Practice Pal is a music education hub through which teachers and students of music have digital access through desktop and mobile software applications respectively to a platform that delivers education services intended to facilitate music teaching and learning.
The desktop software application available to music teachers retained by the School delivers the platform enables such teachers to deliver online music teaching to students.
The School wishes to use the application and the platform and to make it available to its teachers for music teaching purposes.
Practice Pal has agreed to provide, and the School has agreed to take and pay for the right to download the application and use the Platform, subject to the terms and conditions of this agreement.
The following definitions and rules of interpretation apply in this agreement.
Acceptable Use Policy: the acceptable use policy of Practice Pal set out in Schedule 1.
Account: as the context admits, the accounts set up with Practice Pal of the School itself and of individual Teachers and Administrators that enable them to install the Application( and “Account” shall in context refer to accounts set up for Students pursuant to Student Terms).
Administrators: relevant personnel appointed by the School to have access to the Application for administrative and supervisory purposes.
Application: the desktop application developed by Practice Pal that provides the Platform (including both source code and object code but excluding any Teacher Content).
Authorised Users: Administrators and Teachers nominated by the School to create their own Accounts in order to have access to the Application and the Platform.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information and treated under clause 11g.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); [and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
EEA: all countries within the European Economic Area.
Effective Date: the date on which the School installs the Application.
Encore: Encore Technologies Limited, a company registered in England and Wales under number 09307379 the registered office of which is at 71a Abbeville Road, London SW4 9JW.
Fees: the subscription fees payable by the School determined from time to time in accordance with clause 9.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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, and Intellectual Property Rights include, without limitation, the trade mark PRACTICE PAL (whether or not registered), URLs and domain names and the “look and feel” of the Application and the Platform.
Normal Business Hours: 0900 to 1730 local UK time, each Business Day.
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Platform .
Platform: Practice Pal’s infrastructure and cloud computing platform and runtime environment made available by way of the Application, which delivers services as described in the Platform Description together with other services, features or functionalities may be integrated into the Platform from time to time.
any unauthorised third party access to the Platform; or
any use of the Platform by any Authorised User that is in breach of the Acceptable Use Policy and has the potential to materially impact the Platform by any other customer of Practice Pal or any of that customer’s end users; or
any Vulnerability or Virus introduced into the Platform by (or facilitated through) the School or any Authorised User.
Student: any music student or pupil of the School.
Student Terms: the terms and conditions incorporated in the contractual agreement made between Practice Pal with parents or guardians of Students (or in some cases with Students themselves) subsequent to this agreement that provides inter alia for Students to use a mobile application to access music lesson given by Teachers.
Teacher: any teacher employed, retained or contracted to the School to teach music to Students.
Teacher Content: all text, information, data, software, images, audio or video material (including but not limited to recordings of music lessons, written notes, annotations to music), in whatever medium or form, inputted by Teachers (or by the School on their behalf) but excluding all personal data and authentication information provided in relation to any Account.
Term: the term of this agreement commencing on the Effective Date and terminating in accordance with clause 14.1.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Virus: 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.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
A reference to writing or written includes faxes and emails.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Subject to the School not being in breach of its payment obligations under clause 9 and the other terms and conditions of this agreement, Practice Pal hereby grants to the School a non-exclusive, non-transferable right during the Term to permit the Authorised Users to install the Application and use the Platform solely for the purposes set out in this agreement:
In relation to the Authorised Users, the School undertakes that:
each Authorised User shall keep a secure password for their use of the Application, and that each Authorised User shall use all reasonable endeavours to keep their password confidential;
it shall disable any Authorised User’s access to the Application promptly upon termination or suspension of such Authorised User’s employment or services contract with the School;
it shall maintain a written, up-to-date list of current Authorised Users and provide such list to Practice Pal within five Business Days of Practice Pal’s written request at any time or times;
if it comes to the notice of Practice Pal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Practice Pal’s other rights, Practice Pal shall promptly disable such password.
The School shall comply with the Acceptable Use Policy and shall procure the compliance with the Acceptable Use Policy, by the Teachers specifically but not exclusively in relation to all Teacher Content, and of all Authorised Users.
If Practice Pal becomes aware of any breach of the Acceptable Use Policy, it shall:
immediately notify the School that it is entitled to suspend the relevant Account;
remove relevant Teacher Content; and
if relevant, suspend further access to the Platform by the School or any Authorised User.
Whenever Practice Pal reasonably suspects that there has been a breach of the Acceptable Use Policy by any Teacher, the School shall permit it to audit all Teacher Content to ensure compliance with the Acceptable Use Policy. Such right to audit shall be exercised at Practice Pal’s expense, with reasonable prior notice. For clarity, the parties acknowledge that Practice Pal is not obliged to carry out any such audit.
Notwithstanding any other provision in this agreement, if there is a Security Event, Practice Pal may, without liability or prejudice to its other rights and without prior notice to the School or any Authorised User, remove the relevant Teacher Content and disable the School Account, any Authorised User Account and restrict or deny access to the Application until the relevant Security Event has been resolved. Practice Pal shall give the School written notice as soon as is reasonably practicable of the nature of the relevant Security Event and. As appropriate, restore access to all relevant Accounts as soon as practicably possible.
The School shall not:
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software relating to the Application or the Platform in any form or media or by any means; or
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the such software;
access all or any part of the Application or the Platform in order to build a product or service which competes with the Application or the Platform;
use the Application or the Platform to provide services to third parties other than the Students;
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Application or the Platform available to any third party except the Authorised Users, or as permitted to Practice Pal by virtue of the Student Terms; or
knowingly introduce, or permit the introduction of, any Virus or Vulnerability into the Application or the Platform.
The School shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use, promptly notify Practice Pal.
Any Open-Source Software provided by Practice Pal is provided “as is” and expressly subject to the disclaimer in clause 2(c). Such terms and conditions shall govern such use to the extent that they expressly supersede this agreement.
The School acknowledges that Accounts enabling access to the Application and the Platform are set up as described in outline in Schedule 2 and that such outline is not necessarily comprehensive of all details of such set up and of Practice Pals’s mode of operation or business model and that the wording of Schedule 2 is not intended to establish any further contractual terms.
Practice Pal shall, during the Term:
provide the Application with access to the Platform by Authorised Users for installation by the School on and subject to the terms of this agreement; and
enable all Authorised Users to connect via the internet to the Application and the Platform and to use the Platform in accordance with this agreement on condition that the School utilises compatible devices and adequate internet connections.
The obligations on Practice Pal under clause 3.1 are conditional upon the School having obtained from Practice Pal a link that enables the School to create an Account with Practice Pal and such Account being established and confirmed by Practice Pal.
Such Account, when established, shall appoint the Administrators who shall have access to the Platform in order to review and supervise (jointly by more than one Administrator) Teacher Content for the purpose of audit, supervision and safeguarding by the School.
From time to time Practice Pal may:
modify the Platform by issuing updates; and
make new features, functionality, applications or tools available on the Platform, whose use may be subject to the School’s acceptance of further terms and conditions,
and publish information regarding such updates or features on the Website shall give the School prompt written notice of material modifications and any such new features, functionality, applications or tools
Practice Pal shall be entitled to change its Fee rates in accordance with clause 9.2 but on giving reasonable notice to Practice Pal the School may reject any such change by terminating the School’s Account. If the Fee rate changes are not rejected by the School, the Fees payable by the School shall be deemed to have been amended accordingly.
Practice Pal may make other changes to the provisions of this agreement from time to time, but if it materially changes such provisions, Practice Pal shall give the School 10 Business Days’ notice before the changes take effect, during which time the School may reject any such change by terminating the School’s Account.
The School acknowledges and agrees that if it uses the Platform after the date on which such provisions have changed, Practice Pal will treat the School’s use as acceptance of the changed provisions.
Although in all instances Practice Pal shall observe its obligations under the Data Protection Legislation to delete personal data when it is entitled to do so, Practice Pal is not responsible or liable for any accidental or inadvertent loss or deletion of or failure to store any Teacher Content or communications maintained or transmitted through use of the Platform.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
The parties acknowledge that:
the School is the controller of personal data relating to Students, Administrators and Teachers and Practice Pal is the processor for the purposes of the Data Protection Legislation.
Schedule 3 sets out the scope, nature and purpose of processing by Practice Pal, the duration of the processing and the types of personal data and categories of data subject.
personal data may not be transferred or stored outside the UK and EEA unless strictly necessary under this agreement or with the consent of the School and in each case in accordance with the Data Protection Legislation.
Without prejudice to the generality of clause 6, the School will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Practice Pal for the duration and purposes of this agreement so that Practice Pal may lawfully use, process and transfer the personal data in accordance with this agreement and, without limitation, the School shall ensure that all Teachers have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all Teacher Content by the School or Practice Pal in accordance with this agreement.
Without prejudice to the generality of clause 6, Practice Pal shall, in relation to any personal data processed in connection with the performance of its obligations under this agreement:
process that personal data only in accordance with the Data Protection Legislation and any legitimate documented written instructions of the School;
ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
assist the School, at the School’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the School without undue delay on becoming aware of a personal data breach;
at the written direction of the School, delete or return personal data and copies thereof to the School on termination of the agreement unless required by law (inclusive of law relating to safeguarding) to store the personal data; and
make available all information necessary to demonstrate its compliance with this clause 5 and immediately inform the School if, in the opinion of Practice Pal, an instruction infringes the Data Protection Legislation.
Practice Pal has appointed Encore to build and develop the Platform. In the course of so doing, Encore may from time to time view personal data held on the Platform and Practice Pal has a legitimate interest pursuant to the Data Protection Legislation and reasonable purposes to allow Encore to do so.
In the event that for any lawful and reasonable purpose Practice Pal wishes to appoint any third party processor of personal data under this agreement other than Encore, the School will consent to such appointment on condition that the third party processor is identified to the School and that Practice Pal confirms that third-party processor will enter into a written agreement incorporating terms which are substantially similar to those set out in this clause 5 and which Practice Pal undertakes will reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the School and Practice Pal, Practice Pal shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
Practice Pal undertakes that the Platform will perform substantially in accordance with the Platform Description and with reasonable skill and care.
The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Platform contrary to Practice Pal’s instructions, or as a result of the uploading of any Teacher Content.
If the Platform does not conform with the undertaking in clause 7.1, Practice Pal will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the School with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the School’s sole and exclusive remedy for any breach of the undertaking set out in clause 1. Notwithstanding the foregoing, Practice Pal:
does not warrant that:
the School’s or any Authorised Users’ access to the Platform will be uninterrupted or error-free;
the use of the Platform will meet the Customer’s or any End-User’s requirements; or
the Platform or the Application generally will be free from Vulnerabilities; and
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the School acknowledges that access to the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This agreement shall not prevent Practice Pal from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
Practice Pal warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
all necessary co-operation in relation to this agreement; and
all necessary access to such information as may be required by Practice Pal,
in order to open Accounts and thereafter provide the Application;
without affecting its other obligations under this agreement, comply with all applicable laws and regulations, including any of those relating to safeguarding of Students and the Data Protection Legislation with respect to the Application;
ensure that the Authorised Users use the Platform in accordance with the terms and conditions of this agreement and shall be responsible for breach of this agreement caused or contributed to by any acts or omissions on the part of any Authorised User;
ensure that its network and systems comply with the relevant specifications appropriate from time to time for the installation of the Application;
be solely responsible for procuring, maintaining and securing its relevant network connections and telecommunications links from its systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the School’s network connections or telecommunications links or caused by the internet.
Access by the School and Authorised Users to the Platform shall, subject to this agreement, be provided by Practice Pal in consideration of payment by the School of the Fees.
The Fees with respect to such access shall be as notified to the School and agreed with Practice Pal separately but they shall be determined in accordance with Practice Pal’s standard rates that are set out on the Website. Practice Pal reserves the right to amend such rates from time to time and increase the Fees on written notice to the School in accordance with any amendments to such rates.
Practice Pal’s determination of the usage of the Platform by any Authorised Users and the Fees due accordingly shall, in the absence of manifest error, be final.
Practice Pal shall as further agreed with the School, issue an electronic statement payable at or after the end of each week, month, term (or other period as agreed) of usage for the Fees payable in respect of such period . Those Fees shall be due 20 Business Days after the date of the relevant statement.
The School may on the Effective Date provide to Practice Pal valid, up-to-date and complete credit card details acceptable to Practice Pal and/or any other relevant valid, up-to-date and complete contact and billing details, or agree with Practice Pal any other mutually convenient method of payment including but not limited to direct debit or bank transfer and to implement payment of all amounts due by the agreed means of payment, no later than 30 Business Days after the date of the relevant statement .
If Practice Pal has not received payment within 30 Business Days after the due date, and without prejudice to any other rights and remedies of Practice Pal:
Practice Pal may, without liability to the School, disable the School’s Account and password and all connected Teacher Accounts and all access to the Application and Practice Pal shall be under no obligation to renew or reinstate any such Account while the relevant invoice(s) remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 2% over the then current base lending rate of Practice Pal’s bankers in the United Kingdom from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
shall be payable in pounds sterling;
are non-cancellable and, in the absence of manifest error, non-refundable;
are exclusive of any value added tax or other sales tax, which shall be added where due to the School’s invoice(s) at the appropriate rate.
The School waives, to the extent permitted by law, all claims relating to Fees unless claimed within 90 Business Days of the date of the relevant invoice any rights, but any rights the School may have against its credit card issuer, if relevant, shall not be affected.
The School acknowledges and agrees that Practice Pal and/or its licensors own all Intellectual Property Rights in the Application, the Platform and the Platform Description. Except as expressly stated in this agreement, this agreement does not grant the School any rights to, or in any Intellectual Property Rights or any other rights or licences in respect of the Application, the Platform and the Platform Description.
Practice Pal acknowledges and agrees that the Teachers and/or the School may own any Intellectual Property Rights or other rights with respect to the Teacher Content and that the Teachers assert all moral rights granted under Chapter IV of the Copyright, Designs and Patents Act 1988 and if relevant of the right to be identified as a performer pursuant to section 205C of such Act.
The School shall, or shall procure that the Teachers, grant to Practice Pal a non-exclusive and perpetual right to retain and store any Teacher Content on the Platform or elsewhere (which Practice Pal shall do for a period or periods of time calculated in accordance with Practice Pal’s own reasonable discretion).
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party’s lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
is independently developed by the receiving party, which independent development can be shown by written evidence; or
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents (and also, in the case of the School only, by the Authorised Users) in breach of the terms of this agreement.
Practice Pal shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
The above provisions of this clause 11 shall survive termination of this agreement, however arising.
The School shall defend, indemnify and hold harmless Practice Pal against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:
the Teacher Content;
any breach in connection with the use of the Application or the Platform of the School’s safeguarding or data protection policies or of the School’s legal obligations in connection with safeguarding of Students or personal data; or
the School’s or any Authorised User’s use of the Application or the Platform.
Practice Pal shall defend the School, its officers, directors and employees against any claim that the use of the Application or the Platform in accordance with this agreement infringes any Intellectual Property Rights of any third party and shall indemnify the School up to a limit of £1,000,000 for any amounts awarded against the School in judgment or settlement of such claims, provided that this indemnity does not apply to the extent that any such claim is based on the use of any Open-Source Software.
The obligations of Practice Pal and the School under clause 1 and clause 12.2 respectively are conditional on:
the indemnifying party being given prompt notice of any relevant claim;
the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party expense; and
the indemnifying party being given sole authority to defend or settle such claim.
Except as specifically provided in this agreement, the enforcement and protection of a party’s Intellectual Property Rights shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.
In the defence or settlement of any claim, Practice Pal may procure the right for the School to continue using the Application or any part of the Platform, replace or modify any feature or functionality thereof so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on two Business Days’ notice to the School without any additional liability or obligation to pay liquidated damages or other additional costs to the School.
In no event shall Practice Pal, its employees, agents and subcontractors be liable to the School to the extent that the alleged infringement is based on:
a modification of the Application or the Platform by anyone other than Practice Pal;
the use of the Platform by the School or any Authorised User in combination with any Teacher Content;
the use of the Platform by the School or any Authorised User in a manner contrary to any instructions given by Practice Pal; or
the use of the Platform by the School or any Authorised User after notice to the School of the alleged or actual infringement from Practice Pal or any appropriate authority.
The foregoing and clause 4(b) state the School’s sole and exclusive rights and remedies, and the Practice Pal’s (including the Practice Pal’s employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.
This clause 13 sets out the entire financial liability of Practice Pal (including any liability for the acts or omissions of its employees, agents and subcontractors) to the School or any Authorised User:
arising under or in connection with this agreement;
in respect of any use made by the School or any Authorised User of the Application, the Platform or any part of them; and
in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
Except as expressly and specifically provided in this agreement:
the School and the Teachers assume sole responsibility for results obtained from the use of the Application or the Platform by them, and for educational value derived from such use. Practice Pal shall have no liability for any damage caused by errors or omissions in any information or guidance provided on the Platform to the School or any Teacher or any action taken by it at the School’s direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
the Application, the Platform and the Platform Description are provided to the School and the Authorised Users on an “as is” basis.
Nothing in this agreement excludes the liability of Practice Pal:
for death or personal injury caused by Practice Pal’s negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 2 and clause 13.3:
Practice Pal shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
Practice Pal’s total aggregate liability in contract per claim , tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid by the School during the 12 months immediately preceding the date on which the claim arose.
This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue in force for as long as the School uses the Platform and the Fees are paid, unless:
Practice Pal notifies the School of termination of its Account (and all of its Authorised User Accounts) on the ground that there has been no use of the Application by an Authorised User for more than 90 Business Days, in which case this agreement shall terminate 7 Business Days after the date of that notice;
the School closes its Account on written notice to Practice Pal (which shall automatically deem the closure of all open Teacher Accounts);
if at any time there are no Student Terms in force, for avoidance of doubt with respect to Students of the School; or
it is otherwise terminated in accordance with the provisions of this agreement.
Without affecting any other right or remedy available to it, Practice Pal may terminate this agreement with immediate effect by giving written notice to the School if:
the School fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
the School commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so. For avoidance of any doubt, any breach by any Administrator or Teacher shall be deemed to be a breach by the School.
On termination of this agreement for any reason:
all licences granted under this agreement shall immediately terminate;
Practice Pal may destroy or otherwise dispose of any of the Teacher Content in its possession unless Practice Pal receives, no later than ten Business Days after the effective date of the termination of this agreement, a written request for the delivery to the School and electronic copy of the Teacher Content. Copies of all Teacher Content will be sent to the School by Practice Pal (if the School so requests) upon expiry or termination of the agreement (save in the event that the School has breached this agreement). Practice Pal shall use reasonable commercial endeavours to deliver the copy to the School within 30 days of its receipt of such a written request, provided that the School has, at that time, paid all Fees outstanding at and resulting from termination (whether or not due at the date of termination). The School shall pay all reasonable expenses incurred by Practice Pal in returning or disposing of Teacher Content;
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced;
any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement, including clause 1 (Interpretation), clause 7 (data protection), clause 11 (Confidentiality), clause 12 (Indemnity) and clause 14 (Term and termination), shall remain in full force and effect; and
any outstanding balance of Fees becomes immediately due and payable.
Practice Pal shall have no liability to the School under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, epidemics or pandemics, 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, provided that the School is notified of such an event and its expected duration.
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.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
The School shall not, without the prior written consent of Practice Pal, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
Practice Pal may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this agreement.
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under this agreement shall be in writing and shall be given by email or, at the relevant party’s option by pre-paid first-class post or recorded delivery post to the other party at its email (or postal address set out in this agreement), or such other address as may have been notified by that party for such purposes
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1: Acceptable use policy
Neither the School nor any Authorised User shall access, store, distribute or transmit any Viruses, or any material during the course of its use of the Application that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
in a manner that is otherwise illegal or amounts to cyber-bullying or causes damage or injury to any person or property.
Schedule 2: Creation and Operation of Accounts
The School creates an Account with Practice Pal having demonstrated to Practice Pal that it has in place adequate and properly enforced Student safeguarding and data privacy policies. The Account is accessible from a browser-based dashboard and may be accessed by any number of Administrators chosen by the School, each Administrator having individual links to the Platform for supervisory, safeguarding and regulatory purposes through each of every Administrator’s personal Account.
The creation of the School’s Account further enables Teachers to set up their own personal Accounts to enable them to deliver online music lessons to relevant Students. The foregoing Accounts may then create links with such Students generally with their parents or guardians wishing to receive music lessons from any Teacher/s (these links may be to the parents or guardians of the Students) and the contact details of the Students/parents/guardians who respond positively are forwarded (with valid legal justification under the Data Protection Legislation as the School’s responsibility) to Practice Pal.
The links are generated in an automatically sent email when the name and email address of the parent or guardian is entered into the dashboard of the Teacher before the parent or guardian is invited to enter into the Student Terms. Once the parent or guardian received the email with the link, they can then choose to create a Student Account. Practice Pal thereafter sets up the Account with respect to each such Student which is activated on the conclusion of Student Terms with each of them. Each Student is then enabled through his own mobile application provided by Practice Pal to connect to the Account of the relevant Teacher and receive music lessons on the Platform at scheduled times.
Schedule 3: Processing, Personal Data and Data Subjects
Processing by Practice Pal: viewing, storing video and audio files and information related to the foregoing, all showing Students and Teachers. Processing personal data of other individuals including Administrators and other School personnel involved in the setting up of the School’s Account. Sending links to Teacher Content video/audio files and evaluations and progress reports on Students to parents and guardians of such Students.
Purpose of processing: effective provision of music education to Students by Teachers.
Duration of the processing: 2 years following the date of any recording available on the Platform or indefinite where justified for safeguarding purposes
Types of personal data: names, ages, contact details, audio/video images and music education performance criteria of Students; names, contact details and audio/video images of Teachers. Names and contact details of Administrators.
Categories of data subject: Students, Teachers and Administrators.
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