Terms and Conditions

Please read these terms and conditions carefully because they form the terms of the legal agreement between us in relation to your purchase of Publisher Products and Lexia Services. In particular, the Customer’s attention is drawn to the limitation of liability contained at conditions 12 and 13.

1. Definitions and Interpretation

1.1. The definitions below apply in these terms and conditions:

Contract: means the contract between Lexia and the Customer for the supply of the Publisher Products and Lexia Services, comprising the Quotation and these term and conditions.

Customer: means the person, firm or company identified in the Quotation who purchases the Publisher Products and Lexia Services.

Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and which are used directly or indirectly in connection with the Publisher Products or the Lexia Services.

Lexia: means LexiaUK Limited a company incorporated in England and Wales under number 05580948 with its registered office at LexiaUK, York House, Market Place, Leyburn, North Yorkshire DL8 5AT.

Lexia Services: means the services to be provided by Lexia to the Customer under the Contract, as detailed in condition 4 of these terms and conditions and the Quotation, together with any other services which Lexia provides, or agrees to provide, to the Customer from time to time.

Publisher: means Lexia Learning Systems Inc or (where appropriate) its affiliated companies.

Publisher Licence Terms: means the Publisher’s standard End User Licence Agreement for the provision of the Publisher Products to customers, in force from time to time, published at:

http://lexialearning.com/privacy/eula/

or available from Lexia on request.

Publisher Products: means the software and related hosting and support services to be supplied by Publisher pursuant to this Contract as detailed in the Quotation and the Publisher Licence Terms.

Quotation: means Lexia’s quotation or proposal to supply the Publisher Products and Lexia Services to the Customer.

Term: means the term of the Contract as detailed in the Quotation.

1.2. In these terms and conditions; headings are for convenience only and shall not affect interpretation; a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); and any obligation on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.

2. Application of Conditions

2.1. By accepting Lexia’s Quotation or by issuing a purchase order in respect of the Publisher Products and Lexia Services detailed in the Quotation, the Customer is agreeing to purchase the Publisher Products and the Lexia Services subject to these terms and conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document issued by the Customer shall not govern the Contract.

2.2. These terms and conditions shall apply to and be incorporated into the Contract and shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of the Quotation, or any other document supplied by the Customer.

2.3. Quotations are given by Lexia on the basis that no Contract shall come into existence except in accordance with condition 2.1 and 2.2 above.

2.4. The Customer acknowledges that errors can sometimes occur, and as such Lexia and the Customer agree that Lexia will not be contractually bound to supply Publisher Products or Lexia Services where the Quotation contains incorrect information.

2.5. Each Quotation shall only be valid for a period of 30 days from the date of its issue.

3. Placing Orders

3.1. The Customer acknowledges that they are responsible for ensuring that the Publisher Products and the Lexia Services are suitable for the Customer’s requirements before accepting Lexia’s Quotation.

3.2. The Customer warrants that it is entitled to accept the Quotation, and agrees that Lexia shall be entitled to accept an order from any individual who has apparent authority to place an order on behalf of an organisation.

4. Evaluation/Trial Period

4.1. Prior to the Customer agreeing to purchase the Publisher Products, the Customer may request a trial or evaluation period from Lexia.

4.2. In the event that such a trial or evaluation is requested, Lexia shall forward this request to the Publisher, and in the event that the Publisher agrees to this request, the Customer and Lexia will enter into a Contract in respect of Publisher Products and Lexia Services to be provided in such evaluation/trial period, and the provisions of these Conditions shall apply to such evaluation/trial period.

4.3. The Customers use Publisher Products during an evaluation/trial period will be governed by the following provisions of this condition 4.3 together with the terms of this Agreement, and the Publisher Licence Terms:

4.3.1. the Customer shall have a non-exclusive, non-transferable right to use the Publisher Products for a period of 30 calendar days from the date of installation, or such other period as agreed between the parties in writing (“Trial Period”);

4.3.2. the Customer shall use the Publisher Products during the Trial Period for a minimum of 3 x 20 minute sessions per pupil per week (i.e. at least 60 minutes in total per pupil per week);

4.3.3. the licence to use the Publisher Products will expire automatically at the end of the Trial Period if the Customer has not at that time agreed to take a full licence;

4.3.4. the licence to use the Publisher Products during the Trial Period may be terminated by Lexia at any time, at Lexia’s sole discretion;

4.3.5. the Customer may not make any back-up or archival copies of the Publisher Products during the Trial Period;

4.3.6. on termination of the licence or expiry of the Trial Period, the Customer shall take all steps as a required by Lexia to uninstall the Publisher Products and shall (within two working days) completely delete all electronic copies of all or any part of the Publisher Products which is resident in its system or elsewhere, and shall delete or return to Lexia any items in its possession which relate to the Lexia Services;

4.3.7. Lexia will provide Lexia Services during the Trial Period pursuant to condition 6 of this Agreement

4.4. In addition to the terms governing the evaluation licence, as set out at condition 4.3 above, the Customer shall, at the request of Lexia, enter into the Publisher’s standard form of end user evaluation licence for such evaluation period, as in force from time to time.

5. Supply of Publisher Product

5.1. By agreeing to purchase the Publisher Products in accordance with condition 2.1 above, the Customer is instructing Lexia to purchase a licence of the Publisher Product for the Term on the Customer’s behalf.

5.2. Subject to condition 5.3 below, the Customer’s licence to use the Publisher Product shall be granted by the Publisher to the Customer subject to the Publisher Licence Terms.

5.3. The Customer acknowledges and agrees that the Publisher may (in its absolute discretion) refuse to grant the Customer a licence of the Publisher Product on the proposed terms of the Quotation, in which event Lexia may terminate the Contract with immediate effect and without any liability to the Customer subject to the Customer receiving a refund of any charges already paid to Lexia for the supply of the Publisher Products and any Lexia Services not yet performed.

5.4. The Customer agrees to comply with and procure that its employees, officers, representatives, advisers, agents or subcontractors comply with the Publisher Licence Terms and shall indemnify Lexia against any and all claims, actions, proceedings, expenses, damages and liabilities (including without limitation any legal fees reasonably incurred by Lexia) which Lexia may incur or suffer as a consequence of any breach of the Customer’s obligations under this condition 5.4.

5.5. Lexia shall use reasonable endeavours to meet any requested timeframes for obtaining the Publisher Products which are specified in the Quotation. However, the Customer recognises that the timeframe for delivery is wholly dependent on the Publisher, and as such any such dates shall be estimates only and time shall not be of the essence for obtaining the Publisher Products.

6. Supply of Lexia Services

6.1. Lexia shall use reasonable endeavours to provide the Lexia Services to the Customer, in accordance (in all material respects) with the Quotation. Unless otherwise agreed in writing, the Lexia Services may comprise and be limited to the following:

6.1.1. Web-based training – Lexia shall provide the Customer with its web- based training package in relation to the use of the Publisher Product, in such form as Lexia shall determine from time to time.

6.1.2. Evaluation – In circumstances where the Customer has obtained a trial/evaluation of the Publisher Products, Lexia shall assist the Customer in reviewing the solution and in advising as to the suitability of the Publisher Products for the Customer.

6.1.3. Reports – Lexia may from time to time, and at its sole discretion, provide the Customer with reports and/or other services in relation to the Publisher Product in terms of analysis of the performance data from the Customer’s use of the Publisher’s Products against recognised UK educational targets/criteria. Such reports and/or other services may be provided on such terms as Lexia shall determine, and may be withdrawn by Lexia at any time without prior notice.

6.1.4. Teacher Support – Lexia shall provide the Customer with a reasonable level of support to teachers in relation to their use of the Publisher Products, such support to be limited to a maximum of six Q&A sessions per year, each Q&A session being either online or over the telephone for a maximum period of 15 minutes and with a maximum of two attendees. Where Lexia considers it appropriate to do so (in its absolute discretion) requests for support shall be escalated or referred to Publisher who shall provide support to the Customer in accordance with their obligations (if any) under the Publisher Licence Terms.

6.2. Lexia may by agreement with the Customer provide additional services which may include (without limitation) training and/ or assistance with implementing upgrades and new releases to the Publisher Product. Unless otherwise agreed in writing any such additional services shall be supplied in accordance with Lexia’s standard scale of charges for such services for the time being in force.

6.3. Where the Customer has declined to use any implementation or training services offered or recommended by Lexia, then Lexia shall not be obliged to provide support in respect of any related issues.

6.4. Lexia shall use reasonable endeavours to meet any performance dates specified in the Quotation or otherwise agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for performance of the Lexia Services.

6.5. Lexia may change the Lexia Services, provided that such changes do not materially affect the nature, scope of, or the charges for the Lexia Services, save where such changes are made in accordance with condition 6.1.3. Where practicable Lexia shall provide the Customer with advance written notice of any such changes.

6.6. Lexia shall not be required to provide the Lexia Services for any version of the Publisher Products which is no longer supported by the Publisher for whatever reason.

6.7. For the avoidance of doubt, all technical support and any other support not provided by Lexia should be obtained by the Customer from the Publisher, pursuant to the terms of the Publisher’s Licence.

7. Customer’s Obligations

7.1. The Customer shall:

7.1.1. co-operate with Lexia in all matters relating to the Lexia Services and provide Lexia, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data, and other facilities as reasonably required by Lexia;

7.1.2. promptly provide Lexia with any information which is required by Lexia in order to order the Publisher Product from the Publisher;

7.1.3. provide to Lexia, in a timely manner, such materials, documentation and other information as Lexia may require and ensure that such are accurate in all material respects;

7.1.4. be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Lexia Services and inform Lexia of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;

7.1.5. ensure that all Customer’s Equipment is in good working order and suitable for use in connection with the Publisher Products and Lexia Services and conforms to all relevant standards or requirements imposed by law or recommended by Publisher or Lexia;

7.1.6. obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the use of the Publisher Products and Lexia Services.

7.2. If Lexia’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Lexia shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

7.3. The Customer shall be liable to pay to Lexia, on demand, all reasonable costs, charges or losses sustained or incurred by Lexia arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to Lexia confirming such costs, charges and losses to the Customer in writing.

8. Charges and Payment

8.1. In consideration of the provision of the Publisher Products and Lexia Services by Lexia, the Customer shall pay the charges detailed in the Quotation or otherwise agreed in writing between the parties.

8.2. Unless Lexia has agreed to charge for its expenses on a fixed price basis (as specified in the Quotation) the Customer agrees to pay the reasonable travel and other expenses (including but not limited to hotel and accommodation expenses) of Lexia’s personnel if they are required to attend at the Customer’s premises or any other location, to provide the Lexia Services.

8.3. All charges quoted to the Customer shall be exclusive of VAT, which Lexia shall add to its invoices at the appropriate rate.

8.4. The Customer shall pay each invoice submitted to it by Lexia, in full and in cleared funds, within 30 days of the date of invoice, to a bank account nominated in writing by Lexia.

8.5. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay any sum due to Lexia (whether under this Agreement or under any other agreement concluded between the parties) on the due date, Lexia shall be entitled to charge interest on such sum from the due date for payment at the annual rate of 5% above the base lending rate from time to time of Barclays Bank Plc (accruing on a daily basis), and/or Lexia or the Publisher may suspend access to the Publisher Product or provision of the Lexia Services (in either case) until payment has been made in full. Time for payment shall be of the essence of the Contract.

8.6. This condition 8 is without prejudice to any right to claim for interest under the law (including without limitation under the Late Payment of Commercial Debts (Interest) Act 1998). Lexia may, without prejudice to any other rights it may have, set off any liability of the Customer to Lexia against any liability of Lexia to the Customer.

8.7. The provisions of condition 16 shall apply in respect of the charges, in the event of Termination of this Agreement.

9. Variations/ Upgrades and Updates

9.1. From time to time, the Publisher may release updates and upgrades for the Publisher Products. The terms on which any such updates and upgrades may be provided, and the additional costs of such updates and upgrades shall be determined by Lexia and the Publisher from time to time

9.2. Should the Customer request any change to this Agreement, including but not limited to, the implementation of an upgrade or update, a change in the number of, or duration of licences of the Publisher Products, to a change in the method or process for payment, then Lexia shall be entitled to levy an administration charge for any such request, the amount of such charge being at Lexia’s sole discretion.

10. Intellectual Property Rights

10.1. The Customer acknowledges and agrees that all copyright and other intellectual property rights in the Publisher Products are owned by Publisher (or its licensors) and the Customer shall not by virtue of this Contract gain any right title or interest therein except (subject to condition 5.3) the rights granted to it by Publisher under the Publisher Licence Terms.

10.2. As between the Customer and Lexia, all copyright, intellectual property rights and other rights in any other documents, specifications, software or materials developed by Lexia in the course of providing the Lexia Services shall be owned by Lexia. Lexia grants the Customer a non-exclusive licence to use such rights to such extent as is necessary to enable the Customer to make reasonable use of the Lexia Services during the Term.

11. Customer Data

11.1. At any time during the term of the Contract, and in order to provide the Publisher Products and/or Lexia Services, Lexia and its sub-contractors, agents and employees may:

11.1.1. provide the Publisher with data and information in relation to the Customer, including but not limited to information which is required in order to process an order; and

11.1.2. may access and process data and information on the Customer’s online account hosted by the Publisher (“the Account”).

11.2. Lexia agrees that, to the extent it processes any personal data (within the meaning of the Data Protection Act 1998) on behalf of the Customer it shall act only on instructions from the Customer and that it shall have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

11.3. The Customer acknowledges and agrees that to the extent that they provide data and information to the Publisher, whether via the Account or otherwise, the provision of such data shall be subject to the Publisher’s privacy policy, as in force from time to time, and Lexia is not responsible for and shall have on liability in relation to the transfer of data between the Customer and the Publisher.

11.4. The Customer shall be responsible for ensuring that, to the extent that any information stored in the Account is “Personal Data” within the meaning of the Data Protection Act 1998, that it has obtained all necessary consents from data subjects in order to allow Lexia and its sub-contractors, agents and employees to access and process such data for the purposes outline at condition 11.1 above.

11.5. The Customer shall indemnify Lexia for any cost, claim, or expense arising as a result of the Customer breaching any of the Data Protection Requirements.

For the purposes of this condition “Data Protection Requirements” means the Data Protection Act 1998, the Data Protection Directive (95/46/EC), 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 relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner, and the equivalent of any of the foregoing in any relevant jurisdiction.

12. Confidentiality

12.1. The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Lexia, its employees, agents, consultants or subcontractors and any other confidential information concerning Lexia’s business or its products which the Customer may obtain including the Publisher’s Materials.

12.2. The Customer may disclose such information to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and as may be required by law, court order or any governmental or regulatory authority. The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 12. The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.

13. Warranties

13.1. Lexia warrants that it will use reasonable endeavours to procure the supply of the Publisher Product in accordance with the condition 2.1 and that the Lexia Services shall be performed using reasonable skill and care.

13.2. Save as expressly set out in this Agreement, all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

13.3. The Customer acknowledges and agrees that the Publisher Products are made available to the Customer by Publisher pursuant to the Publisher Licence Terms. Accordingly, save as set out in condition 13.1 above, Lexia gives no warranties and can accept no liability in relation to the Publisher Products whatsoever, including in relation to their availability or performance. The Customer agrees that in so far as it requires warranties and/or guarantees in respect of the Publisher Products, the Customer must rely on its rights under the Publisher Licence Terms.

14. Limitation of Liability

14.1. This condition 14 sets out the entire financial liability of Lexia (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of any breach of the Contract, any use made by the Customer of the Lexia Services or Publisher Products or any part of them and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

14.2. Nothing in these terms and conditions limits or excludes the liability of Lexia for death or personal injury resulting from negligence or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Lexia.

14.3. Subject to condition 14.2, Lexia shall not be liable for:

14.3.1. loss of profits, loss of business, depletion of goodwill, loss of anticipated savings, or loss of contract; or

14.3.2. loss of corruption of data or information; or

14.3.3. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

14.4. Subject to condition 14.2, Lexia’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid by the Customer to Lexia for the Publisher Products and Lexia Services in the 12 months immediately preceding the event (or last in a series of events) giving rise to the liability.

15. Term and Termination

15. 1. This Contract shall come into force upon acceptance of Lexia’s Quotation in accordance with condition 2.1 or such other date as may be specified in the Quotation. Subject to condition 15.3 the Contract shall continue in force for the Term.

15.2. For the avoidance of doubt, any renewals of the licence for the Publisher Products following expiry of the Term shall be on terms and at such prices as negotiated between the parties, and any quotation issued in respect of a renewal shall be valid for a period of 30 calendar days from the date of its issue.

15.3. Without prejudice to any other rights or remedies which Lexia may have, Lexia may terminate the Contract with immediate effect, without liability to the Customer on giving the Customer written notice if:

15.3.1. the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or

15.3.2. the Customer commits a breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing of the breach; or

15.3.3. the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or

15.3.4. the Customer is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt, or enters into liquidation (whether compulsory or voluntary) or makes any arrangement with its creditors or petitions for an administration order or has a receiver or manager or administrator appointed over all or part of its assets or generally becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or suffers any similar or analogous event to any of the foregoing in any jurisdiction in consequence of debt;

15.3.5. the Customer’s licence to use the Publisher Products is terminated or expires for any reason; or

15.3.6. Lexia’s right to re-sell Publisher Products or to provide the Lexia Services, ceases for whatever reason.

15.4. On termination of the Contract for any reason the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

16. Consequences of Termination

In the event that the Customer’s licence to use the Publisher’s Products is terminated for whatever reason, the Customer shall not be entitled to a refund of any charges paid to Lexia, and in addition shall be required to pay all charges due pursuant to condition 8, and provided that to the extent that such charges have not yet become due pursuant to the Quotation, all such charges shall become immediately due and payable on termination. In circumstances where the Customer’s licence is terminated other than due to the Customer’s default, then Lexia may, at its sole discretion, agree to a pro-rata reduction to the amount of charges payable.

17. Miscellaneous

17.1. Lexia shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

17.2. Subject to condition 6.5, no variation of the Contract or these terms and conditions shall be valid unless agreed in writing between the parties.

17.3. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.

17.4. If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.

17.5. The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly provided in the Contract.

17.6. The Customer shall not, without the prior written consent of Lexia, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the Contract. Lexia may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights and obligations under the Contract.

17.7. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

17.8. A notice required or permitted to be given by either party to the other under these terms and conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

17.9. A person who is not a party to the Contract shall not have any rights under or in connection with it.

17.10. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter.