement. Tes may assign the benefit and the burden of this Agreement.
Tes may at any time vary the terms of the Agreement and shall provide you with 30 days written notice of any such variation, following which such varied terms shall apply.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
This Agreement, and any other documentation referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into this Agreement and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents. Nothing in this clause shall limit or exclude any liability for fraud.