Renaissance Learning UK Ltd

Terms and Conditions for Application Hosting Agreement

1. Recitals and Definitions

The agreement (“Agreement”) is made between Renaissance Learning UK Ltd, 32 Harbour Exchange Square, London, E14 9GE ("RLUK") and the school or other organisation identified on the Quotation overleaf (“the Customer”).

The Customer desires RLUK to provide application hosting services as set forth in the quotation document(s) overleaf for certain Hosted Applications (as defined below) to the Customer (“Services”), and RLUK desires to provide such Services to the Customer pursuant to these terms and conditions.

The Services will be provided by RLUK to the Customer for a single software application or multiple related software applications as identified and set forth in the quotation document(s) overleaf (collectively referred to as the "Hosted Application") separately licensed by RLUK to the Customer which will be operated on the server systems installed and operated by RLUK. The Customer will be given access to the Hosted Applications via either a public domain (Internet) or private domain (leased line) network as set forth below.

2. Provision of Services

2.1  In consideration of and subject to the payment by the Customer of the fees set forth in the quotation document(s) overleaf (the “Fees”), RLUK agrees to use reasonable endeavours to provide the Services to the Customer. The Customer agrees to pay the Fees in accordance with the terms and the time periods set forth in the quotation document(s) overleaf.

2.2  RLUK hereby grants the Customer a non-exclusive, royalty-free, nontransferable, limited, terminable, licence for the term of this Agreement to access the
Hosted Application solely to the extent necessary for the Customer to use the Hosted Application. Notwithstanding the licence granted, RLUK reserves the right to restrict or prevent access to any functions that allow access to critical server or system resources outside of those necessary to operate the Hosted Application.

The Customer further understands that it will not be given access to directly modify the Hosted Application, functions thereof or any of RLUK’s directories or databases.

2.3  RLUK will install the Hosted Application and related software on a server or servers housed at a hosting facility chosen by RLUK (which, subject to paragraph 11, may include, without limitation, the servers of RLUK’s affiliates in the United States of America). Any separate installation fees will be listed in the quotation document(s) overleaf. RLUK will use reasonable endeavours to ensure that the Hosted Application is installed correctly and is operating in accordance with its respective user documentation manuals. RLUK agrees that it shall also provide the Customer with: (i) an administrative logon ID to access and use the Hosted Applications; (ii) any additional client side software needed to access the Hosted Application; and (iii) any other reasonable information required by the Customer to connect to and use the Hosted Application.

2.4  Although RLUK will install hosted application software for several different customers on one server or servers, RLUK shall use reasonable endeavours to ensure that as far as possible, each customer's applications are installed in separate directories and separate databases, and operate independently from one another.

2.5  RLUK may at its discretion modify or change the Services upon prior reasonable notice to the Customer.

2.6  The parties may from time to time agree that further software applications should be hosted by RLUK in accordance with the terms of this Agreement. In these cases, the quotation document(s) sent to the Customer in relation to such application(s) shall be deemed added to this Agreement and the software
application(s) shall be added to the definition of Hosted Application and this Agreement shall be interpreted accordingly.

3. Customer Responsibilities and Acknowledgements

3.1  The Customer acknowledges and agrees:
(i) that the Hosted Application will be housed at an RLUK chosen hosting facility (which may be in the United States of America), and will be operated on a server or servers as determined by RLUK;
(ii) that under this Agreement RLUK will only provide Services as detailed in paragraph 2 above, and any other services requested by the Customer from RLUK, may result in fees in addition to the Fees; and
(iii) it shall be responsible for the use of the Services in accordance with any security or use related requirements laid down by RLUK.

4. Term, Termination and Renewal

4.1  This Agreement shall be effective from the date that RLUK confirms acceptance of the Customer’s order or the date that the Hosted Application is installed on the hosting facility servers, and is made available to the Customer, whichever is the earlier. The Customer may terminate the Agreement prior to installation of the software or within 30 days from the date of RLUK’s acceptance of order, which ever is the sooner. All cancellations during this period will only be accepted in writing and will take effect from the date received by RLUK. A cancellation fee of £150 excluding VAT will apply to cover administration costs.

4.2  Unless terminated earlier as outlined in this paragraph 4, this Agreement will remain in effect for the duration specified in the quotation document(s) attached overleaf or, if no duration is specified in the quotation document, for a period of one (1) year from the date a Hosted Application is installed on the hosting facility servers and is made available to the Customer (“Initial Term”).

4.3  At the end of the Initial Term, the Agreement shall automatically renew for successive one (1) year terms (“Renewed Term”) at RLUK's then current pricing unless either party provides written notice of termination at least sixty (60) days in advance of the end date of the Initial Term or the applicable Renewed Term, such notice to expire no earlier than the end of the Initial Term or the current Renewed Term (as applicable). If such notice has not been given but RLUK’s pricing in respect of the Services changes during the sixty (60) day notice period before the end of the Initial Term or the Renewed Term (as applicable), the Customer may terminate this Agreement by providing written notice of termination with a notice period equal to the remaining term of the Agreement.

4.4  Either party may terminate this Agreement if the other party commits a material breach (including any breach of warranty), and in the case of a breach capable of remedy, such breach is not cured within fourteen (14) days of receipt of notice specifying the breach.

4.5  RLUK may terminate this Agreement immediately upon notice if the Customer is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the Customer (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the Customer or the Customer enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction.

4.6  Upon termination for breach of this Agreement as set forth in paragraph 4.4 above, any fees paid by the Customer to RLUK will be prorated over the term of the Agreement, and RLUK shall refund that portion of funds that represent the unused Services. Any fees paid to RLUK for services other than the Services including but not limited to data conversions, set up fees, programming or other customisations or additional services shall however not be refunded.

4.7  Upon expiry or termination of this Agreement:

(i) RLUK shall stop providing the Services to the Customer including removal of the Customer’s database from RLUK's server; and
(ii) each party shall return to the other or destroy (at the discretion of the disclosing party) the confidential or proprietary information of the other (including but not limited to any personal data) provided under this Agreement.

4.8  Any termination or expiry of this Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after that termination including but not limited to any obligation in relation to the payment of Fees and paragraphs 4.6, 4.7, 5, 6, 8, 9 and 12.1.

5. Data Protection

5.1  RLUK will use appropriate technical and organisational measures to protect any ‘personal data’ (as such term is defined in the Data Protection Act 1998 (the “DPA”)) that are hosted by RLUK pursuant to this Agreement against unauthorised or unlawful processing or accidental loss, destruction or damage.

5.2  RLUK will act only in accordance with the terms of this Agreement and the Customer’s reasonable instructions in relation to the personal data that RLUK
processes on the Customer’s behalf pursuant to this Agreement.

5.3  RLUK will inform the Customer of any subject access requests that it receives in connection with the personal data that it processes pursuant to this Agreement, and RLUK will use reasonable endeavours to assist the Customer (at the Customer’s request and cost) with dealing with any such subject access requests.

6. Confidentiality

6.1  RLUK shall not disclose to any third party including students or teachers information from the Hosted Application’s database that includes names, identification numbers or any other identifying data without the prior written consent of the Customer.

6.2  RLUK may inspect data in the Hosted Application's database from time to time and use it in a manner consistent with improving and correcting the performance and functionality of the Hosted Application and Services, or as part of ongoing research studies on the effectiveness of the Hosted Application. The Customer shall issue any notices or obtain any consents in relation to RLUK’s inspection or use of the data in the Hosted Application’s database as RLUK may reasonably request in order to comply with the DPA or otherwise.

6.3  The Customer will not disclose to any third party any technical or non-technical information related to the Services or relative to the set-up and security of the Services, unless such disclosure is approved in writing by RLUK. This set-up and security information includes but is not limited to hosting service Internet addresses, passwords, Internet URL's, Virtual Private Network set-up and encryption key information.

6.4  For any other confidential or proprietary information of the other party related to this Agreement, while the Agreement is in force and thereafter neither party shall disclose to any person or entity, other than its employees or other persons to whom disclosure is reasonably necessary, any confidential or proprietary information of the other party. Provided however that a party receiving confidential or proprietary information shall be allowed to disclose such information in accordance with applicable law and further that such confidential or proprietary information shall not
include information which:
(i) is proved to have been in the public domain or known to the receiving party before it was so provided to or acquired by the receiving party; or
(ii) has been independently acquired by the receiving party otherwise than from the disclosing party without (so far as it is aware) the breach by any person of any obligation of confidentiality.

7. Obligations

7.1  RLUK shall use reasonable endeavours to implement the Hosted Application on a server system that provides for application performance consistent with what is reasonable for similar hosted applications and their typical use. RLUK does not however warrant that the specific response time or performance benchmarks of any kind will be guaranteed for the Hosted Application under this Agreement.

7.2  RLUK will use reasonable endeavours to ensure the Hosted Application is available to the Customer for use in accordance with this Agreement. RLUK agrees that when it becomes necessary to take the Hosted Application out of service for repair or maintenance, RLUK will use reasonable endeavours to notify the Customer of this service outage at least one (1) calendar week in advance, save that in emergency situations, when the Hosted Application needs to be taken out of service for immediate repair, such advance notice may not be possible. RLUK will however attempt to notify the Customer at the earliest possible time in the event of an emergency outage.

7.3  RLUK agrees that it will work with leased line and internet service providers to provide the Customer with access in accordance with this Agreement to the Hosted Application. Similarly, RLUK agrees that it will work with the Customer to determine the best possible network configuration for the Hosted Application. RLUK does not however warrant specific uptime or network response times on any network, however RLUK agrees that it will use reasonable endeavours to actively monitor network performance, and make or recommend alterations to improve such performance as it becomes necessary.

7.4  RLUK will save backups of the Hosted Application, and these backups will be stored in a manner consistent with all other RLUK corporate backups.

7.5 The Customer:
(i) shall not, other than as allowed under law, directly or indirectly, reverse engineer, decompile, disassemble, alter, probe or attempt to derive the source code or other trade secrets included in the Services or the Hosted Application;
(ii) shall not access, copy or distribute the Hosted Application, related software or parts thereof, other than as allowed under this Agreement;
(iii) shall not use the Services to transmit, distribute, disseminate, publish or store any material or information that:
(a) is illegal, spam in nature, defamatory, obscene, indecent or harassing; or threatening or encouraging bodily harm, destruction of property, or infringing the lawful rights of any party;
(b) violates the privacy of any party as protected by applicable law (whether local, national or international) or regulation; or
(c) contains software viruses, worms, trojan horses or any computer code, files or programs designed to disrupt, destroy, invade, gain unauthorised access to, corrupt or modify the data, Hosted Applications, or any other equipment;
(iv) shall at all times, comply with all applicable laws and regulations with respect to the Hosted Application, the Services and use thereof;
(v) shall be responsible for entering into and maintaining all licences required for the use of the Hosted Application; and shall only use the Hosted Application in accordance with the applicable licence agreement;
(vi) acknowledges that this Agreement does not grant the Customer any additional licences or rights to those provided in the licence agreement for the Hosted Application;
(vii) will not provide information, encourage, or allow any third party to access the Hosted Application or the servers or network equipment used in the hosting service for any reason without the express written consent of RLUK;
(viii) shall comply with its obligations as a ‘data controller’ (as such term is defined in the DPA) in respect of any personal data that are hosted by RLUK pursuant to this Agreement, including, without limitation, by complying with the First Data Protection Principle established by the DPA; and
(ix) shall comply with the provisions of the DPA and all other applicable legislation relating to the collection and use of personal data with respect to any personal data transferred by the Customer to RLUK, and shall acquire all necessary consents from relevant data subjects to the transfer of their personal data from the Customer to RLUK and from RLUK to third parties for the purposes of the provision of the Services and receiving information about RLUK’s and such third parties’ products and services. The Customer shall indemnify RLUK for all losses suffered by RLUK arising from the Customer’s breach of this clause 7.5(ix).

8. Disclaimer of Warranties

8.1  OTHER THAN AS PROHIBITED UNDER LAW, ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN "AS IS" BASIS, AND THE CUSTOMER’S USE OF THE SERVICES IS SOLELY AT ITS OWN RISK. RLUK'S SOLE LIABILITY AND THE CUSTOMER'S EXCLUSIVE REMEDY FOR NON-COMPLIANCE WITH THIS AGREEMENT IS TERMINATION AND REIMBURSEMENT AS SET FORTH IN PARAGRAPH 4 OF THIS AGREEMENT. RLUK DOES NOT MAKE, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. RLUK DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

8.2  RLUK does not assume any responsibility for the operation or management of the internet or the acts or omissions of any internet service provider.

9. Limitation of Liability

9.1  Neither party excludes or limits its liability for:
(i) fraud by it, its employees or agents;(ii) fraudulent misrepresentation; or
(iii) death or personal injury caused by its negligence or that of its employees or
agents.

9.2  Subject to paragraph 9.1 above and notwithstanding anything else to the contrary, RLUK's aggregate liability to the Customer (including in respect of legal fees and disbursements), if any, shall not exceed the amount of the Fees paid to RLUK by the Customer under this Agreement during the two (2) months immediately preceding the date on which such claim accrued.

9.3  Subject to paragraph 9.1 above, in no event shall RLUK be liable to the Customer or any third party for any indirect, consequential or punitive damages or losses, or other losses in relation to and arising from lost profits, lost or stolen data, damages, delays interruptions, or viruses arising out of or related to this Agreement regardless of the basis of the claim.

10. Force Majeure

10.1  Neither party shall be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any fire,
earthquake, flood, hurricane, tornado, snowstorm, epidemic, accident, explosion, casualty, strike, lockout, labour controversy, riot, civil disturbance, act of public enemy, embargo, war, act of god, act of terrorism, or any municipal, county or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party's reasonable control.

11. Assignment and subcontracting

11.1  RLUK may, at its absolute discretion, sub-contract or assign any of its rights and obligations under this Agreement to any third parties (including, without any limitation, its affiliate, Renaissance Learning Inc, in the United States), provided always that any party to which RLUK sub-contracts or assigns its obligations shall be obliged to perform such obligations on terms equivalent to those imposed on RLUK under this Agreement.

11.2  The Customer may not assign its rights or obligations under this Agreement without the written consent of RLUK, except that if the Customer merges or
consolidates with or into or transfers substantially all of its assets to another entity, this Agreement may be assigned to such successor and it shall be binding upon and inure to the successor's benefit.

12. Miscellaneous

12.1  This Agreement shall be governed by, and construed in accordance with, English law and each of the parties irrevocably submits to the exclusive jurisdiction of the English courts and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that the proceedings have been brought in an inappropriate forum.

12.2  This Agreement and the attached appendices is the complete and whole agreement between the parties with regard to the subject matter and supersedes all previous agreements between the parties with respect to the subject matter and specific related Services hereof and shall be binding upon the parties, their respective successors, assigns, subsidiaries, affiliates, legal and administrators.

12.3  Any notice or other document to be served under this Agreement may be delivered or sent by prepaid first class recorded delivery post or facsimile to the party to be served at the addresses specified above.

12.4  The invalidity, illegality or unenforceability of any of the provisions of this Agreement shall not affect the validity, legality and enforceability of the remaining provisions of this Agreement.

12.5  Other than a person to whom RLUK has sub-contracted its rights under this Agreement in accordance with paragraph 11 above, no person who is not a party to this Agreement may enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

12.6  Subject to any changes made pursuant to paragraphs 2.5 or 2.6 above, no modification, amendment or waiver of any provision of this Agreement shall be effective unless approved in writing by both parties.

12.7  The failure of either party at any time to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of either party thereafter to enforce each and every provision thereof in accordance with its terms.

12.8  Signatures on a copy of the quotation document overleaf or on copies of any other documents provided pursuant to this Agreement transmitted by facsimile machine shall be binding upon the parties and of the same legal effect as an original signature.

12.9  All Professional Development sessions provided by our coaching department must be used within 12 months of date of invoice. Failure on the part of the Customer to schedule the services purchased within the timescales mentioned will result in the session expiring and no refund being due. RLUK also reserve the right to charge a cancellation fee should any Professional Development session be cancelled/rescheduled with less than 3 working days notice of the due date.