Universal Terms and Conditions

These Universal Terms and Conditions apply to Services provided to a Customer by Talis Education Ltd (“TEL”) and form part of the Master Services Agreement (“MSA”) between the Customer and TEL.

 

1. Acceptance of Terms and Description of Use

1.1. The MSA incorporates the following in the following order of precedence: (i) Order(s), (ii) Service Schedule(s), (iii) these Universal Terms & Conditions, (iv) Acceptable Use and Privacy Policies. When we use the term MSA or Agreement in any of these documents, we are referring collectively to all of them. The Agreement is effective as at signature of the Order, which may be by an email from TEL confirming acceptance of Order.

1.2. Services are those services as detailed in the Order(s) and the applicable Service Schedules(s). The MSA governs use of the Services.

1.3. Customer means the Institution as set out in the Order and the Institution’s Authorised Users and Authorised Users means the staff and students registered with the Institution or as otherwise specified in the Order(s).

 

2. Content and Take Down

2.1. Any content posted to any website through and/or by which any Services are delivered (“TEL Websites”) by the Customer is known as ‘User Content’ and all other content is known as ‘Site Content’. It is a condition of your use of the Services and the Customer represents and warrants that;

2.1.1. it has legal rights to post, contribute or link to User Content and the inclusion and use of the User Content will not violate any law or the rights of any person;

2.1.2. it is entirely responsible for all User Content it uploads, posts, e-mails, transmits or otherwise makes available in any way by or through the Services; and/or

2.1.3. it has the agreement of a person that is protected by privacy laws.

2.2. Further it is a condition of use of TEL Websites that they must not be used:

2.2.1. to send or store infringing, obscene, threatening, libellous and/or material containing viruses, worms, Trojan horses or other harmful code, files, scripts, agents or programs;

2.2.2. in violation of any law;

2.2.3. to interfere with any other party’s use and enjoyment of TEL Websites;

2.2.4. in any way that imposes an unreasonable or disproportionately large load on infrastructure and/or deliberately degrades or disables TEL Websites or any other computer system or to prevent or impede the delivery of any legitimate data; and/or

2.2.5. to circumvent any usage or rate limits that may be placed on the Customer’s use of TEL Websites.

2.3. TEL has no monitoring obligation but may review User Content and remove any materials in its sole discretion. TEL may disclose any information as TEL deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in TEL’s sole discretion.

 

3. Services

3.1. TEL shall provide the Services from the Service Commencement Date in accordance with the Service Levels. TEL shall have no liability whatsoever if the Services are delayed beyond the Service Commencement Date for reasons attributable to the Customer or reasons that are beyond the reasonable control of TEL.

3.2. TEL can suspend access to the Services or any part of the Services without liability:

3.2.1. during the period of any scheduled downtime needed to carry out maintenance or other modifications to the Services; or

3.2.2. if there is any possible attack on the Services or other event which in TEL’s sole view is a risk to the Services, the Customer or any other customers; or

3.2.3. if TEL considers the Service (or any part) is prohibited by law or it is necessary or prudent to do so for legal or regulatory reasons.

3.3. If TEL suspends any Services under this MSA TEL will so far as it is able use reasonable endeavours to notify of any such suspension and to post updates on the relevant TEL Websites regarding any anticipated timescales for resumption of the Services.

3.4. Where the Services are delivered via internet domain names used by the Customer, it is the Customer’s responsibility to ensure that these domain names are resolvable to the Services. All monitoring of the Services are performed against a standardised instance of the Service which responds to a TEL operated domain name.

3.5. TEL takes nightly backups of User Content. TEL will keep 30 day’s worth of backup files. In the unlikely event of a data corruption or disaster recovery, TEL will restore the relevant Services using the last known-good backup. If any loss or damage to User Content caused by a breach of the MSA the sole remedy is for TEL to use reasonable endeavours to restore the lost or damaged User Content from such latest back.

 

4. IPR

4.1. Except as expressly licensed in the MSA you acknowledge and agree that TEL (or TEL’s licensors) own all legal right, title and interest in and to the Services and the Site Content including any intellectual property rights which subsist in Services and the Site Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

4.2. TEL grants you a non-exclusive, worldwide, royalty free, non-assignable license to use the Services and the Site Content in the manner set out in the MSA and in the way envisaged by the Services.

4.3. Except as expressly licensed in the MSA, TEL acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under the MSA in User Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless the Customer has agreed otherwise in writing with TEL, the Customer agrees that the Customer is responsible for protecting and enforcing those rights and that TEL has no obligation to do so on behalf of the Customer.

4.4. By using the Services and/or the web properties through which the Services are available, the Customer grants TEL a nonexclusive, worldwide, royalty-free, sub-licensable and transferable right to User Content and any information the Customer provides in/directly to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyse, use and commercialise, but only to the extent necessary for the purposes of the business of TEL and subject to TEL complying with all applicable laws in the UK and in Australia, and for the purposes of:

4.4.1. proper provision by TEL of the Services and/or any future services taken by the Customer, and

4.4.2. uses expressly permitted by the Privacy Policy.

If the MSA expires or is terminated in accordance with its terms, the licence under this clause 4.4 will automatically terminate and the Customer may invoke clause 9.7 for retrieval of User Content.

 

5. Copyright Policy

5.1. You agree to set up a process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”). TEL reserves the right to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of infringers.

 

6. Fees

6.1. The Fees in the first year will be set out in the Order(s) and can be made up of year one fees for each Service (“Services Fees”), any fees for implementation (“Implementation Fees”) and fees for converting data (“Data Conversion Fees”), together referred to as “Year One Fees”. Year One Fees are due for payment on or before the Service Commencement Date.

6.2. After the first year, fees are paid by way of an annual subscription (“Annual Subscription Fee”). Prior to each anniversary of the Contract Date (Annual Subscription Date”) TEL will invoice the Customer for that year’s Annual Subscription Fee, which will be in accordance with clause 6.4. Annual Subscription Fees are due for payment on or before the Annual Subscription Date.

6.3. Where further Services are purchased by the Customer after the Contract Date and before an Annual Subscription Date a pro rata charge is payable on or before the Service Commencement Date for that Service for the remaining portion of the year until the Annual Subscription Date.

6.4. Unless agreed otherwise and set out in the Order(s), the Annual Subscription Fee is subject to annual adjustment upon prior notice and, unless TEL is subject to exceptional increases in the costs of providing the Service which shall be fully disclosed to the Customer, this adjustment shall not exceed RPI plus 2%, with RPI being calculated as the annual increase in the UK Retail Prices Index as most recently published by the UK Office of National Statistics at least 30 days prior to the Annual Subscription Date.

 

7. Third-Party Links

7.1. TEL Websites may contain links to other sites, applications or content, which links may appear to embed the sites, applications or content hosted or provided by third parties. The Customer’s use of such other sites, applications or content is subject to the terms of use, if any, governing the use of such sites, applications or content. TEL is not able to control these third party sites, applications or content, and assumes no responsibility for their subject matter, privacy policies, or practices.

7.2. If there is any conflict between the MSA and any terms or notices set forth with respect to any sites, applications or content provided by any third parties, then the terms of such third party sites, applications or content will control your use of such sites, applications or content. Please review carefully any terms or notices for each third party provider of sites, applications or content.

7.3. By using the Services, the Customer expressly relieves us from any and all liability arising from use of any third-party sites, applications or content.

 

8. Indemnity and Limitations

8.1. The Customer indemnifies and holds TEL its directors, officers and employees, harmless (on your own behalf and on behalf of Authorised Users), including costs and attorneys’ fees, from any claim or demand due to or arising out of the Customer and/or Authorised User’s access to and/or use of Services, violation of the MSA, or infringement of any intellectual property or other right of any person or entity.

8.2. In no event will TEL its directors, officers, shareholders, employees or members be liable for (a) any indirect, incidental, punitive, or consequential damages of any kind whatsoever; (b) damages for loss of use, profits, data, images, content or other intangibles; (c) damages for unauthorized use, non-performance of the Services, errors or omissions; or (d) damages related to downloading or posting content. TEL’s total collective and aggregate liability is limited to the Annual Subscription Fees paid in the year the claim arose. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply in total.

8.3. The Services are provided on an “as is” and “as-available” basis, with all faults and without any warranty or condition, express, implied or statutory. To the maximum extent permitted by applicable law, TEL and its suppliers disclaim all warranties of any kind, whether express or implied, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.

8.4. TEL gives no warranty that (a) using the Services will meet your requirements, (b) the Services will be uninterrupted, secure, timely, or error-free, (c) the results that may be obtained from the use of the Services will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by you via the Services will meet your expectations, or (e) any errors in the Services will be corrected. TEL makes no warranty that the Services will be uninterrupted, timely, secure or error-free.

8.5. Your use of the Services is at your sole risk. Any material downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.

 

9. Modification and Termination

9.1. TEL is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services may change from time to time and that, although TEL operates various systems of change notification and customer consultation concerning significant changes, such changes shall be effective without prior notice to you or consent by you.

9.2. Except where the MSA expressly permits TEL to make changes, the terms and conditions of the MSA shall not be amended without the approval of both Parties. TEL shall notify you before making any material permitted changes. Otherwise permitted changes that would materially reduce the scope or quality of the Services to you or your Authorised Users may only be made with your approval, such approval not to be unreasonably withheld or delayed in case of changes to law or regulation or third party action beyond the reasonable control of TEL.

9.3. Unless otherwise specified in the Order, the MSA is for an initial term of three (3) years (“Initial Term”) and will continue thereafter unless terminated by either party by giving to the other party no less than six (6) months prior written notice to expire on the next falling Annual Subscription Date.

9.4. The Customer may terminate the relevant Service if TEL materially fails to provide that Service as agreed and TEL does not remedy that failure within ten (10) Business Days of the Customer’s written notice describing the failure.

9.5. TEL may terminate the MSA or Service(s) at its discretion if;

9.5.1. payment of any invoiced amount is overdue and such overdue amount is not paid within five (5) days of TEL’s written notice;

9.5.2. the Customer fails to comply with any other obligation in the MSA and does not remedy the failure within ten (10) days of written notice by TEL; and/or

9.5.3. the Customer breaches the Acceptable Use and/or Privacy Policy more than once even if such breach is remedied.

9.6. Either party may terminate the MSA if the other is unable to pay its debts or enters into compulsory or voluntary liquidation or compounds with or contravenes a meeting of its creditors or has a receiver or manager or an administrator appointed or ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts.

9.7. TEL may, at any time after a period of thirty (30) days following the date of such termination, destroy or otherwise dispose of any of the User Content in its possession, unless TEL receives a written request for the post termination retrieval of User Content. If TEL receives any such request TEL shall permit retrieval of relevant User Content conditional on:

9.7.1. payment of any fees/charges for such retrieval;

9.7.2. payment in full of any amounts owing to TEL; and

9.7.3. the Customer’s complying with any additional terms and conditions requested by TEL.

 

10. Miscellaneous

10.1. The MSA, as modified from time to time, constitutes the entire agreement.

10.2. The failure of either party to exercise in any respect any right will not be deemed a waiver of any further rights.

10.3. TEL will not be liable for any failure to perform its obligations where such failure results from any cause beyond TEL reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of the MSA is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this MSA shall otherwise remain in full force and effect and enforceable.

10.4. TEL may assign its agreements in whole or in part at any time without consent.

10.5. No one other than a party to this MSA shall have any rights (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term and the rights of the parties to terminate, rescind or agree any variation, waiver or settlement are not subject to the consent of any other person.

10.6. The laws of England will govern all and any claims, legal proceedings or litigation and the courts of England have exclusive jurisdiction and you waive any objection as to inconvenient forum.