These Terms of Service (together with the documents referred to on it) (“Terms of Service”) set out the Terms of Service on which Toptrack Learning Ltd (“Supplier”) shall supply the Services specified in the Order Form (“Order Form”) to the subscriber (“Subscriber”) whose details are also set out in the Order Form.
You should keep a copy of these Terms of Service for future reference.
Agreement: the agreement constituted by the Subscriber’s offer to purchase the Services from the Supplier and the Supplier’s subsequent acceptance of it in accordance with clause 2.2 of these Terms of Service.
Commencement Date: the date on which the Supplier accepts the Subscriber’s offer contained in the Order Form in accordance with clause 2.2 of these Terms of Service.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Deliverables: the Online Learning Materials together with any other reports, data or materials detailed in the Order Form (together with such other materials and documents as may be agreed from time to time between the Subscriber to the Supplier in writing) and which are to be supplied to the Subscriber as part of the Services.
Educational Centre: a school, college or other educational organisation.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Individual: individuals who request Services for their person use or for use in their personal tutoring of Students.
Online Learning Materials: the learning and development materials as developed by the Supplier or its agents, sub-contractors and employees in relation to the provision of the Services in any form, including computer programs, data, reports and specifications (including drafts).
Order Form: the order form detailing the Services, which may be a paper-based form requiring signature or an online submitted form.
Services: the provision to the Subscriber of the Deliverables.
Subscriber: the Educational Centre or Individual whose details are set out in the Order Form.
Students or Student: a student or students of the Educational Centre or Individual.
Subscriber's Equipment: any equipment, systems, cabling or facilities of the Subscriber which are used directly or indirectly in connection with the supply of the Services.
Supply Period: the period for which the Supplier shall supply the Services to the Subscriber under the Agreement, as set out in the Order Form, and which period shall commence on the Commencement Date.
Supplier: Toptrack Learning Ltd (registered no. 06828680) whose registered office is at Sowton Business Centre, Capital Court, Bittern Road, Exeter EX2 7FW.
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its sub-contractors and used directly or indirectly in the supply of the Services.
Teacher: a teacher employed or contracted by an Educational Centre.
Terms of Service: these Terms of Service.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Website: the website operated by the Supplier under the domain names www.vocabexpress.com and www.vocabexpress.co.uk, through which the Services shall be supplied to and accessed by the Subscriber.
Website Content: the Online Learning Materials made available in electronic form through the Website.
Website Usage Policy: the Website Usage Policy which govern the use of the Website.
1.1 Headings in these conditions shall not affect their interpretation.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 A reference to writing or written includes faxes but not e-mail.
1.5 Any obligation in the Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.6 References to conditions and schedules are to the conditions and schedules of the Agreement.
2.1 These Terms of Service shall apply to and be incorporated into the Agreement and prevail over:
(a) any inconsistent terms or conditions contained, or referred to, in the Subscriber's purchase order, confirmation of order, acceptance of a quotation, or specification or other Document supplied by the Subscriber, or implied by law, trade custom, practice or course of dealing; and
2.3 Quotations are given by the Supplier on the basis that no Agreement shall come into existence except in accordance with clause 2.2. Any quotation is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.
3.1 The Services shall be provided by the Supplier to the Subscriber beginning on the Commencement Date.
3.2 Subject to clause 12, the Services shall be supplied for the period specified in the Order Form or, if none, as specified in this clause, after which, the Agreement shall continue unless terminated by either party giving not less than 30 days' notice expiring at the end of that period or any subsequent anniversary of that expiry. If no period is specified in the Order Form then the period shall be one year from the date the Order Form is accepted by the Supplier.
4.2 The Supplier shall provide the Services through the Website, which shall be accessible by the Subscriber through a standard internet web browser and a standard personal computer. Those supported web browsers which may be used are listed on the Website.
4.3 Details of how to access the Services through the Website will be provided by the Supplier to the Subscriber separately in writing at the commencement of the Agreement.
4.4 The Supplier shall use all reasonable endeavours to ensure that the Online Learning Materials are available 24 hours a day, 7 days a week, subject to routine maintenance and Website updates and clause 13 below. The Supplier does not warrant that the Services shall be provided fault free, although it shall ensure that the Subscriber receives the quality of performance generally provided by the Supplier from time to time by all users of the Services.
4.5 The Supplier shall use all reasonable endeavours to rectify any defect or faults in the Services notified to it by the Subscriber.
4.6 The Supplier shall use all reasonable endeavours to ensure that the Deliverables are accurate, so far as is possible. However, the Subscriber shall be ultimately responsible for verifying the accuracy of the vocabulary data comprised in the Online Learning Materials.
4.7 If the Services are being provided to Educational Centres, the Supplier will:
(a) provide a unique identification code to the Educational Centre, which will enable its Teachers and Students to access to the Online Learning Materials and an administration login to enable the provision of individual logins and the configuration of the Teachers’ classes and tests;
(b) use reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services; and
(c) use reasonable endeavours to ensure that the Service is a valuable educational aid in bringing real benefits to Students. However, no warranty, express or implied, is given as to the effectiveness of the Service as an educational or revision aid, and the Supplier does not accept any liability for any errors, omissions or unsatisfactory examination results.
5.1 The Subscriber shall:
(a) notify the Supplier as soon as it experiences any difficulties in accessing the Website;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) ensure that the Uniform Resource Locators (URLs) of the Website is included on any list of permitted web sites that the Subscriber may maintain, and that these URLs are not included on its list of prohibited web sites;
(d) ensure that it shall not re-sell or offer in any manner to a third party the Service or use of or access to any Website Content;
(f) comply with and ensure that each of its Students (if any) comply with all procedures and policies which the Supplier may issue from time to time in relation to the use or operation of the Service;
(g) be responsible for ensuring the accuracy of any Subscriber Data and updating any accounts, details and information relating to for Students who access the Service;
(h) be responsible for training its Students in the use of the Service, although the Supplier shall provide all reasonable support in this regard to assist the Subscriber in doings so; and
(i) if a year group restriction is specified in relation to a subscription to the Online Learning Material, ensure that only Students in that the relevant year groups have access to that subscription.
5.2 If the Subscriber is an Educational Centre, the Subscriber shall:
(b) comply with and ensure that each of its Teachers comply with all procedures and policies which the Supplier may issue from time to time in relation to the use or operation of the Service;
(c) be responsible for training its Teachers in the use of the Service, although the Supplier shall provide all reasonable support in this regard to assist the Subscriber in doings so; and
(d) publicise the unique identification code provided by the Supplier to the Educational Centre to enable its Students and Teachers to access the Service.
5.3 If the Subscriber is an Individual, the Subscriber is responsible for ensuring that its login details are kept confidential and are not shared with anyone else.
5.4 If the Supplier's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Subscriber, its agents, sub-contractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Subscriber arising directly or indirectly from such prevention or delay.
If the Subscriber is an Educational Centre, clauses 6.1 to 6.8 shall apply.
6.1 In consideration of the provision by the Supplier of the Services, the Educational Centres shall pay the subscription fees as detailed in the Order Form. Such fees shall be paid to the Supplier upon acceptance of the Educational Centre’s offer in accordance with clause 2.2 of these Terms of Service or as otherwise specified in the Order Form. The Supplier shall not be entitled to vary the amount of the fees, unless otherwise agreed in writing between the Supplier and the Educational Centre.
6.2 The Supplier shall not charge, and the Educational Centre shall not be liable to pay for any expenses, charges, costs, fees, except those set out in the Order Form or as expressly agreed in writing by the Supplier and the Educational Centre.
6.3 Where the Supplier is obliged to charge VAT on its services and expenses, this will payable in addition to the fees and expenses at the appropriate rate (currently 20 per cent). VAT is therefore charged where applicable.
6.4 For each period specified in the Order Form, the Supplier shall invoice the Educational Centre for the charges that are then payable, together with VAT where applicable.
6.5 The Educational Centre shall pay each invoice that is submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by the Supplier, in all circumstances where payment is made otherwise than upon acceptance of the Educational Centre’s offer in accordance with clause 2.2 of these Terms of Service.
6.6 Without prejudice to any other right or remedy that it may have, if the Educational Centre fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of National Westminster Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Educational Centre shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
6.7 Time for payment shall be of the essence of the Agreement.
6.8 All sums payable to the Supplier under the Agreement shall become due immediately on its termination, to the extent not already paid at the time of termination and despite any other provision contained in these Terms of Service, unless termination occurs on the basis set out in clause 12.3. This clause 6.8 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
If the Subscriber is an Individual, clauses 6.9 to 6.10 shall apply.
6.9 In consideration of the provision by the Supplier of the Services, the Individual shall pay the subscription fees as detailed in the Order Form when submitting the Order Form. The Supplier shall not be required to provide the Services to an Individual until the Supplier has received payment in full (in cash or cleared funds).
6.10 For Individuals resident in the European Union, the subscription fees are inclusive of VAT. For Individuals resident outside the European Union, the subscription fee is exclusive of VAT.
7.1 As between the Subscriber and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. Accordingly, the Subscriber shall not seek to assert any rights over or in respect of such Intellectual Property Rights, which shall remain the absolute property of the Supplier in all circumstances.
7.2 The Subscriber shall ensure that it, its Teachers and its Students shall only use the Deliverables during the Supply Period as required for the purpose of using the Services on the basis that:
(a) the Deliverables and the Intellectual Property are used solely for teaching, training or study purposes;
(b) the Online Learning Materials may be viewed through a standard web browser, printed out or copied by the Subscriber, its Teachers or Students for teaching, training or study purposes only;
(c) the Deliverables may not be combined with or incorporated in any way with any other work or publication, including any learning platform.
8.1 The Subscriber shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Subscriber by the Supplier, its employees, agents, consultants or sub-contractors and any other confidential information concerning the Supplier's business or its products which the Subscriber may obtain.
8.2 The Subscriber may disclose such information:
(a) to its employees, Students, officers, representatives, advisers, agents or sub-contractors who need to know such information for the purposes of carrying out the Subscriber's obligations under the Agreement; and
(b) as may be required by law, court order or any governmental or regulatory authority.
8.3 The Subscriber shall ensure that its Teachers, Students, employees, officers, representatives, advisers, agents or sub-contractors to whom it discloses such information comply with this clause 8.
8.4 The Subscriber shall not use any such information for any purpose other than to perform its obligations under the Agreement.
9.1 This clause 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and sub-contractors) to the Subscriber in respect of any breach of the Agreement, any use made by the Subscriber of the Services, the Deliverables or any part of them and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
9.3 Nothing in these Terms of Service limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Subscriber as a result of fraud or fraudulent misrepresentation by the Supplier; or
9.4 Subject to condition 9.2 and condition 9.3, the Supplier shall not be liable for:
(a) any interruptions to, down time of or discontinuance or modification of the Services; or
(b) any damage to the Subscriber’s Equipment, as a result of using data exported from the Service; or
(c) the content of any website to which a hyperlink is provided on the Website, which shall be provided for convenience only on an “as is” basis and with no warranty (express or implied) for the information contained on such website; or
(d) any inaccuracies contained in the Online Learning Materials; or
(e) loss of profits; or
(f) loss of business; or
(g) depletion of goodwill and/or similar losses; or
(h) loss of anticipated savings; or
(i) loss of goods; or
(j) loss of contract; or
(k) loss of use; or
(l) loss of corruption of data or information; or
(m) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.5 Subject to condition 9.2 and condition 9.3, the Supplier's total liability to Educational Centres in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Agreement shall be limited to the price paid for the Services.
9.6 Subject to condition 9.2 and condition 9.3, the Supplier's total liability to Individuals in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Agreement shall be limited to two times the price paid for the Services.
10.1 If the Subscriber is an Individual, they usually have the statutory right to cancel the Agreement at any time within seven working days beginning on the day on which the Agreement is concluded.
10.2 Use of the Deliverables is a service offered by the Supplier and the Individual agree that the Services can start before the end of the usual seven working day cancellation period. This means that their cancellation rights will end when the performance of the Service starts.
11.1 In so far as applicable to the Service, each of the Supplier and Subscriber shall ensure that it complies with the Data Protection Act 1998 and any other applicable data protection legislation that may be in force or come into force during the continuance of the Agreement. In this clause, the terms "personal data", "process" and "data subject" have the meanings given to them in the Data Protection Act 1998.
11.3 Where, in connection with the Services, the Supplier needs to process personal data on behalf of the Subscriber, the Supplier shall:
(a) unless otherwise agreed in writing, only process the personal data to the extent and in such manner as is necessary for the provision of the Service or as is required by law or any regulatory body;
(b) implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Such measures shall be appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage to personal data and to the nature of personal data to be protected; and
(c) promptly notify the Subscriber if the Supplier receives a request from a data subject to have access to personal data or any other complaint or request relating to the Subscriber’s obligations under the Data Protection Act 1998.
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other on the giving to the other not less than one month’s written notice or immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 12.1(d) to condition 12.1(j) inclusive; or
(l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(m) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
12.2 Subject to clause 12.2(c) below, upon the termination of the Agreement for any reason:
(a) the Subscriber shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest (if any) and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
(b) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
(c) where the Supplier discontinues the provision of the whole of the Service to the Subscriber for any reason prior to the expiry of the Supply Period, then the Supplier shall give not less than 30 days’ prior notice to the Subscriber of the Supplier’s intention to do so and its intention to terminate the Agreement. Upon such termination, then where any sums have been paid by the Subscriber to the Supplier in advance of the provision of the Services and which Services have yet to be provided to the Subscriber at the date of termination, then the Supplier shall refund an amount to the Subscriber that is equal to the proportion of the total fees paid under the Agreement at the date of termination as the period between the date of termination and the date on which the Supply Period ends (rounded down to the nearest number of full months) bears to the Supply Period as a whole.
12.3 On termination of the Agreement (however arising), the following conditions shall survive and continue in full force and effect: clause 6; clause 7; clause 8; clause 9; clause 12 (including clause 6 for the purposes of such clause); and clause 22.
The Supplier shall have no liability to the Subscriber under the Agreement if it is prevented from, or delayed in performing, its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
14.1 The Supplier may from time to time and without notice, change or modify the technical specification of the Services for operation reasons or in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Supplier requests a change to the scope of the Services for any other reason, the Subscriber shall not unreasonably withhold or delay consent to it.
15.1 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
15.2 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
16.1 If any provision of the Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
16.2 If a provision of the Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17.1 The Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
17.2 Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of Agreement), as expressly provided in the Agreement.
17.3 Nothing in this condition shall limit or exclude any liability for fraud.
18.1 The Subscriber shall not (but the Supplier shall be entitled to), without the prior written consent of the other party, assign, transfer, charge, mortgage, sub-contractor, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Agreement..
18.2 Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
21.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party, or as otherwise specified by the relevant party by notice in writing to the other party.
21.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address set out in the Order Form or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
21.3 This condition 21 shall not apply to the service of any in any proceedings or other documents in any legal action.
21.4 A notice required to be given under the Agreement shall not be validly served if sent by e-mail.
Applicable laws require that some of the information or communications that the Supplier sends to the Subscriber should be in writing. When submitting Order Forms online, the Subscriber accept that communication with the Supplier will be mainly electronic. The Supplier will contact the Subscriber by e-mail or provide the Subscriber with information by posting notices on the Website. For contractual purposes, the Subscribers agree to this electronic means of communication and acknowledge that all contracts, notices, information and other communications that the Supplier provides to the Subscribers electronically comply with any legal requirement that such communications be in writing. This condition does not affect the Subscriber’s statutory rights.
23.1 The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
23.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including non-contractual disputes or claims).
Version: VETOS07 8th December 2011