Thinking Kit – Subscription Agreement
These terms are a legal agreement between the school, academy or other educational establishment or provider subscribing to use the Service ("you" and "your") and Modular Software Limited trading as Reflective Thinking incorporated and registered in England with company number 02963444 at No. 1 Olympic Way, Wembley, Middlesex, HA9 0NP ("we" and "our").
If you are accepting these terms on behalf of a school, academy or other educational establishment or provider you represent that you are authorised to do so.
The following definitions have the accompanying meanings in this Agreement:
"App" means the Thinking Kit app provided by us and available for download on mobile devices;
"Materials" means the library of materials and learning tasks which we make available via the Website and App;
"Service" means the Software and Materials made available via the Website and App, as further described on our Website;
"Software" means the current version of the Thinking Kit learning platform together with any updates or new releases to that platform which are made available to you pursuant to this Agreement;
"Subscription Fee" means the annual fee or fees payable for a User Subscription, as detailed on our Website from time to time, or agreed with us in writing;
"Trial Period" means the period 30 calendar days;
"User Subscription" means a user subscription purchased by you which entitles a single user, authorised by you, to access and use the Service in accordance with this Agreement; and
"Website" means our website at www.thinking-kit.com.
2. Free Trial
2.1. If you have selected the 30-day free trial, we grant you a limited, non-exclusive, non-transferable licence to use the Service free of charge for the Trial Period for the sole purpose of evaluating whether you wish to purchase a full User Subscription to the Service.
2.2. This licence will terminate automatically at the end of the Trial Period, unless you have purchased a full User Subscription pursuant to clause 3. If you have not purchased a User Subscription, you must make no further use of the Service after the end of the Trial Period.
2.3. You may only benefit from one free trial and if we discover that you have requested more than one free trial, or continued using the Service after the end of the Trial Period without purchasing the required number of User Subscriptions, you will become liable to pay the applicable Subscription Fees in full.
2.4. You acknowledge that the trial version of the Software may have more limited functionality and features than the version available to you if you purchase a full User Subscription.
3. User Subscriptions
3.1. If you wish to purchase one or more User Subscriptions to the Service you should register your details on the Website or contact us at firstname.lastname@example.org.
3.2. Subject to payment by you of any applicable Subscription Fees by the due date for payment, we grant to you a limited, non-exclusive, non-transferable licence to use the Service to support the tuition of students enrolled by your school, academy or educational establishment, subject to and in accordance with the terms of this Agreement.
3.3. Each User Subscription you purchase permits a single named individual such as a teacher or tutor (a "user") to use the Service to support the tuition of students. The maximum number of users that you authorise to access and use the Service shall not exceed the number of User Subscriptions you have purchased from time to time.
3.4. In relation to your users, you undertake:
3.4.1. to ensure that your users understand, agree to and abide by the terms and conditions of this Agreement with respect to their use of the Service;
3.4.2. not allow or suffer any subscription to be used by more than one individual user unless it has been reassigned in its entirety to another user, in which case the prior user shall no longer have any right to access or use the Service; and
3.4.3. that each user shall keep a secure password for his/ her use of the Service and that such password shall be changed no less frequently than once every six months and that each user shall keep his/ her password confidential and secure.
4.1. You may not:
4.1.1. use, copy, modify or transfer the Services, in whole or in part, except as expressly provided for in this Agreement or authorised by us in writing;
4.1.2. use any part of the Services on behalf of third parties or to provide a bureau service;
4.1.3. translate, reverse engineer, decompile, disassemble, modify or create derivative works based on the Software or Materials, except as expressly permitted by us in writing or as permitted by applicable law; or
4.1.4. vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the Service.
5.1. The Subscription Fee shall be as set out on the Website from time to time or as agreed by us in writing and shall be paid on such dates and by such method(s) as we may reasonably require from time to time.
5.2. The Subscription Fees listed shall be inclusive of sales tax at your country's/state's prevailing rate, if applicable. This runs through Taxamo, partners of Braintree.
5.3. The amount debited from or charged to your card may differ slightly from the amount displayed on your invoice. This could be due to the exchange rate applied by the issuer of your card or due to any additional charges or fees set by your bank, like currency conversion fees.
6. Ownership of the Service
6.1. You acknowledge and agree that the Software and Materials and all copyright and other intellectual property rights comprised in Services is and shall remain the property of Modular Software Limited (or its licensors) and that you shall not by virtue of this Agreement obtain or claim any right, title or interest in or to the Service or any copyright or intellectual property rights comprised therein except the limited rights of use granted under clauses 2.1 and 3.2.
6.2. All rights not specifically granted by this Agreement are reserved to us. You shall notify us immediately if you become aware of any unauthorised use of the Services or any part of it by any person.
7. User Content
7.1. The Service allows your own users, as well as other users of the Service, to create their own tasks and other content ("User Content") and to publish, disseminate and share that User Content via the Service.
7.2. You are responsible for all User Content which is created by your own users and must ensure that any such User Content complies with the requirements of clause 4.2. You agree to indemnify us as well as our suppliers and other customers against any claim from any third party alleging that any such User Content contravenes the requirements of clause 4.2.
7.3. With respect to any User Content created by your own users, we shall have a non-exclusive, royalty free right and licence to use such User Content for the purposes of providing the Service. In addition, in the event that you or your users share any User Content with other users of the Service or third parties, you agree that Modular Software Limited as well as such other users and third parties shall have a non-exclusive, perpetual, royalty-free right and licence to use, modify and disseminate such User Content for any purpose connected with the Service and/ or for wider educational purposes.
7.4. With respect to any User Content which you and/ or your own users may access via the Service which has been created by other users, you acknowledge and agree that such User Content was not created by Modular Software Limited. Accordingly, whilst we ask all users of the Service to act responsibly, we do not given any warranties or guarantees concerning the accuracy, completeness or lawfulness of any User Content or otherwise and we cannot guarantee that User Content will be non-infringing. If you or your users choose to access or use such User Content you do so at your own risk.
8. No transfer
8.1. The Software and Materials are licensed only to you. You may not rent, lease, sub-license, sell, assign, pledge or otherwise transfer the Software or Materials or access to the Services, on a temporary or permanent basis, without our prior written consent.
8.2. If you transfer possession of any copy of the Software or Materials to another party without our prior consent, your User Subscription(s) will be automatically terminated.
9. Support and Updates
9.1. We shall not be obliged to respond to technical queries concerning the use of the Services during the Trial Period, but may do so (in our absolute discretion).
9.2. If you have purchased a User Subscription and paid all applicable Subscription Fees, we will use reasonable endeavours to respond to any technical queries or requests for support which are submitted to us via email to email@example.com provided that the volume of request we receive are no excessive.
10. Our obligations
10.1. We undertake that the Services will be performed substantially in accordance with the description provided on the Website and using reasonable skill and care.
10.2. If the Service does not conform with the foregoing undertaking at clause 10.1, we will, at our expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance, or if the foregoing is not possible refund to you an appropriate proportion of any applicable Subscription Fees you have paid to us. Such correction or substitution or refund constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 10.1.
10.3. Notwithstanding the forgoing, the undertaking at clause 10.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to our instructions, or modification or alteration of the Service by any party other than Reflective Thinking or our duly authorised contractors or agents. Notwithstanding the foregoing, we:
10.3.1. do not warrant that your use of the Services will be uninterrupted or error-free, or that the Software and Materials will meet your requirements; and
10.3.2. are 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 you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11. Limitation of liability
11.1. Save as provided in clause 11.3, our aggregate liability in respect of all claims arising under or in connection with this Agreement or the legal relationship established by this Agreement (whether in contract, tort or otherwise) shall be limited so that it shall in no circumstance exceed an amount equal to the Subscription Fees paid by you under this Agreement.
11.2. Save as provided in clause 11.3, in no event will we be liable for any loss of profits (actual or anticipated), loss of revenue, loss of anticipated savings, loss of goodwill, loss or corruption of or damage to data or for any indirect, incidental, consequential or special loss or damage, even if we were advised of the possibility of such loss or damage.
11.3. Nothing in this Agreement shall exclude or limit our liability for death or personal injury resulting from negligence or in relation to any claim based on fraud, criminal act or any other liability that cannot be excluded or limited.
12. Term and Termination
12.1. This Agreement shall, with respect to each User Subscription you purchase, commence on the date of purchase and (unless otherwise terminated as provided in this clause 12) continue for a period of 12 months (“Initial Term”). Following the end of the Initial Term, this Agreement and your User Subscription shall be automatically renewed for successive periods of 12 months (each a “Renewal Term”), unless either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Term, in which case this Agreement and your User Subscription shall terminate upon the expiry of the applicable Initial Term or Renewal Term.
12.1. Without affecting any other right or remedy available to us, we may suspend your access to the Services and/ or terminate this Agreement in its entirety if you fail to pay any Subscription Fees due under, or on renewal of, this Agreement by the due date for payment or commit any other breach of the terms and conditions of this Agreement.
12.2. Without affecting any other right or remedy available to us, we may suspend your access to the Service and/ or terminate this Agreement with immediate effect by giving written notice if it becomes apparent that you have become insolvent or has had a receiver, administrator or administrative receiver appointed or applied for or has called a meeting of creditors or resolved to go into liquidation (except for bona fide amalgamation or reconstruction while solvent) or an application is made to appoint a provisional liquidator or for an administration order or notice of intention to appoint an administrator is given or a proposal is made for a voluntary arrangement or any other composition, scheme or arrangement with or assignment for the benefit of any of your creditors, or any event analogous to any of the foregoing occurs in any jurisdiction other than England or if you cease or threaten to cease to carrying on providing education services.
12.3. On termination of this Agreement for any reason all licences granted under this Agreement shall immediately terminate and you shall cease using the Service and you shall (on request) promptly return to us and/ or permanently remove from your systems any and all copies of the Software and/ or Materials (or any part thereof) in your possession or under you control.
13. Cancellation and Refunds Policy
13.1. The Service has been made available for use by schools, academies and educational establishments and providers, who are acting as such and not as consumers. In addition, you have been given the opportunity to use the Service as part of a free trial to establish whether you wish to purchase a full User Subscription to the Service.
13.2. You may cancel your subscription to the Service at any time by notifying us in writing at firstname.lastname@example.org. However, except as provided in clause 10.2 above and 13.3, we shall be under no obligation to refund to you any Subscription Fees you have already paid to us.
13.3. If you are a consumer, nothing in this Agreement shall affect you statutory rights as such.
14.1. This Agreement constitutes the complete and exclusive statement of the Agreement between Reflective Thinking and you with respect to the subject matter of this Agreement and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to that subject matter.
14.2. The terms of this Agreement may only be varied in writing and where signed by an authorised representative of each party.
14.3. We shall have no liability under this Agreement if we are prevented from or delayed in performing any of our obligations by acts, events, omissions or accidents beyond our reasonable control.
14.4. Any clause in this Agreement that is found to be invalid or unenforceable shall be deemed deleted and the remainder of this Agreement shall not be affected by that deletion.
14.5. Failure or neglect by either party to exercise any of its rights or remedies under this Agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity of the whole or part of this Agreement nor prejudice that party’s right to take subsequent action.
14.6. This Agreement is personal to you and you may not assign, transfer, sub-contract or otherwise part with this Agreement or any right or obligation under it without the Reflective Thinking’s prior written consent.
14.7. 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. Each party irrevocably agrees that the courts of England 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).
14.8. We may update the terms and conditions of this Agreement from time to time and each User Subscription you purchase shall be subject to the version of this Agreement which is in force when you purchase that User Subscription or when it is renewed in accordance with clause 12.1. These Terms and Conditions were last updated on 13 October 2015.