IMPORTANT NOTICE: PLEASE READ THIS LICENCE CAREFULLY AS IT GOVERNS YOUR USE OF OUR SERVICE AND LIMITS OUR LIABILITY TO YOU
This software called sparkESSENTIAL/sparkPRO (and any subsequent bolt-ons under our ‘spark’ brand), are offered by spark which is a business run by Quality Early Years Ltd (No 10761378)
This is an internet based web service provided by Quality Early Years Ltd trading as spark www.sparkearlyyears.co.uk (the “Licensor”) registered address Dickens House, Guithavon Street, Witham, Essex, England, CM8 1BJ. WHEN THE LICENSOR ACCEPTS YOUR ORDER A CONTRACT IS FORMED AND YOU (the “Licensee”) ARE AGREEING TO THE TERMS OF THE LICENCE THAT APPEAR BELOW.
1.1 In this Licence the following words and phrases shall, unless the context otherwise requires, have the following meanings:
"Authorised Users" means those employees, agents and independent contractors of the Licensee who are authorised by the Licensee to use the Service, as further described in clause 5.1.2;
"Business Day" means a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business;
"Commencement Date" means the date of commencement of this Licence as notified to the Licensee by the Licensor;
"Fees" means the Licence Fee and Hosting Fee payable, or the Subscription Rate, by the Licensee to the Licensor under clause 8;
"Hosting Fee" as defined in clause 8.1.3;
"Intellectual Property Rights" means all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
"Licence Fee" as defined in clause 8.1.2;
"Licensee Data" means the data inputted by the Licensee or Authorised Users for the purpose of using the Service or facilitating the Licensee’s use of the Service;
"Month" means a calendar month;
"Order" as defined in clause 2.1;
"Registered Places" means the number of registered childcare places that the Licensee has been approved to provide general shown on the latest OFSTED report, the maximum number of children agreed if a Childminder of After School Club or where a setting is outside the UK as agreed before the sign on date;
"Renewal Date" means each 12 Month anniversary of the Commencement Date;
"Service" means the internet based service provided by the Licensor to the Licensee under this License via the Site or any other website notified to the Licensee by the Licensor from time to time, as more particularly described in Schedule 1;
"Site" means the website with the address www.sparkeyfs.co.uk;
"Software" means the online software application provided by the Licensor as part of the Service;
"Subscription Fee" as defined in clause 8.1.1;
"Virus" any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 The headings in this Licence do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Licence.
1.3 Unless the context otherwise so requires:
1.3.1 references to the Licensor and the Licensee include their permitted successors and assigns;
1.3.2 references to statutory provisions include those statutory provisions as amended or re-enacted;
1.3.3 references to any gender include all genders; and
1.3.4 references to writing or written include faxes and e-mails.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this Licence and any provision contained in any schedule or appendix, the provision in the body of this Licence shall take precedence.
2. Formation of a contract
2.1 Payment of the Fees (or the first instalment of the Fees where they are to be paid by instalment) constitutes an offer by the Licensee to purchase the Service in accordance with this Licence (the “Order”).
2.2 The Order shall only be deemed to be accepted by the Licensor when the Licensor issues a written acceptance at which point a valid contract shall come into existence. For the avoidance of doubt, the Licensor will not allow access to the site until the Licensee has agreed to the terms of this Licence when prompted on the Site.
2.3 If the Order is not accepted by the Licensor, the Licensor will refund any Fees that have been paid by the Licensee.
3. Provision of Service
3.1 The Licensor shall provide the Service to the Licensee on and subject to the terms of this Licence.
3.2 The Licensor undertakes that the Service will be provided using reasonable skill and care. Because of the nature of the internet, software and databases, errors and omissions do occur and the Licensor does not give any other warranties in respect of the Service. In particular, the Licensor does not warrant that the Service is free from infection or anything else that has contaminating or destructive properties.
3.3 While the Licensor endeavours to ensure that the Service is normally available 24 hours a day, the Service is provided by a third-party hosting company on behalf of the Licensor and its availability is dependent on server availability and broadband provision to any premises that the Licensee accesses the Service from. The Licensor shall therefore not be liable if for any reason the Service is unavailable at any time or for any period. The Licensor shall use reasonable endeavours to inform the Licensee of any planned down-time of which the Licensor has been made aware or any unplanned down-time of which it becomes aware but access to the Service may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond the Licensor’s control.
4. Licence and term
4.1 Grant of Licence
4.1.1 In consideration of the Fees to be paid by the Licensee to the Licensor and the Licensee agreeing to abide by the terms of this Licence, the Licensor hereby grants to the Licensee a non-exclusive licence for the full period of the copyright in the Software commencing on the date hereof to use the Software unless and until this Licence is terminated pursuant to clause 13.
4.2 Scope of use
4.2.1 For the purposes of clause 4.1.1, “use” of the Software shall be restricted to:
(a) downloading the Software from the Site; and
(b) the use of the Software on an unlimited number of computers that connect to the Service via the internet.
4.2.2 The Licensee may use the Software to access the Service.
4.2.3 Unless prior written permission is provided by the Licensor, the Licensee may not use the Software in conjunction with access to the Service otherwise than pursuant to this Licence. Any attempt to defeat or circumvent these enforced restrictions is a breach of this Licence.
4.2.4 The Licensee must maintain all copyright notices on all copies of the Software. Any alternation, change or removal of any identification from the Software, including but not limited to copyright, trademark or other notices or proprietary legends is forbidden. The Licensee may not rent, lease or lend the Software.
4.2.5 The Licensee shall have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part.
4.2.6 The Licensee shall not:
(a) access all or any part of the Service in order to build a product or service which competes with the Service; or
(b) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Authorised Users; or
(c) attempt to obtain, or assist third parties in obtaining, access to the Service except the Authorised Users.
5. Licensee’s obligations
5.1 In relation to the Authorised Users, the Licensee undertakes that:
5.1.1 each Authorised User shall keep a secure password for his use of the Service, that such password shall be changed no less than monthly and that each Authorised User shall keep his/her password confidential;
5.1.2 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Licensor within 5 Business Days of the Licensor’s written request at any time or times; and
5.1.3 it shall ensure that any Authorised User who ceases to be engaged by the Licensee (whether as an employee, agent or independent contractor) is no longer authorised to access the Service and that the Authorised User’s password for use of the Service is disabled.
5.2 The Licensee shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that:
5.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
5.2.2 facilitates illegal activity;
5.2.3 depicts sexually explicit images;
5.2.4 promotes unlawful violence;
5.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
5.2.6 causes damage or injury to any person or property;
and the Licensor reserves the right, without liability to the Licensee, to disable the Licensee’s access to any material that breaches the provisions of this clause.
5.3 The Licensee shall:
5.3.1 provide the Licensor with:
(a) all necessary co-operation in relation to this Licence; and
(b) all necessary access to such information as may be required by the Licensor;
in order to render the Service, including but not limited to Licensee Data, security access information and configuration services;
5.3.2 comply with all applicable laws and regulations with respect to its activities under this agreement;
5.3.3 ensure that the Authorised Users use the Service in accordance with the terms and conditions of this Licence and shall be responsible for any Authorised User’s breach of this Licence;
5.3.4 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Licensor, its contractors and agents to perform their obligations under this Licence, including without limitation the Service;
5.3.5 ensure that its network and systems comply with the relevant specifications provided by the Licensor from time to time;
5.3.6 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Licensor’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Licensee’s network connections or telecommunications links or caused by the internet; and
5.3.7 use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify the Licensor.
6.1.1 The Licensee shall have no right to sub-contract, sub-license or to assign the benefit or burden of this Licence in whole or in part or to allow the Software to become the subject of any charge, lien or encumbrance without the prior written consent of the Licensor.
6.1.2 The Licensor may at any time sub-contract, sub-license, assign, charge or otherwise transfer any of its rights or obligations under this Licence.
7.1.1 The Licensee shall permit the Licensor to inspect and have access to any premises, and to the computer equipment located there, at or on which the Software is being used, and any records kept pursuant to this Licence, for the purposes of ensuring that the Licensee is complying with the terms of this Licence provided that the Licensor provides reasonable advance notice to the Licensee of such inspections which shall take place at reasonable times. If any of the audits referred to in this clause 7.1.1 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Licensor’s other rights, the Licensee shall promptly disable such passwords and the Licensor shall not issue any new passwords to any such individual.
8.1 The Licensee shall pay to the Licensor without deduction, counter claim or set-off:
8.1.1 EITHER the "Subscription Fee" for the use of the software or
8.1.2 a licence fee (the “Licence Fee”) in the amount notified to the Licensee by the Licensor; and
8.1.3 where the Licence Fee is paid, an annual hosting fee (the “Hosting Fee”) in the amount notified to the Licensee by the Licensor, such Hosting Fee to be payable until this Licence is terminated under clause 13.
8.2 The Licensor shall be under no obligation to provide the Service until the Licensee has paid the Fees (or the first instalment of the Fees where they are to be paid in instalments).
8.3 If the Licensor has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Licensor:
8.3.1 the Licensor may, without liability to the Licensee, disable the Licensee’s password, account and access to all parts of the Service and the Licensor shall be under no obligation to provide any or all of the Service while the relevant Fees remain unpaid; and
8.3.2 interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Licensor’s bankers at the date the payment became due, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 The Licensor shall be entitled to increase the Hosting Fee at any time on or after the first Renewal Date upon 60 days’ prior notice to the Licensee.
8.5 The Fees payable by the Licensee has been calculated according to the number of Registered Places. If the number of Registered Places increases or decreases, the Licensee shall notify the Licensor immediately in writing of this fact.
8.6 If the number of Registered Places increases, the Licensor shall be entitled to increase the Fees payable by the Licensee pro rata in accordance with the number of additional Registered Places, such increase to be based on the Licensor’s standard fees as published at the time the number of Registered Places increases. The Licensee shall pay any amounts owing to the Licensee as a result of the increase in Fees within 30 days of being notified in writing of the increased Fees, except where the Licensee is paying the Fees in instalments in which case the amount of the instalments shall be increased pro rata in accordance with the increase in amount of the Fees and the number of instalments that remain to be paid.
8.7 If the number of Registered Places decreases, the Licensee shall be entitled to a decrease in the Hosting Fee pro rata in accordance with the number that the Registered Places have been reduced by, such decrease to be based on the Licensor’s standard fees as published at the time the number of Registered Places decreases. The Licensor shall issue a refund to the Licensee of any sums paid by the Licensee in excess of the reduced Hosting Fee within 30 days of being notified in writing by the Licensee that the number of Registered Places has decreased, except where the Licensee is paying the Hosting Fee in instalments in which case the amount of the instalments shall be reduced pro rata in accordance with the decrease in the amount of the Hosting Fee and the number of instalments that remain to be paid.
9. Licensee Data
9.1 The Licensee shall own all rights, title and interest in and to all the Licensee Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data.
9.2 The Licensor shall back up the Licensee Data once every seven days or at such other intervals as may be notified to the Licensee from time to time. In the event of any loss or damage to the Licensee Data, the Licensee’s sole and exclusive remedy shall be for the Licensor to use reasonable commercial endeavours to restore the lost or damaged Licensee Data from the latest back-up of such Licensee Data maintained by the Licensor. The Licensor shall not be responsible for any loss, destruction, alteration or disclosure of Licensee Data caused by the Licensee or any third party (except those third parties sub-contracted by the Licensor to perform services related to Licensee Data maintenance and back-up).
9.4 If the Licensor processes any personal data on the Licensee’s behalf when performing its obligations under this License, the parties record their intention that the Licensee shall be the data controller and the Licensor shall be a data processor and in any such case:
9.4.1 the Licensee acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Licensee and the Authorised Users are located in order to carry out the Service and the Licensor’s other obligations under this Licence;
9.4.2 the Licensee shall ensure that the Licensee is entitled to transfer the relevant personal data to the Licensor so that the Licensor may lawfully use, process and transfer the personal data in accordance with this Licence on the Licensee’s behalf;
9.4.3 the Licensee shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
9.4.4 the Licensor shall process the personal data only in accordance with the terms of this Licence and any lawful instructions reasonably given by the Licensee from time to time; and
9.4.5 each party shall take appropriate technical and organisation measures against unauthorised or unlawful processing of the personal data or its accidental, loss destruction or damage.
10.1 The Licensee shall defend, indemnify and hold harmless the Licensor against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Licensee's use of the Service, provided that:
10.1.1 the Licensee is given prompt notice of any such claim;
10.1.2 the Licensor provides reasonable co-operation to the Licensee in the defence and settlement of such claim, at the Licensee's expense; and
10.1.3 the Licensee is given sole authority to defend or settle the claim.
11. Licensor’s limits of liability
11.1 The Licensor does not warrant that the use of the Software will be uninterrupted or error-free, nor that the Service and/or the information obtained by the Licensee through the Service will meet the Licensee’s requirements and 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 the internet, and the Licensee acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.2 The Licensee assumes sole responsibility for results obtained from the use of the Service by the Licensee, and for conclusions drawn from such use. The Licensee shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Licensor by the Licensee in connection with the Service, or any actions taken by the Licensor at the Licensee’s direction.
11.3 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by applicable law.
11.4 Except as expressly and specifically provided in this Licence:
11.4.1 The Licensor shall have no liability for any losses or damages which may be suffered by the Licensee (or any person claiming under or through the Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, which fall within the following categories:
(a) special damage even though the Licensor was aware of the circumstances in which such special damage could arise;
(b) loss of profits; anticipated savings; business opportunity or goodwill; and
(c) loss of data; and
11.4.2 the total liability of the Licensor, whether in contract, tort or otherwise and whether in connection with this Licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee.
11.5 The Licensee acknowledges that no representations were made prior to entering into this Licence. The Licensee agrees that, in entering into this Licence, it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Licence. The Licensee shall have no remedy in respect of any representation (whether written or oral) made to it upon which it relied in entering into this Licence and the Licensor shall have no liability otherwise than pursuant to the express terms of this Licence.
11.6 The exclusions in clause 11.4 shall apply to the fullest extent permissible at law but the Licensor does not exclude liability for death or personal injury caused by the negligence of the Licensor, its officers, employees, contractors or agents, for fraud, for breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982 or for any other liability which may not be excluded by law.
12. Intellectual Property Rights
The Licensee acknowledges that all Intellectual Property Rights in the Software belong and shall belong to the Licensor and the Licensee shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Licence.
13.1 Either party may terminate this Licence at any time after the 12 Month anniversary of the date of this agreement by giving six weeks written notice to the other.
13.2 The Licensor may terminate this Licence immediately on written notice to the Licensee if the Licensee fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
13.3 Either party may terminate this Licence at any time on written notice to the other if the other is in material or persistent breach of any of the terms of this Licence and either that breach is incapable of remedy or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach.
13.4 Termination by either party in accordance with the rights contained in this clause 13 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.
13.5 Upon termination for any reason:
13.5.1 all rights granted to the Licensee under this Licence shall cease;
13.5.2 the Licensee shall cease all activities authorised by this Licence;
13.5.3 the Licensee shall immediately pay to the Licensor any sums due to the Licensor under this Licence;
13.5.4 each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
13.5.5 the Licensee shall print out a copy of the Licensee Data within 3 days of the date of termination. Following the expiration of this period, the Licensor shall destroy or otherwise dispose of any Licensee Data in its possession and provide the Licensee with written confirmation of the same; and
13.5.6 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. Force majeure
No party shall be liable to the other for any delay or non-performance of its obligations under this Licence arising from any cause or causes beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause 14 shall excuse the Licensee from any payment obligations under this Licence.
15. Confidentiality and publicity
15.1 Each party agrees and undertakes that during the term of this Licence and thereafter it will keep confidential all, and will not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confiden¬tial nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Licence or subsequently comes lawfully into the possession of such party from a third party.
15.2 The terms of this Licence are confidential and may not be disclosed by the Licensee without the prior written consent of the Licensor.
15.3 The provisions of this clause 15 shall remain in full force and effect notwithstanding any termination of this Licence.
16. No partnership or agency
16.1 Nothing in this Licence is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
No forbearance or delay by either party in enforcing its rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
If any provision of this Licence is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced.
Any amendment, waiver or variation of this Licence shall not be binding on the parties unless set out in writing, expressed to amend this Licence and signed by or on behalf of each of the parties.
20. Third party rights
No term of this Licence is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Licence.
Notices given to a party under or in connection with this Licence shall be in writing, and, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause. Notices may be sent by first-class mail or facsimile transmission provided that facsimile transmissions are confirmed within 24 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed facsimile transmissions shall be deemed to have been received instantaneously on transmission provided that they are confirmed as set out above.
22. Entire agreement
This Licence, the schedule and the notification of the Fees payable under this Licence together with any other documents referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
23. Governing law and jurisdiction
This Licence shall be governed by and construed in accordance with English law and each party hereby submits to the non-exclusive jurisdiction of the English courts.
spark offers a variety of software for early years settings to deliver, monitor and improve their EYFS curriculum. All our products are covered by this document. Currently, these include sparkESSENTIAL, sparkCHINA, sparkPRO, sparkSAFEGUARDING, sparkDIARY, spark@HOME and sparkCHINA@home. There are different terms and conditions if you have sparkADMIN as this product is supplied by a partner company.
spark as a company, continues to evolve and improve to help facilitate the Early Years Foundation Stage Curriculum and the ethos of 'getting it right for each individual child' and 'working in partnership with others'. Therefore, our products and the range we offer are never set in stone. We also, aspire to ensure each setting gains the maximum from the software within their own set requirements and offer ongoing support, guidance and training, via training resources and in person.