By signing up to Educake, you agree to the terms and conditions below.
If you have any questions or complaints about Educake, email us at [email protected], or write to us at 115 Magdalen Road, Oxford, OX4 1RQ.
Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation to Educake platform and services. You will be asked to agree to these terms and conditions before becoming a user or customer.
You should keep a copy of these terms and conditions for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our website in future.
These terms and conditions are available in the English language only.
Statement of Services
1. Definitions and interpretation
1.1 In the Agreement:
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedules) and the Statement of Services, and any amendments to the Agreement from time to time;
"Business Day" means any week day, other than a bank or public holiday in England or Wales;
"Business Hours" means between 09:00 and 17:30 London time on a Business Day;
"Change" means any change to the terms of the Agreement;
"Charges" means the amounts payable by the Customer to the Provider under or in relation to the Agreement (as set out in Schedule );
"Confidential Information" means the Customer Confidential Information and the Provider Confidential Information;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and Control will be construed accordingly);
"Customer" means the customer specified in the Statement of Services;
"Customer Confidential Information" means
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider during the Term that is marked as confidential, described as confidential or should have been understood by the Provider at the time of disclosure to be confidential;
"Customer Indemnity Event" has the meaning given to it in Clause [13.1];
"Customer Materials" all works and materials:
(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and "Customer Representatives" means the staff of the Customer (school);
"Customisations" means customisations to the Platform that the Provider and Customer agree the Provider will produce on behalf of the Customer;
"Defect" means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors; or
(b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in Clause 3.12;
"Documentation" means the documentation produced by the Provider and made available on the Platform to the Customer specifying how the Platform should be used;
"Effective Date" means the date that the Agreement comes into force as specified in Clause ;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable con
trol of the party affected (including failures of or problems with the internet or a part of the internet, [hacker attacks, virus or other malicious software attacks or infections,] power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the intellectual property rights referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Permitted Purpose" means education;
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Product" means the Educake tests that run on the Platform, e.g. AQA GCSE Science, or Edexcel GCSE Additional Science;
"Platform" means the software platform known as Educake that is owned and operated by the Provider, and that will be made available to the Client as a service via the internet under the Agreement;
"Provider" means Educake Ltd, a company incorporated in England and Wales (registration number 7839821) having its registered office at The Old Chapel, Union Way, Witney, Oxon, OX28 6HD;
"Provider Confidential Information" means any information disclosed (whether disclosed in writing, orally or otherwise) by the Provider to the Customer that is marked as confidential, described as confidential or should have been understood by the Customer at the time of disclosure to be confidential;
"Provider Indemnity Event" has the meaning given to it in Clause [13.3];
"Provider Representatives" means employees of Educake Ltd, 115 Magdalen Road, Oxford, OX4 1RQ;
Representatives means the Customer Representatives and the Provider Representatives;
"Schedule" means a schedule attached to the Agreement;
"Services" means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;
"Statement of Services" means the online document made available by the Provider to the Customer during the order process / agreed between the parties that specifies the identity of the Customer, and other matters relating to the Agreement;
"Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule ;
"Term" means the term of the Agreement; and
"Upgrades" means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.
1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.
2. Agreement and Term
2.2 In order to enter into the Agreement, the Customer must take the following steps: (i) the Customer Representative must create an account for the Customer with the Provider's website and log in; (ii) the Customer Representative must select the Product from the Educake website and add to the basket; (iii) the Customer Representative must select Go to Checkout on the My Basket webpage; (iv) at the Checkout page, the Customer Representative must confirm they have the authority to place the order on behalf of their school (the Customer), and must consent to the terms of this Agreement; (v) the Customer Representative will then be able to submit payment by credit or debit card, or be given an invoice for payment by bank transfer within 30 days; (vi) the Provider will send to the Customer Representative an initial acknowledgement and allow access to the Product and Platform, starting the term of licence;
2.3 Before the Customer has placed its order, the Customer will have the opportunity of identifying whether any input errors have been made by reviewing the order at the My Basket page and the Checkout page. The Customer may correct any input errors before placing your order by removing the Product at the My Basket page and reselecting the Product at the Products page.
2.4 Once in force, the Agreement will continue in force for the length of the licence (e.g. 1 year, 3 years) upon which it will terminate automatically in accordance with Clause .
3. The Platform
3.1 The Platform will automatically generate an account for the Customer promptly following the Effective Date, enabling the Customer to access the Platform.
3.2 Subject to the limitations set out in Clause [3.3] and the prohibitions set out in Clause [3.4], the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web in accordance with the Documentation during the Term.
3.3 The licence granted by the Provider to the Customer under Clause [3.2] is subject to the following limitations:
(c) the Platform may only be used by current students and staff of the Customer and:
(i) where the Customer is a company, the Customer's officers;
(ii) where the Customer is a partnership, the Customer's partners; and
(iii) where the Customer is a limited liability partnership, the Customer's members;
(d) the Customer must comply at all times with the terms of the acceptable use policy set out in Schedule , and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy; and
3.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause  is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform;
(c) the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation;
3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.
3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
3.7 The Customer shall use reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.9 The Customer must not use the Platform:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.12 The Platform will operate on the following internet browsers:
Chrome – all versions
Internet Explorer – 8 and above
Safari – 4 and above
Firefox – 4 and above
Blackberry – browser 4.2 and above
Android – all versions
Windows Phone – 7.5 and above
5. Support Services and Upgrades
5.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule .
5.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.
6.1 From time to time the Provider and the Customer may agree that the Provider will customise the Platform in accordance with a specification agreed in writing between the parties.
6.2 From the date when a Customisation is first made available to the Customer, the Customisation shall form part of the Platform under the Agreement, and accordingly from that date the Customer's rights to use the Customisation shall be governed by Clause .
6.3 The Customer acknowledges that the Provider may make any Customisation available to its other Customers following the making available of that Customisation to the Customer.
6.4 All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider.
7.1 The Customer will ensure that all instructions in relation to the Agreement will be given by a Customer Representative to a Provider Representative, and the Provider:
(a) may treat all such instructions as the fully authorised instructions of the Customer; and
(b) will not comply with any other instructions in relation to the Agreement without first obtaining the consent of a Customer Representative.
8. Customer Materials
8.1 The Customer grants to the Provider a non-exclusive licence to store, copy and otherwise use the Customer Materials for any purpose in particular operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.
8.3 The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will not:
(a) breach any laws, statutes, regulations or legally-binding codes;
(b) infringe any person's Intellectual Property Rights or other legal rights; or
(c) give rise to any cause of action against the Provider or the Customer or any third party,
in each case in any jurisdiction and under any applicable law.
8.4 Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause , the Provider may:
(a) delete or amend the relevant Customer Materials; and/or
(b) suspend any or all of the Services and/or the Customer's access to the Platform while it investigates the matter.
8.5 Any breach by the Customer of this Clause  will be deemed to be a material breach of the Agreement for the purposes of Clause .
9. Trial period
The first 30 days of the Term shall be a trial period, during which all of the provisions of this Agreement shall apply, save as follows:
(a) the Customer shall have no obligation to pay in respect of the trial period;
(b) either party may terminate the Agreement immediately by giving written notice to the other party at any time before the end of the trial period (in which case no liability to pay any Charges in respect of Platform access or Support Services will arise); and
10.1 The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of Schedule .
10.2 The Customer will pay the Charges to the Provider within 30 days of the date of issue of an invoice issued in accordance with Clause [10.1].
10.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts.
10.4 Charges must be paid by bank transfer or by Paypal (using such payment details as are notified by the Provider to the Customer from time to time).
10.5 If the Customer does not pay any amount properly due to the Provider under or in connection with the Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 4% per year above the base rate of HSBC Bank Plc from time to time (which interest will accrue daily and be compounded quarterly); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10.7 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue.
12.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.
12.2 The Provider warrants and represents to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;
(b) that it will perform its obligations under the Agreement with reasonable care and skill;
(c) that the Platform will perform substantially in accordance with the Documentation (subject to any Upgrades and Customisations);
(d) that the Platform will be hosted in accordance with the requirements set out in Clause 3.12, and will be available to the Customer in accordance with the uptime commitments given in Schedule ;
(e) the Platform (excluding for the avoidance of doubt the Customer Materials) will not:
(i) breach any laws, statutes, regulations or legally-binding codes;
(ii) infringe any person's Intellectual Property Rights or other legal rights; or
(iii) give rise to any cause of action against the Provider or the Customer or any third party,
in each case in England and Wales and under English law;
12.3 The Customer acknowledges that:
(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in Clause 3.12; and
(c) the Provider will not and does not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
12.4 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.
13.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause [8.3].
13.3 Subject to the Customer's compliance with Clause [13.4], the Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 12.2(e).
13.4 The Customer will:
(a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
(b) provide to the Provider all reasonable assistance in relation to the Provider Indemnity Event;
(c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements relating to the Provider Indemnity Event; and
(d) not admit liability in connection with the Provider Indemnity Event or settle the Provider Indemnity Event without the prior written consent of the Provider.
14. Limitations and exclusions of liability
14.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
14.2 The limitations and exclusions of liability set out in this Clause  [and elsewhere in the Agreement]:
(a) are subject to Clause [14.1];
(b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
14.3 The Provider will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
14.4 The Provider will not be liable for any loss of business, contracts or commercial opportunities.
14.5 The Provider will not be liable for any loss of or damage to goodwill or reputation.
14.6 The Provider will not be liable in respect of any loss or corruption of any data, database or software.
14.7 The Provider will not be liable in respect of any special, indirect or consequential loss or damage.
14.8 Neither party will be liable for any losses arising out of a Force Majeure Event.
14.9 Neither party's liability in relation to any event or series of related events will exceed the greater of:
(a) £10,000; and
(b) the total amount paid and payable by the Customer to the Provider under the Agreement during the 36 month period immediately preceding the event or events giving rise to the claim.
14.10 Neither party's aggregate liability under the Agreement and any collateral contracts will exceed the greater of:
(a) £10,000; and
(b) the total amount paid and payable by the Customer to the Provider under the Agreement.
15. Data protection
15.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
15.2 The Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or
corruption of Personal Data processed by the Provider on behalf of the Customer.
16. Confidentiality and publicity
16.1 The Provider will:
(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause ;
(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
16.2 The Customer will:
(a) keep confidential and not disclose the Provider Confidential Information to any person save as expressly permitted by this Clause ;
(b) protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
16.3 Confidential Information of a party may be disclosed by the other party to that other party's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.
16.4 The obligations set out in this Clause  shall not apply to:
(a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer;
(c) Customer Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant Confidential Information; or
(d) Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.
17.1 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).
17.2 Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
17.3 Either party may terminate the Agreement by giving at least 90 days' written notice of termination to the other party.
17.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate the Agreement by giving at least 90 days' written notice of termination to the Customer.
17.6 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.
18. Effects of termination
18.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 4.4, 10.5, 13, 14, 16.1 to 16.4, 18 and 21].
18.2 Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
19.1 Any notice given under the Agreement must be in writing (whether or not described as "written notice" in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, to the relevant address or email address given below (or as notified by one party to the other in accordance with this Clause).
Educake Ltd, 115 Magdalen Road, Oxford, OX4 1RQ, [email protected]
The addressee, address and email set out in the Statement of Services.
19.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by recorded signed-for post, 48 hours after posting; and
(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
20. Force Majeure Event
20.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.
20.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.
20.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
21.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
21.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
21.3 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
21.4 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
21.5 Each party hereby agrees that the other party may freely assign all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.
21.7 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party's power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
21.8 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
21.9 Subject to Clause [14.1]:
(a) the Agreement and the acceptable use policy and end user licence agreement referred to in herein constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
21.10 The Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
Service Level Agreement
1.1 In this Schedule:
"New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and
1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
2.1 The Provider will make available, during Business Hours, an email helpdesk facility for the purposes of:
(a) assisting the Customer with the configuration of the Platform;
(b) assisting the Customer with the proper use of the Platform; and/or
(c) determining the causes of errors and fixing errors in the Platform.
2.2 Subject to Paragraph [2.3], the Customer must make all requests for Support Services through the helpdesk ([email protected]), and all such requests must include at least the following information: school name, teacher name, operating system, internet browser version, detailed description of fault.
3. Response and resolution times
3.1 The Provider will:
(a) use all reasonable endeavours to respond to requests for Support Services made through the helpdesk promptly.
3.3 All Support Services will be provided remotely unless expressly agreed otherwise by the Provider.
4. Limits on Support Services
4.1 Where the total person-hours spent by the Provider performing the Support Services under Paragraphs  and ) during any month exceed four hours, then:
(a) the Provider will cease to have an obligation to provide those Support Services to the Customer during that period; providing that
(b) the Provider may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at the Provider's standard hourly rate from time to time.
4.2 The Provider shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by:
(a) the improper use of the Platform; or
(b) the use of the Platform otherwise than in accordance with the Documentation.
5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph [5.2], result in changes the appearance and/or functionality of the Platform.
5.4 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:
(b) that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade;
(c) access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and
(d) any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform.
6. Uptime commitment
6.1 The Provider shall use all reasonable endeavours to ensure that the Platform is available 99.9% of the time during each calendar month, subject to Paragraph .
7. Back-up and restoration
7.1 Subject to Paragraph [7.2],] the Provider will:
(a) make back-ups of the Customer Materials stored on the Platform on a daily basis and will retain such back-ups for at least 1 week; and
(b) at least once every week, the Provider will arrange for the off-site storage of a current back-up of the Customer Materials stored on the Platform (which will be over-written on the following off-site back-up date).
[7.3 In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to the Provider under Paragraph , the Provider shall if so directed by the Customer [use [all] reasonable endeavours] promptly to restore the Customer Materials from the most recent available back-up copy.]
8. Scheduled maintenance
8.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such maintenance to be carried out outside Business Hours and such suspension to be for not more than 20 hours in each calendar month.
8.3 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph  shall not be counted as downtime for the purposes of Paragraph .
1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
1.2 The Charges under the Agreement will consist of the following elements:
(a) access Charges, in respect of access to and use of the Platform;
(b) support Charges, in respect of the Support Services; and
(c) other Charges.
2. Access Charges
2.1 The Charges in respect of access to and use of the Platform shall be made up of a fixed Charge as set out in the Statement of Services.
2.2 The fixed Charge will be invoiced by the Provider at the time of purchase.
4. Other Charges
4.1 In addition to the Charges detailed in Paragraph  above, the Provider will invoice in respect of, and the Customer shall pay to the Provider:
(a) Charges payable under Paragraphs  and  of Schedule ; and
(b) all other Charges that are agreed between the parties in writing from time to time.
4.2 Where other Charges are to be calculated by reference to an hourly or daily rate, the following rates shall apply as at the date of the Agreement: £30 per hour.
Acceptable Use Policy
(1) This Policy
This Acceptable Use Policy (the "Policy") sets out the rules governing the use of our web services available via www.educake.co.uk (the "Service") and any content that you may submit to the Service ("Content").
By using the Service, you agree to the rules set out in this.
(2) General restrictions
You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.
You must not use the Service:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
(4) Unlawful and illegal material
You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).
Content (and its publication on the Service) must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;
(d) infringe any rights of confidence, rights of privacy, or rights under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime;
(g) be in contempt of any court, or in breach of any court order;
(h) be in breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) be in breach of official secrets legislation; or
(k) be in breach of any contractual obligation owed to any person.
You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
(5) Data mining
You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.
(6) Graphic material
Content must not depict violence in an explicit, graphic or gratuitous manner.
Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.
(8) Factual accuracy
Content must not be untrue, false, inaccurate or misleading.
Statements of fact contained in the Content must be true; and statements of opinion contained on the Content must be truly held and where possible based upon facts that are true.
(9) Negligent advice
Content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause:
(a) illness, injury or death; or
(b) any other loss or damage.
(10) Marketing and spam
You must not [without our prior written permission] use the Service for any purposes related to marketing, advertising, promotion, or the supply and/or sale of goods and/or services.
Content must not constitute spam.
You must not use the Service to transmit or send unsolicited commercial communications.
You must not use the Service to market, distribute or post chain letters, ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar schemes, programs or materials.
(12) Professional advice
You must not use the Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advice or advisory services.
Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.
Content must not be [grossly] offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.
Content should not cause annoyance, inconvenience or needless anxiety.
Do not flame or conduct flame wars on the Service ("flaming" is the sending hostile messages intended to insult, in particular where the message is directed at a particular person or group of people).
Do not troll on the Service ("trolling" is the practice of deliberately upsetting or offending other users).
You must not flood the Service with Content focusing upon one particular subject or subject area, whether alone or in coordination with other users.
Content must not duplicate existing Content on the Service.
You must submit Content to the appropriate part of the Service.
Do not unnecessarily submit textual content in CAPITAL LETTERS.
You should use appropriate and informative titles for all Content.
You must at all times be courteous and polite to other Service users.]
You must not link to any website or web page containing material that would, were it posted on the Service, breach the preceding terms of this Policy above.
(15) Breaches of this Policy
We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.
Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:
(a) delete or edit any of your Content;
(b) send you one or more formal warnings;
(c) temporarily suspend your access to a part or all of the Service; and/or
(d) permanently prohibit you from using a part or all of the Service.
(16) Banned users
Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).
Notwithstanding the provisions of this Policy, we do not actively monitor Content.
(18) Report abuse
If you become aware of any material on the Service that contravenes this Policy, please notify us by email.