BURSTS APP SUBSCRIPTION TERMS
- Create Development Limited (company number 06476863) of C/O Las Accountants Llp, No 1 Royal Exchange, London, United Kingdom, EC3V 3DG (‘Create Development’); and
- You (the ‘Client’).
Each a ‘Party’ and together the ‘Parties’.
By accepting these Terms the Client agrees to the terms set out in this Agreement. school
Create Development will provide the BURSTS Platform to the Client in return for the Fees.
1.1 The following words used in this Agreement have the meanings below:
1.1.1 ‘Activity Data’ means the data collected from the BURSTS App.
1.1.2 ‘Agreement Date’ means the date as stated in the Client’s Order Form.
1.1.3 ‘BURSTS App’ means Create Development’s BURSTS mobile application for parents or guardians which can be downloaded from Apple’s App Store or the Google Play store.
1.1.4 ‘BURSTS Platform’ means Create Development’s BURSTS platform for schools purchased by the Client.
1.1.5 ‘Data’ means the data including Personal Data inputted by the School (or on behalf of the School) and the Activity Data, for the purpose of using the BURSTS Platform or facilitating the School's use of the BURSTS Platform.
1.1.6 ‘Data Protection Law’ means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
1.1.7 ‘Fees’ means the fees of this Agreement as set out in the Client’s Order Form, subject to Clause 3.
1.1.8 ‘Initial Term’ means the initial term as set out in the Client’s Order Form.
1.1.9 ‘Notice Period’ means at least 30 days before the end of the Initial Term or current Renewal Term.
1.1.10 ‘Order Form’ means the form completed and submitted by the Client through Create Development’s website: [https://burstsapp.com/signup/].
1.1.11 ‘Personal Data’ means personal data as defined under Data Protection Law.
1.1.12 ‘Renewal Term’ means the renewal term this Agreement will automatically renew for unless either Party gives written notice to terminate the contract during the Notice Period, as set out in the Client’s Order Form.
1.1.13 ‘School’ means the schools listed in the Client’s account.
1.2 The headings in this Agreement are for ease of reference only and shall not affect its interpretation.
1.3 References to ‘including’ in this Agreement in the context of a list or description of items shall be construed as meaning ‘including without limiting the generality of the foregoing’, such that the items following are merely examples of items which are included and/or items which are identified as being included for the avoidance of any doubt as to their inclusion, and such items are not descriptive of the class of items which may be included.
- OBLIGATIONS IN OUTLINE
2.1 Create Development will subject to the remaining terms of this Agreement:
2.1.1 provide the BURSTS Platform to the School;
2.1.2 charge the Fees; and
2.1.3 collect the Data.
2.2 The Client will subject to the remaining terms of this Agreement:
2.2.1 pay the Fees to Create Development subject to Clause 3;
2.2.2 ensure the School has a copy of and agrees to this Agreement;
2.2.3 ensure the School has an active connection to WONDE; and
2.2.4 will be responsible for any breaches the School makes in relation to the terms of this Agreement.
- PRICE AND PAYMENT
3.1 The Client will pay the agreed Fees to Create Development in accordance with this Clause 3.
3.2 The Client will pay the Fees as set out in the Client’s Order Form on the Agreement Date.
3.3 The Fees for the Initial Term are payable:
3.3.1 immediately when completing the Order Form; or
3.3.2 within 30 days if the Client requests an invoice in the Order Form.
3.4 If the Client fails to pay any of the Fees by the due date, Create Development may, without prejudice to its other rights and remedies, charge the Client interest in respect of the sum overdue in accordance with The Late Payment of Commercial Debts (Interest) Act 1998 from the due date for payment to the date of actual payment (both dates inclusive) and Create Development will be entitled to reimbursement of all expenses (including legal fees) incurred with respect to collection of overdue Fees.
3.5 If the Client fails to comply with any of the terms of payment, Create Development reserves the right to suspend the provision of the BURSTS Platform under this Agreement until payment has been made.
3.6 Create Development reserves the right to increase the Fees at the end of the current Initial Term or current Renewal Term, provided Create Development informs the Client prior to the Notice Period.
3.7 All fees:
3.7.1 will be payable in pounds sterling; and
3.7.2 are exclusive of value added tax, which will be added at the appropriate rate.
- TERM AND TERMINATION
4.1 This Agreement will commence on the Agreement Date and will continue for the Initial Term or current Renewal Term unless terminated earlier in accordance with Clause 4.2.
4.2 Either Party may terminate this Agreement in writing as follows:
4.2.1 forthwith if the other Party commits a material breach of this Agreement which has not been remedied after 28 days written notice of the breach (such notice expressly referring to possible termination of this Agreement); or
4.2.2 forthwith if the other Party enters into any arrangement or composition with its creditors, commits any act of bankruptcy or (being a corporation) if an order is made or an effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction), or if a petition is presented to court, or if a receiver and manager, receiver, administrative receiver or administrator is appointed in respect of the whole, or any part of, the other Party’s undertaking or assets or there are reasonable grounds for anticipating the occurrence of any of these events within the foreseeable future.
4.3 The Agreement will renew automatically for the Renewal Term at the end of the Initial Term (or current Renewal Term) unless either Party provides written notice to terminate the Agreement within the Notice Period.
4.4 Termination of this Agreement, however arising, will be without prejudice to the rights and duties of either Party accrued prior to termination. Those clauses of this Agreement which are expressly or impliedly intended to continue after termination shall continue in effect after termination.
4.5 Any outstanding Fees from the Client upon termination of this Agreement will be paid to Create Development within 28 days of the termination date.
- THE BURSTS PLATFORM
5.1 Title in the BURSTS Platform will remain with Create Development for the duration of this Agreement.
5.2 The Client acknowledges that Create Development may amend the BURSTS Platform from time to time.
5.3 The BURSTS App will feed the Data to the BURSTS Platform.
5.4 The School must have an active connection to WONDE to use the BURSTS Platform.
- CLOUD SERVICES
6.1 Create Development shall use commercially reasonable endeavours to make the BURSTS Platform available 24 hours a day, seven days a week, except for maintenance which will normally be carried out in such a way that seeks to minimise disruption to the School.
6.2 The Client and School recognises that the BURSTS Platform is provided by Create Development through a public cloud hosting provider.
6.3 While Create Development will endeavour to have the BURSTS Platform available, Create Development:
6.3.1 does not warrant that the BURSTS Platform (or the content on it) will be always available or uninterrupted or error-free; or that the BURSTS Platform, and/or the information obtained by the School through the BURSTS Platform will meet the School’s requirements; and
6.3.2 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, without limitation, the internet, and the School acknowledges that the BURSTS Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- DATA PROTECTION
7.1 The School shall own all right, title and interest in and to all of the Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Data.
7.2 Create Development will process the Data in accordance with Schedule 1 of this Agreement.
- PROPRIETARY RIGHTS
8.1 The Client and School acknowledges and agrees that Create Development owns all intellectual property rights in the BURSTS Platform. Except as expressly stated, this Agreement does not grant the Client or School any rights to or in, patents, copyright, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the BURSTS Platform.
9.1 Notwithstanding any other provisions in this Agreement, nothing in this Agreement shall exclude or limit either Party’s liability for the following:
9.1.1 death or personal injury resulting from negligence;
9.1.2 fraud or statements made fraudulently;
9.1.3 any other acts or omissions for which the governing law prohibits the exclusion or limitation of liability.
9.2 Subject to the limitations set out in Clause 9.4, Create Development’s liability for a breach of this Agreement or negligence or any other claim in connection with this Agreement shall include liability for total failure of consideration given by Create Development.
9.3 Save as provided in Clauses 9.1 and 9.2, Create Development’s shall not be liable for any loss of profit, loss of business, loss of goodwill, loss of savings, loss of anticipated savings, indirect loss or consequential loss whatsoever and howsoever caused (even if caused by Create Development’s negligence and/or breach of contract and even if Create Development’s was advised that such loss would probably result).
9.4 Subject to Clauses 9.1 and 9.2, Create Development’s total liability for any claims, losses, damages or expenses whatsoever and howsoever caused (even if caused by Create Development’s negligence and/or breach of contract) shall be limited for each event or series of linked events as follows:
9.4.1 in relation to liability arising out of a breach or negligence in connection with this Agreement to a maximum sum equal to the greater of (i) 100% of the Fees (including applicable VAT) actually paid by the Client to Create Development during the last 12 months of the Agreement, or (ii) the Fees that would be payable in the first 12 months of the Agreement; or
9.4.2 in relation to liability outside the scope of Clause 9.4.1 to the Total Fees that would be payable in the first 12 months of the Agreement.
10.1 The Client will indemnify and keep indemnified Create Development against all losses, claims, liabilities and expenses arising out of any claim against Create Development arising out of any damage to the BURSTS Platform.
11.1 Any failure or delay by either Party in the performance of its obligations pursuant to this Agreement which is due to a force majeure event will not be deemed a default of this Agreement or a ground for termination provided that the affected Party notifies the other within 5 days of becoming aware of such an event. If the force majeure event continues for a period exceeding 60 days, the affected Party shall have the right to terminate to this Agreement immediately or written notice to the other Party.
11.2 Except for fraudulent misrepresentation, each Party acknowledges that this Agreement contains the whole agreement between the Parties in respect of its subject matter and supersedes all prior arrangements, agreements and understandings between them relating to the subject matter.
11.3 Neither Party shall assign or transfer any of its rights or obligations under this Agreement.
11.4 Any notice required or permitted under this Agreement shall be in writing by email to:
11.4.1 firstname.lastname@example.org for notice given to Create Development; and
11.4.2 the email address You provided to Create Development on the Order Form (or as amended by written notice), for notice given to You.
11.5 Each Party will comply with its obligations under all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
11.6 The Parties agree that nothing in this Agreement shall be construed as conferring any benefit on a third party and accordingly the Contract (Rights of Third Parties) Act 1999 is hereby expressly excluded from applying to this Agreement.
11.7 No addition to, or modification of, any provision of this Agreement will be binding unless made in writing and signed by duly authorised representatives of the Parties.
11.8 This Agreement is governed by English law and the Parties submit to the non-exclusive jurisdiction of the English courts.
SCHEDULE 1 – DATA PROCESSING AGREEMENT
- Create Development Limited (“the Processor"); and
- The Client (“the Controller").
Each a ‘Party’ and together the ‘Parties’.
By accepting these Terms the Client agrees to the terms set out in this Agreement. school
1.1 In this Schedule 1, except to the extent expressly provided otherwise:
"Data" means any Personal Data that is processed by the Processor on behalf of the Controller under or in relation to this Agreement;
"Data Protection Laws" means the EU GDPR and the UK GDPR and all other applicable laws relating to the processing of Personal Data;
"EU GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
"Personal Data" means personal data under any of the Data Protection Laws;
"UK GDPR" means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time.
2.1 This Schedule 1 supplements the Agreement.
2.2 Any capitalised terms that are:
(a) used in this Schedule 1;
(b) defined in the Agreement; and
(c) not defined in this Schedule 1,
shall in this Schedule 1 have the meanings given to them in the Agreement.
2.3 If there is a conflict between this Schedule 1 and the Agreement, then this Schedule 1 shall take precedence.
2.4 Any breach of this Schedule 1 shall be deemed to be a breach of the Agreement.
2.5 Any breach of the Agreement shall be deemed to be a breach of this Schedule 1.
2.6 This Schedule 1 shall automatically terminate upon the termination of the Agreement.
- Data protection
3.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Controller Personal Data.
3.2 The Controller warrants to the Processor that it has the legal right to disclose all Personal Data that it does in fact disclose to the Processor under or in connection with this Schedule 1.
3.3 The Controller shall only supply to the Processor, and the Processor shall only process, in each case under or in relation to this Schedule 1:
(a) the Personal Data of data subjects falling within the categories specified in Paragraph 1 of Schedule 2 (or such other categories as may be agreed by the parties in writing); and
(b) Personal Data of the types specified in Paragraph 2 of Schedule 2 (or such other types as may be agreed by the parties in writing).
3.4 The Processor shall only process the Controller Personal Data for the purposes specified in Paragraph 3 of Schedule 2.
3.5 The Processor shall only process the Controller Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 3.
3.6 The Processor shall only process the Controller Personal Data on the documented instructions of the Controller (including with regard to transfers of the Controller Personal Data to a third country under the Data Protection Laws), as set out in this Schedule 1 or any other document agreed by the parties in writing.
3.7 The Controller hereby authorises the Processor to make the following transfers of Controller Personal Data:
(a) the Processor may transfer the Controller Personal Data internally to its own employees, offices and facilities in the UK, providing that such transfers must be protected by appropriate safeguards;
(b) the Processor may transfer the Controller Personal Data to its third party processors in the jurisdictions identified in Paragraph 5 of Schedule 2 and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards; and
(c) the Processor may transfer the Controller Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.
3.8 The Processor shall promptly inform the Controller if, in the opinion of the Processor, an instruction of the Controller relating to the processing of the Controller Personal Data infringes the Data Protection Laws.
3.9 Notwithstanding any other provision of this Agreement, the Processor may process the Controller Personal Data if and to the extent that the Processor is required to do so by applicable law. In such a case, the Processor shall inform the Controller of the legal requirement before processing, unless that law prohibits such information.
3.10 The Processor shall ensure that persons authorised to process the Controller Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
3.11 The Processor and the Controller shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Controller Personal Data, including those measures specified in Paragraph 4 of Schedule 2.
3.12 The Processor must not engage any third party to process the Controller Personal Data without the prior specific or general written authorisation of the Controller. In the case of a general written authorisation, the Processor shall inform the Controller at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Controller objects to any such changes before their implementation, then the Controller may terminate this Agreement on 7 days' written notice to the Processor, providing that such notice must be given within the period of 7 days following the date that the Processor informed the Controller of the intended changes. The Processor shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Processor by this Clause 3.
3.13 As at the Effective Date, the Processor is hereby authorised by the Controller to engage, as sub-processors with respect to Controller Personal Data, third parties within the categories identified in Paragraph 5 of Schedule 2.
3.14 The Processor shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Controller with the fulfilment of the Controller's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
3.15 The Processor shall assist the Controller in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.
3.16 The Processor must notify the Controller of any Personal Data breach affecting the Controller Personal Data without undue delay and, in any case, not later than 48 hours after the Processor becomes aware of the breach.
3.17 The Processor shall make available to the Controller all information necessary to demonstrate the compliance of the Processor with its obligations under this Clause 3 and the Data Protection Laws.
3.18 The Processor shall, at the choice of the Controller, delete or return all of the Controller Personal Data to the Controller after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
3.19 The Processor shall allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller in respect of the compliance of the Processor's processing of Controller Personal Data with the Data Protection Laws and this Clause 3.
3.20 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
SCHEDULE 2 - DATA PROCESSING INFORMATION
- Categories of data subject
Students, Parents, School Administrators and Teachers
- Types of personal data
- Purposes of processing
See accompanying contract
- Security measures for Personal Data
- Sub-processors of Personal Data