Version dated 15 November 2020
1. Your Agreement with Pearson
1.1 When you buy a subscription or licence to our products or services set out in paragraph 2.1 below, (Services) there will be a legally binding agreement (Agreement) between you and Pearson which you must comply with. Details of who Pearson is are set out at the end of these terms and conditions. The Agreement includes:
- these subscription terms and conditions (Terms and Conditions),
- the privacy notice which governs our use of your/your End Users' data (Privacy Notice) which is available here.
1.2 Pearson has been appointed by the Education Endowment Foundation as an approved tuition partner (Tuition Partner) to deliver the National Tutoring Programme (the NTP). If you are purchasing the Services in connection with the NTP, you are expected to familiarise yourself and comply with any guidance issued by the NTP.
1.3 You may be purchasing a subscription or licence to our Services for use by multiple users in your school, your multi academy trust schools, your tuition centre, within a local educational authority or other educational organisation in the United Kingdom. Access to the Services in connection with the NTP will only be made available to institutions which are state-maintained in England. (Institution).
1.4 We refer to every individual who is authorised to use our Services as an end user (End User), this will include teachers who will be able to access the Services for administrative purposes only (Teachers) and pupils who are enrolled at your Institution for whom you have purchased and have invited to access the Services (Pupils).
1.5 For clarity, these Terms and Conditions will apply whenever you buy access to our Services. No terms or conditions contained or referred to in any correspondence, order, documentation submitted by you elsewhere or implied by custom, practice or course of dealing will apply.
2.1 If your order is accepted, Pearson shall, in accordance with the scope of your order, provide Pupils with scheduled one hour live tutorial sessions taught by a subject matter expert teacher, with Qualified Teacher Status (as awarded by the Teaching Regulation Agency (TRA), being the competent authority in England for the teaching profession on behalf of the Secretary of State for Education) (Tutor), who is contracted by Pearson to deliver the Services to Pupils on a 1:1 basis or in a group of no more than three Pupils (the Tutorials).
2.2 The Tutorials will be delivered online using a platform provided by a third party, Bramble Technologies Limited (Bramble) (the Platform), or may, if agreed with Pearson, be delivered by a Tutor at your school’s premises.
2.3 Pearson shall use reasonable efforts to ensure that the same Tutor is available for a specific block of tuition purchased. In the event that this is not possible, Pearson shall provide a substitute Tutor.
2.4 All online Tutorials will be recorded and the recordings stored on the Platform for a minimum period of six months following the end of a block of tuition or until the end of the NTP, whichever is later.
3. Access to the Services
3.1 We will issue you with a code to enable you to invite your End Users to access the Services. You will be responsible for administering access to the Services to your End Users and controlling such access in accordance with our guidelines.
3.2 You will designate a school lead who will be the primary point of contact for Pearson and who will be authorised to designate and control who is to receive Pupil access to the Platform as End Users. You may elect to have other individuals perform this function with written notification to Pearson. By designating the school lead, you authorise such individual(s) to request Services from Pearson and thereby commit your Institution to the corresponding fees.
3.3 Your purchase is for a maximum number of Tutorial Sessions for a maximum number of End Users and you may not exceed that number. If you wish to increase the number of Tutorials or number of End Users, you may be able to purchase additional Tutorial Sessions. In any case, you may not allow access to the Services by additional End Users without purchasing additional Tutorial Sessions where available.
3.4 In accordance with the NTP guidelines, you only may purchase one 15-hour subsidised block of tuition per Pupil from a Tuition Partner (Per Pupil Tuition Quota). By purchasing the Services from us in connection with the NTP you are confirming that your purchase will not exceed the Per Pupil Tuition Quota. If your purchase exceeds the Per Pupil Tuition Quota, you agree and acknowledge that Pearson will be entitled to recover the remaining 75% of the costs of the Services from you. If you wish to purchase more tuition per Pupil, you may wish to discuss this with us to see if we have capacity, but any such purchase will not be subsidised by the NTP and will be charged at full value of the Services.
3.5 You shall collaborate with us and the Tutor to schedule the Tutorials at mutually convenient times. The hours Tutors are available are as determined by Pearson at its sole discretion. You shall ensure that all scheduled Tutorials are included in the relevant Pupil’s timetable.
3.6 Please note, subscriptions or access codes purchased for your Institution and any associated log-in details may not be shared with or used by another institution or school, even if the schools are within the same multi academy trust.
3.7 You are responsible for all hardware, software, network availability and Internet connectivity required for you and End Users to use the Services. We will provide you on request with a specification of the connectivity, server, other hardware and software required to access and use the Services
4. Your Use of the Services
4.1 You must ensure that all your End Users comply with the Agreement. You are responsible for preventing unauthorised use of the Services by your End Users.
4.2 If you believe that there has been any breach of security (such as the disclosure, theft or unauthorised use of any ID or other passwords) or other unauthorised use of the Services you must notify us immediately by emailing firstname.lastname@example.org or such other contact as we may specify from time to time.
4.3 If we believe or have reasonable grounds to suspect that the Services are being used by you or your End Users in any way which is not permitted in the Agreement, we may suspend your and your End Users' use of the Services and block access from your ID (this will not affect any other legal rights which we may also have under the Agreement or otherwise) and we may choose to terminate your use with immediate effect. We will not refund your Fees in that case.
5. Intellectual Property Rights
5.1 No title to ownership of any portion of the Services or Archived Content shall be transferred by virtue of this Agreement. The Services and Archived Content shall remain the property of Pearson or its Licensor, as the case may be. Pearson reserves all of its intellectual property and proprietary rights to any information, data generated or gathered as part of the provisioning of the Services.
5.2 On payment of the applicable Fees, we will grant:
- Pupil End Users a non-exclusive non-transferable licence for the term of your Agreement (subject to clause 5.3 below) to retrieve and display the recording of the Tutorials they have attended and any materials delivered on the Platform as part of the Services (Archived Content) on a computer screen or other devices, print individual pages of any supporting documentation posted on the Platform by the Tutor on paper and store such pages in electronic form, in each case, for their internal educational non-commercial purposes only. Pupil End Users will only be able to access the Archived Content in respect of Tutorial Sessions they are registered to attend and have attended.
- Teacher End Users a non-exclusive non-transferable licence for the term of your Agreement (subject to clause 5.3 below) to retrieve and display Archived Content on a computer screen or other devices solely for administrative and review purposes.
5.3 Except where permitted by applicable law, you shall not and you shall ensure that End Users do not:
- commercially exploit all or any part of the Services or Archived Content
- use, reproduce, deal with, modify, adapt, the whole or any part of the Services and any Archived Content, except as permitted in Clause 5.2
- reverse engineer, decompile or disassemble the whole or any part of the Services or Archived Content
- redistribute the Services or any Archived Content (including by using it as part of any library, archive or similar service)
- sub-license, assign, transfer, loan, sell, lease, rent, charge or otherwise deal in or encumber the Services Archived Content or make the Services or Archived Content available to a third party
- download any Services or Archived Content either in part or in its entirety, except as permitted
- remove any copyright, trademark or other notices on any Service or Archived Content
- use the website or Platform to transmit any chain letters, spam or junk email
- interfere with or disrupt the website or Platform, any product or any servers or networks connected to it or introduce any viruses or other harmful properties into it or to any other users
- disclose your password to anyone or permit anyone else to use your password. You will be responsible for each End User’s use of his/her password.
5.4 The Services and Archived Content may contain content owned by third parties which is licensed to Pearson (Third Party Content) which will be marked with the copyright notice of those third parties. Some of the Third Party Content will be subject to additional restrictions - the relevant copyright notice will make it clear where that is the case. You are responsible for ensuring that all your End Users comply with these restrictions.
5.5 The Platform is owned by third party, Bramble and the use of the Platform by you and your End Users is governed by the terms of any licence agreement that Bramble may require you to adhere to regarding use of the Platform. You are responsible for ensuring that End Users comply with such licence agreements.
5.6 You acknowledge that on occasion we may need to remove certain parts of the Content for legal or commercial reasons (for example, if our licence to use Third Party Content or Third Party Software expires or terminates for any reason) and where we require your assistance to affect such removal, you will on receipt of a notice from us immediately remove any part of the Content in accordance with our instructions. In the event that you have not removed such content within 24 hours despite our notice, you will indemnify us against all costs, claims and expenses resulting from such non-removal.
5.7 You acknowledge that all brands, logos and product names used on the Services are trade marks and that you may not use them without our prior written permission
6.1 You agree to pay us the fees for the Services as set out in our invoice (Fees). If you are purchasing Services as part of the NTP the Fees will represent 25% of the full purchase cost of the Services (the Standard Cost). The remaining 75% is subsidised by the Education Endowment Foundation pursuant to the NTP.
6.2 We will issue an appropriate VAT invoice and you shall pay the Fees together with VAT due at the applicable rate. If you are purchasing Services as part of the NTP you will be charged VAT on the Standard Cost (which means VAT will be charged on the full value of the Services not just the discounted Fees). Invoices are payable within 30 days of the date of the invoice.
6.3 In the event that you order any additional products, content or services from us (where available), you agree to pay for these at our then current rates and they will be subject to this Agreement (as amended from time to time) or such other terms as we may provide from time to time.
6.4 We may suspend access by you and your End Users to all or part of the Services and/or terminate your subscription/licence if you are late with your payments.
6.5 We may charge you interest on overdue sums at the rate of four per cent (4%) per annum above the prevailing rate of HSBC Bank plc from the relevant due date until the date payment is made.
6.6 With regard to annual subscriptions or licences, we expressly reserve the right to increase any and all of the Fees from year to year. If in any year the Fees have been paid in advance but are subsequently increased, you shall pay the amount of any such increase within 30 days of the date of our invoice.
6.7 Any right of set off, deduction or withholding is hereby expressly excluded and all sums due from you shall be paid by you to us free from any deductions, withholdings or set off of any kind.
7.1 Each party agree to keep all commercial, financial or other confidential information obtained from the other in connection with the Services confidential. Each party will only disclose the confidential information to those of its employees, and sub-contractors (or, in the case of Pearson, to its affiliate companies) who need to know it for the purposes of the Agreement and shall use all reasonable endeavours to procure that those employees, agents and sub-contractors comply with such restrictions.
7.2 The obligations of confidentiality set out above shall not apply to any information which a party can show:
7.2.1 at the time of its acquisition was in, or at a later date has come into, the public domain, other than as a result of a breach of its confidentiality obligations; or
7.2.2 it knew prior to first disclosure to it by the other party; or
7.2.3 it received independently from a third party with the full right to disclose; or
7.2.4 is obliged to disclose by applicable law, court order or rules of a stock exchange provided that it gives the other party sufficient notice in advance of such disclosure to take action against the order.
8.1 Pearson’s Safeguarding Policies shall be available here for all End Users to read at any time. It is your responsibility to ensure compliance with the Safeguarding Policies of your Institution.
8.2 It is recommended that you only permit Pupils to access the online Tutorials on school premises where possible. In person Tutorials permitted by Pearson must only take place on your school premises. During Tutorials you shall be responsible for the Pupils’ welfare and shall ensure that the environment in which a Pupil accesses the Tutorial is safe and appropriate. It is recommended that a Teacher be available during the Tutorial for the Pupil to raise any issues that occur.
8.3 Pearson shall ensure that prior to granting the Tutor access to the Platform, the Tutor has:
8.3.1 Provided Pearson with evidence of their Qualified Teacher Status;
8.3.2 Successfully passed an Enhanced DBS + Barred Listing check;
8.3.3 Had their references checked;
8.3.4 Completed the UK Government’s Prevent course and Pearson’s safeguarding training course;
8.3.5 Read and agreed to comply with Pearson’s Safeguarding Policies
8.4 All communication between the Tutor and End Users shall be via the Platform or email addresses provided by the Platform for Tutors and End Users. Pearson shall conduct regular spot checks of Tutorials for safeguarding and teaching quality purposes. All Tutorials shall be recorded and stored in accordance with paragraph 2.4 above.
8.5 Pearson shall ensure that if the Tutor has a safeguarding concern about a Pupil, the Tutor contacts the Pearson Designated Safeguarding Lead for the Course. Pearson shall then promptly notify the Institution Designated Safeguarding Lead for the Institution to coordinate the appropriate action. Pearson shall ensure that the Tutor is reasonably available to assist the Institution in coordinating any such action.
9. Data Protection
9.1 As a Tuition Partner appointed by the EEF to deliver the NTP, we act as a data controller for the purposes of the applicable data protection legislation, in connection with the personal information that we process in order to deliver the Services.
9.2 You, will also act as a data controller for the purposes of the personal information that you handle in connection with your commissioning the Services for the use of your Pupils.
9.3 Subject to 9.4 and 9.5 below, the parties shall each be responsible for discharging their own obligations as data controllers in accordance with applicable data protection legislation.
9.4 You are responsible for ensuring that the Pupils whom you refer to the Services are provided with the Privacy Notices that we will supply to you for the information of staff, Pupils and parents.
9.5 You must also provide Pupils and parents with the withdrawal letters which they should complete if they choose to opt out of the evaluation of the NTP, conducted by the National Foundation for Educational Research. If parents or Pupils complete those letters they must be promptly sent to us at email@example.com so that we can process the request.
9.6 We shall retain the information collected in order to fulfil the Services for at least 6 months after the end of a block of tuition or until the end of the NTP, whichever is the later. After that time has passed you will be given the ability to delete the information that has been gathered in connection with your Pupils’ participation in the NTP, including recordings of tutoring sessions. Information relating to individuals participating in the NTP will be retained for up to 24 months before it is irretrievably deleted.
9.7 We may use and disclose for benchmarking, educational research, developing and improving products and services or for any other purposes data gathered in course of delivering the Services from which features directly identifying any individual have been removed on the basis that it will not be considered personal information for the purposes of applicable privacy legislation.
9.8 You agree that during and after the expiry of the Agreement, Pearson may use and disclose for benchmarking, educational research, developing and improving products and services or for any other related purposes personal data from which features directly identifying any individual have been removed. Such de-identified data is not considered personal data.
10.1 We warrant that:
10.1.1 we have full right and title to enter into the Agreement; and
10.1.2 we will use reasonable skill and care in the performance of our obligations under the Agreement.
10.2 However, we do not give you or your End Users any other warranties. All other warranties, representations or terms having equivalent effect that might be implied by law are excluded to the extent permitted by law, including any warranties as to satisfactory quality or fitness for a particular purpose. In particular, we cannot guarantee:
10.2.1 the accuracy of the Services and Archived Content;
10.2.2 the availability of the Platform;
10.2.3 that the Platform will be free from infection by viruses or anything else that has contaminating or destructive properties.
10.3 No representative of Pearson is authorised to give or make any other representation, warranty, condition or term or modify the warranties provided in this clause 10 in any way.
11. Limitation of liability
11.1 Pearson shall not be liable for any loss of data, loss of profit or wasted management time whether they are direct or indirect damages, and Pearson shall not be liable for any special, indirect, consequential or incidental damages (including damages for loss of use) arising from the Agreement, in tort or otherwise from your (or your End Users') use of or inability to use the Services, or from any action taken (or refrained from being taken) as a result of using the Services.
11.2 You acknowledge that we have no liability for any loss, claim or damage suffered by or made against you or your End Users as a result of any unauthorised access to the Services or breach by any of you, your End Users or other parties of the terms of your Agreement.
11.3 In any event and except for the circumstances set out in clause 11.4, our liability to you in respect of any claim for breach of Agreement, negligence or otherwise in relation to the Services shall be limited to the total Fees paid or payable to Pearson by you during the 12 months preceding the cause of action.
11.4 Nothing will limit either party's liability for death or personal injury caused by its negligence, or for fraud, fraudulent misrepresentation, or for any other liability that cannot be excluded or limited under applicable law. Clauses 11.1 through 11.3 shall not apply in these circumstances.
11.5 You must promptly inform Pearson in the event of any claim by a third party received by you in relation to the Services and you must comply with Pearson's reasonable requests in relation to such claim.
12.1 Your Agreement and subscription commences on the date we accept your order and continues for such period of time as indicated when placing your order. If you are purchasing Services pursuant to the NTP all Tutorials will need to be held prior to the end of the 2020/2021 academic year. We will confirm when we have accepted your order by providing you with confirmation and/or giving you access to the Services.
12.2 Either of us may terminate the Agreement by notifying the other in writing if the other materially breaches any of the terms of the Agreement and fails to remedy that breach (if capable of remedy) within 14 days of the notice of the breach.
12.4 We may terminate your Agreement by giving you 30 calendar days' notice (or less where we have an urgent business need) if we discontinue the Services. In that event, we may offer you a pro rata refund for any remaining Subscription period.
12.5 On termination of your Agreement your licence to use the Services will terminate. You and your End Users must delete all content you or they may have downloaded from all servers or devices you or they may have downloaded it to. The provisions of clause 5 (Intellectual Property Rights) clause 7 (Confidentiality), clause 9 (Data Protection), clause 10 (Warranties), clause 11 (Limitation of Liability), clause 12 (Termination), clause 15 (Content Submission) and clause 16 (General) will survive any termination or expiry of your Agreement.
13.1 Tutorials are subject to cancellation or rescheduling at our discretion.
13.2 If a Tutorial is rescheduled by a Tutor or Pearson, you will be notified as soon as practicable. If you or the End User need to reschedule a Tutorial, you must notify the Tutor at least 48 hours in advance of the scheduled Tutorial time. If you and the Tutor cannot agree a mutually convenient time for the rescheduled Tutorial within 14 days from the date of such notice, you will have the option to cancel the Tutorial for a full refund of that Tutorial. We shall not be liable for any additional loss or damage resulting from such cancellation or changes.
13.3 If an End User misses a scheduled 1:1 Tutorial (or in the case of small group Tutorials, all End Users fail to attend a scheduled Tutorial) (a “No Show”) and you have not notified the Tutor in advance in accordance with paragraph 13.2 above, then the full Fee for the Tutorial remains payable. A Tutorial will be deemed a No Show if no Pupil is in attendance during the first 15 minutes of the scheduled Tutorial.
13.4 In the case of small group Tutorials, if some but not all of the End Users attend a scheduled Tutorial, the cost of the full Tutorial will be charged to the Customer. We may, at our absolute discretion, allow you to substitute an End User in a Tutorial at no additional charge upon advance notification to us.
13.5 You may cancel your booking for a block of Tutorials at any time within 14 calendar days of sending us your booking request except that we will NOT accept any cancellations less than 10 days before a block of Tutorials is to commence. We will not make any refunds of Fees if you cancel 15 or more calendar days after booking a Tutorial Block, or if the first Tutorial Session falls within 10 days of the date you cancel. Please notify us by email at firstname.lastname@example.org if you wish to cancel your order.
13.6 Pearson and its licensors own all copyright and all other intellectual property rights in all materials provided in connection with a Tutorial. You agree that you and your End Users shall not reproduce, sell, hire or copy such materials (in whole or in part) and shall not use such materials except for the purposes of post-Tutorial reference.
14.1 We are continually seeking to improve the Services. We reserve the right, at our discretion, to make changes to any part of the Services, provided that the changes do not materially reduce the content or functionality of the relevant part of the Services. If we make any changes that in our view materially reduce the content or functionality of the relevant Services, we will notify you and give you a right to terminate.
14.2 If we replace the Services with a different service/product during the term of your subscription, we will give you at least 30 days' calendar notice and allow you to terminate this Agreement. If you do not terminate, we may choose to migrate you to the new replacement service for the remainder of your term without additional charge.
14.3 Pearson reserves the right to vary the terms of the Agreement on one month's notice. Upon expiry of the period stated in the notice, the varied terms shall apply. You may terminate the Agreement on one further month's notice.
15. Content submission
15.1 The Service may facilitate the upload of suitable educational content to the Services by certain End Users. The Service may have a functionality that allows certain End Users to choose to share either with other End Users of their Institution or other institutions either in the same regional area or to all our customers and their respective end users.
15.2 In the event that you or your End Users choose to submit their content in this way, you must only submit content that was created by you/your End Users and you shall grant us or shall procure the grant to us of a non-exclusive royalty-free perpetual transferable irrevocable licence to use such content in the Services for exploitation in any and all media whether now known or invented in the future.
15.5 The Platform may contain links to other web sites and resources, either directly or through frames and, where possible we will make clear where such links are being made. Independent third parties provide these sites and Pearson is not responsible and shall not be liable for the availability or content of these outside resources.
16.1 We will not be liable for any failure or delay in performing our respective obligations under this Agreement to the extent that the failure or delay is the result of any cause or circumstance beyond our reasonable control including but in no way limited to fire, war, acts of God, power outages, internet failures, security breaches, malicious hacks, changes in law and/or regulation, labour disputes, failures in the supply chain, "Force Majeure". We may terminate the Agreement and discontinue the Service in the event of a Force Majeure.
16.2 You may not assign or transfer your rights or obligations under your Agreement without our prior express written consent. We may at any time assign or transfer our rights and obligations under your Agreement to any third party.
16.4 If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions of this Agreement which shall remain in full force and effect.
16.5 Failure by either you or Pearson to exercise any right or remedy under this Agreement does not constitute a waiver of that right or remedy.
16.6 The relationship of the parties established by the Agreement is that of independent contractors, and not an employment, agency, partnership, franchise, joint venture or any other such relationship. Each of the parties shall conduct its respective business at its own initiative, responsibility and expense and shall have no authority to incur any obligations on behalf of the other party to the Agreement.
16.7 Any notice to be given under this Agreement to either party may be served by the other party either by being sent by first class post to such party at the address set out in the Agreement or such other address as that party may notify to the other from time to time or by e-mail or facsimile to such address or number as that party may notify from time to time. Any notice served by post shall be deemed to have been served on the working day next following the date of posting or sending. Any notice sent by facsimile or email transmission shall be deemed to have been duly sent on the date of transmission if a confirmation of receipt has been received.
16.8 A person who is not party to your Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
16.9 Your Agreement is governed by, and construed in accordance with, English law without regard to its conflict of laws. You agree that the courts of England shall have exclusive jurisdiction to settle any dispute which may arise out of, under, or in connection with your Agreement or the legal relationship established by it, and for those purposes irrevocably submit all disputes to the jurisdiction of the English courts. However, we may also bring an action against you in the courts of your place of residence.
16.10 Headings in this Agreement are for convenience only and will have no legal meaning or effect.
16.11 Any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provision.
17. Pearson company details
Throughout these Terms and Conditions all references to "Pearson" or "we" means Pearson Education Limited, a company registered in England and Wales with company number 872828, registered address 80 Strand, London WC2R 0RL, and VAT number GB278 5371 21.