DB Education Terms and Conditions

1. Definitions

In this Agreement, the following terms should have the following meanings:
“Agreement” means the contract made between DB Education Services Ltd and the Customer to which these Conditions apply;

“Condition(s)” means the condition(s) of this Agreement.

“DB” means DB Education Services Ltd, company registered no. 3894475, registered address Aspect House, 84/87 Queens Road, Brighton BN1 3XE;

“Customer” means a government body, education establishment or
corporate entity at whose application DB agrees to provide the Service under the terms of this Agreement including all Users authorised by such entities to access the Service;

“Literature” means any document, brochure, tariff list, user guide or instructions as current from time to time published (whether on paper
or in electronic form) by or on behalf of DB in connection with the provision of or in any way relating to the Service;

“Password” means such personal identification name(s) or number(s)
as may be allocated to the Customer initially by DB on commencement of the Service, and which may be changed thereafter from time to time by the Customer or by DB upon written notification to the Customer;

“Renewal Date” means the annual anniversary for renewal of the
Customer’s subscription, fixed as the date the initial subscription period to the Service ended

“Service” means the service provided by DB and agreed in writing with the Customer.

“Software” means the software programmes being made available by DB to the Customer for the purpose of using the Service;

“Subscription Charges” means DB’s charges for access to the Service as set out from time to time by DB and agreed with the Customer.

“User” means an individual authorised by a Customer to access the
Service;

“User name” means such unique network or account identification(s) issued to the Customer or a User by DB as DB shall deem fit in order to allow the Customer or User access to and use of the Service.

The expression “Customer” and “DB” shall include their respective successors and permitted assigns and their respective employees and agents.

2. Service

2.1 DB will deliver the Service and use its best endeavours to ensure that this is delivered and provided in accordance with the DB Service Level Agreement as current from time to time published (whether on paper or in electronic form) by or on behalf of DB. A copy of the current DB Service Level Agreement is available on request.

2.2 The DB Customer Service Centre is available during the hours of 8:30am to 5:00pm, Monday to Friday, excluding Public Holidays.

2.3 Without limitation to the generality of the foregoing, the Customer shall be responsible for complying with any applicable data protection, copyright and other legislation and regulations. DB shall not be responsible for the Customer’s use of the service.

3. Duration and renewal

3.1 The Service shall be provided by DB to the Customer from the date DB allocates a Username and Password to the Customer and shall continue for an initial minimum period of 12 months, or such longer period as may be agreed between the Customer and DB. Thereafter the service shall be automatically renewed on an annual basis unless this Agreement is terminated in accordance with Clause 11.1.

3.2 Not less than 30 days before the Renewal Date, DB will send the customer a notification of the renewal, the renewal rate, which shall be uplifted in accordance with the RPI + 1% unless otherwise agreed, and the invoice.

3.3 On the Renewal Date the Customer’s subscription to the Service will be renewed, subject to payment having been received.

3.4 If DB sends the Customer a revised version of DB’s current standard terms and conditions of service, together with a notice stating when such revised terms will come into force and the Customer continues to make use of the Service after such date, then the Customer will be deemed to have accepted such revised terms with effect from such date.

4. Subscription Charge

4.1 In consideration of DB providing the Service the Customer shall pay to DB the subscription charge plus agreed charges for any additional services, plus VAT at the applicable rate.

4.2 Details of the subscription charge and additional service charges are available on request from DB.

5. Payment

5.1 Payment of all amounts due shall be made by the Customer in full by cheque or by such other method as may reasonably be specified by DB from time to time and shall be prior to the inception of services or renewal unless otherwise agreed in writing.

5.2 DB shall prepare and send invoices for all amounts due at such intervals and in such form and manner as DB shall deem appropriate.

5.3 DB reserves the right to charge interest on any late or overdue payments. Interest shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 4% above HSBC plc base rate from time to time in force and shall accrue at such a rate after as well as before any judgment. Failure to raise an invoice in respect of interest shall not be deemed to constitute a waiver of DB’s rights to recover interest.

5.4 DB also reserves the right to suspend or end the service in the event of non-payment by the Customer.

6. Allocation

6.1 DB shall allocate a Username(s) and Password(s) to the Customer. The Customer shall allocate a Username and Password to a User.

6.2 DB may withdraw a Customer’s Username and Password and forthwith allocate a new Username and Password at no extra charge where DB has reason to believe such Username or Password has been discovered and/or used by a person without the knowledge, consent or permission, express or implied of the Customer, and on such other occasion as DB shall deem necessary in its reasonable opinion.

6.3 DB shall have the right to withdraw the Username and Password from the Customer if this Agreement or any part hereof is terminated or suspended for any reason.

6.4 DB shall have the right to withdraw a Username and Password where in its opinion there are reasonable grounds for believing the Customer has not complied or is not complying with this Agreement or DB’s Conditions of Use of the Service as published on the website or communicated in some other agreed format.

7. Confidentiality

7.1 Each Party agrees to keep all information about the other’s business (“Confidential Information”) strictly confidential; not to use or copy Confidential Information save as agreed in writing with the other party; and to procure that all persons to whom it discloses Confidential Information are bound by terms of confidentiality at least equivalent to this.

7.2 This clause 7 shall not apply to either party in relation to information that (other than by breach of any duty of confidence) has come into the public domain; is obtained from a third party or was already known to that party before this Agreement; or is required to be disclosed by order of a court of competent jurisdiction.

8. Intellectual Property

8.1 DB shall have sole title and ownership of all Intellectual Property Rights created or developed in the provision of the Services except in relation to any content, text or other material supplied by the Customer to DB or introduced in use of the Service.

8.2 DB will grant to the Customer, once all subscription charges have been paid, a non-exclusive royalty free licence to use the Intellectual Property in connection with the Service for the number of users specified by the Customer and the subscribed period. This licence is personal to the Customer for that number of users only and cannot be assigned or transferred to any person (including, for the avoidance of doubt any group company or associate of the Customer) without the prior written consent of the DB.

8.3 The Customer hereby irrevocably and unconditionally indemnifies and shall hold fully indemnified DB from and against any and all actions, proceedings, loses, damages, liabilities, obligations, costs, claims, charges and expenses suffered by DB of whatsoever nature arising out of or in connection with the Customer’s use of the Service (including but not limited to any related copyrights, trade secrets, trade names, patents, Intellectual Property rights or obscenity laws in any country of jurisdiction in which the content of the Service can be reviewed or retrieved).

9. Customer obligations

9.1 The Username and Password allocated to the Customer by
DB are confidential and personal to the Customer and it is the Customer’s responsibility to keep its Username and Password safeguarded.

9.2 The Customer may at its own discretion change the Password(s) allocated to the Customer using the tools available within the Software, provided that the Customer continues to be responsible for security of access and the safeguarding of the Password(s).

9.3 The Customer undertakes to use the Username and Password in accordance with the Conditions for Use of the Service given by DB to the Customer from time to time whether by publishing on these on the website or otherwise.

9.4 The Customer undertakes to ensure all Users are aware of the
Conditions for Use of the Service and that their use of the Service is in accordance with these conditions.

9.5 The Customer shall notify DB immediately where there are grounds for suspecting that a person has discovered or is making use of the Username and/or Password without the knowledge, consent or permission of DB or the Customer.

9.6 The Customer shall be responsible for all charges incurred for the use of the Service when access to the Service is obtained through the use of the Customer’s Username and Password.

10. Limitation of liability

10.1 DB hereby excludes all conditions, terms, representations (other than fraudulent representations) and warranties relating to the Service supplied or the inability to use the Service supplied under this Agreement (including, but not limited to, procurement of a substitute Service; loss of data, contracts or profits or anticipated savings; or business interruption or for any other indirect or consequential or economic loss whatsoever), whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions or in any special condition attached hereto including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose.

10.2 Nothing in this Agreement shall exclude DB’s liability for death or personal injury resulting from the DB’s negligence.

10.3 DB’s liability in contract, tort or otherwise arising out of or in connection with the performance or observance of DB’s obligations under this Agreement shall be limited to the amount of the most recent annual subscription charge, paid by the Customer to DB in respect of the Services.

10.4 In any event DB shall not be liable in contract, tort or otherwise for any loss of business, contracts, profits or anticipated savings or for any indirect or consequential loss whatsoever.

10.5 In no circumstances shall DB be liable to the Customer for any loss or damage arising from any interruption or cessation of Service.

11. Termination

11.1 The Customer may terminate this Agreement by giving not less than 3 (three) months’ notice in writing to DB prior to the Renewal Date.

11.2 Either party may terminate this Agreement without notice if the other is in breach of a material term or condition and fails to remedy a remediable breach within 30 days of receipt of a written notice to do so specifying the nature of the breach.

11.3 Upon termination of this Agreement howsoever arising the following provisions shall apply:

(a) the rights and obligations of DB and the Customer contained in clauses 7 and 8 shall survive any termination of this Agreement. Termination of this Agreement shall be without prejudice to any rights, which have accrued to either party prior to termination;

(b) the Customer will, within 30 days of the end of the period of notice
to terminate, remove from its storage of any kind and destroy or
return to DB all copies of content and materials downloaded or otherwise obtained via the Service, except those materials in which the Intellectual Property Rights belong to the Customer;

(c) DB shall no longer be obliged to fulfil any of its obligations here under and shall not be obliged to refund to the Customer any payments made by the Customer to DB; and

(d) outstanding invoices and subscription charges and any invoices raised or annual subscription charges due after termination in relation to the use of the Service prior to termination shall continue to be paid in accordance with the terms of this Agreement and any annual subscription charge due in respect of a month shall be payable in full even if the Agreement is terminated before the end of that month.

12. Force majeure

12.1 Neither party shall be liable to the other for any loss or damage which may be suffered by the other party due to any cause beyond the first party’s reasonable control including without limitation any act of
God, inclement weather, failure or shortage of power or fuel supplies, flood, draught, lightening or fire, strike, lock-out, trade dispute or labour disturbance, the act or omission of telecommunications operator, internet service provider, government or highway authorities, public or other competent authority or war, military operations or riot.

13. Non-assignment

13.1 The Customer shall not assign, delegate or otherwise deal with all or any of its rights and obligations under this Agreement without DB’s prior written consent.

14. Entire agreement

14.1 This Agreement represents the entire understanding between the parties in relation to the subject matter hereof and supersedes all other agreements and representations made by either party, whether oral or written and except as provided in condition [4] this Agreement may only be modified if such modification is in writing and signed by a duly authorised representative of each party hereto. Nothing in this Agreement shall be taken as excluding any liability resulting from any fraudulent act or omission of either party.

14.2 This Agreement shall prevail over any inconsistent terms or conditions referred to in the Customer’s application or in correspondence or elsewhere and any conditions and stipulations to the contrary are hereby excluded and extinguished.

15. Service of notices, etc.

15.1 Any notice, invoice or other documents which may be given by
DB under this Agreement shall be deemed to have been duly given if left at or sent by post or fax to an address notified to DB in writing by the Customer as an address to which notices, invoices or other documents may be sent, or the Customer’s usual or last known place of abode or business or, if the Customer is a limited company, its registered office.

15.2 DB’s address for the service of any notice by the Customer under this Agreement shall be such address as is shown on the last invoice rendered to the Customer or such address as DB may prescribe for that purpose. Any such communication shall be deemed to have been made to the other party on the day on which such communication ought to have been received in due course of post or fax.

15.3 DB may at its own discretion (but shall not be obliged to) send invoices to the Customer by electronic mail to an e-mail address notified in writing to DB by the Customer. Any invoice so sent shall be deemed delivered at the time the e-mail is received at the Customer’s e-mail address.

16. No waiver
16.1 Failure by either party to exercise and enforce any rights conferred by this Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or any right on any later occasion.

17. Severability

17.1 In the event that any provision of this Agreement or any part thereof shall be held unlawful or invalid for whatever reason it shall be deleted or such modification made as may be necessary to make it valid and enforceable and so that the remaining provisions hereof shall continue in full force and effect.

18. Governing law

18.1 This Agreement shall be governed by and construed and interpreted in accordance with the laws of England and Wales, and the parties submit to the jurisdiction of the courts of England and Wales.