TERMS AND CONDITIONS UNDER WHICH EARWIG SOFTWARE IS LICENCED TO SCHOOLS
EARWIG ACADEMIC REPORTING LTD PROVIDES SOFTWARE PACKAGES FOR EDUCATIONAL INSTITUTIONS. THESE INCLUDE :
- Earwig Classic – An app and associated software to capture and manage documents, images, audio and video files using smartphones, tablets and other computing devices and to present this data in a useful and appealing way to a closed user group of Pupils, Parents, School Staff and education authorities over the internet.
- Earwig Assessment – Software to allow staff users to attach media evidence to an assessment framework, document and track pupil progress and produce analysis and reports.
- Earwig Portfolio – Software to allow student to create, manage and present their own academic evidence, under supervision from teaching staff.
- Earwig Blog – The facility to create a blog from media acquired via Earwig Classic.
- Other user specific packages which are made up of elements from 1,2 and 3.
- The Company – Earwig Academic Reporting Ltd (also EARL) registered no. 08304947 and its subsidiary companies.
- Earwig – depending on context, either the Company or the Service provided by the Company.
- Earwig Website – the websites located at earwigacademic.com and earwig.uk.com or any other website provided by the Company for authorised Users.
- School – the term ‘school’ in this context means any type of educational establishment which subscribes to the Earwig service.
- School Year – For the purpose of this Agreement, a School Year starts on the 1st September each year and finishes on the 31st August the following year.
- School Administrator – refers to those people who have been given system administration access to administer the Earwig platform on behalf of a specific school by Earwig.
- Pupil – anyone, of any age who is receiving education of any sort from an educational establishment which subscribes to the Earwig system. A Student is a Pupil who has been given rights to create Records.
- Parent – the term ‘parent’ refers to parents, guardians or others recognised by the relevant schools as being responsible for one or more of their pupils and who have been invited by that school or approved by that school to participate in the Earwig facility.
- Staff – those people who have been given staff level Earwig login rights by a School.
- User or Account Holder – any Pupil, Parent, Staff, Administrator or other approved invitee who has been given current login rights to the Earwig system by the Company or a School.
- Earwig Image – An Earwig Image is one which has either been taken using an Earwig application or which has been uploaded into the Earwig system at any time. The word Image includes photos, documents and video and, where appropriate, products featuring these.
- Record – an Earwig Record is a report created by a School Staff member to record an occasion associated with one or more Pupils, which is usually supported by Images or video which have been uploaded into the Earwig database.
- Timeline – a time-based scrolling online presentation of a series of Earwig Records.
- Earwig Blog – is an online presentation of Earwig Records which have been modified by School Staff for consumption by people outside the Closed User Group of Staff, Pupils and Parents approved by the school to access Earwig data.
- Active – any Earwig Account Holder remains Active until Archived by Earwig.
- Archived – The login facility for Account Holders who are Archived is disabled and Earwig reduces the data held in its database to that necessary for purposes of historical record.
- The Service – is the software package described in sections I to iv above and includes the facility to offer for sale and fulfil orders for Images, photos, video clips and products derived from these. This service is provided in accordance with the service levels defined in the Earwig Service Level Agreement as amended from time to time and defined on the Earwig website.
- Earwig Application Form – a form providing Earwig with the necessary information to allow Earwig to set up The Service for a school. The form, together with these Terms and Conditions, form the contract between Earwig and the School.
- Contract Year – each Contract Year commences on the anniversary of the date on the Earwig Software Licence Application Form. In subsequent years, this date is the Anniversary Date.
1) SOFTWARE LICENCE
– Earwig gives each Client School a non-assignable and non-exclusive license to use the Earwig software provided by the Company as part of the Service. This license is for the sole purpose of enabling the School to use and enjoy the benefit of the Service, in the manner permitted by these Terms and is subject to the payment of an Annual Licence Fee determined by reference to the Earwig Price List displayed on the Earwig website.
2) DATA SETUP AND SYNCHRONISATION
– The School undertakes to Earwig to provide and keep updated a complete list of their Pupils, Parents, Staff, Curriculum and Earwig Administrators, along with the other pupil details necessary for the proper functioning of the Earwig process. This may be provided in spreadsheet form or through an automated connection with the school database, which is synchronised daily.
– The Service will commence on the Launch Date, this being the date on which the Earwig system first sends out emails to Staff advising them that the system is in operation at the school.
4) LOGIN ACCESS
– No-one may access the facilities provided by Earwig website without a login provided by Earwig. Apart from Earwig staff all logins apply to particular school account and are approved for access to that account by an authorised member of the school. The School undertakes to advise Earwig whenever a User ceases to be entitled to access to Earwig, whereupon their Earwig login will be immediately disabled.
5) RESTRICTED ACCESS FOR PUPILS/PARENTS
– Parents and Pupils are only able to see the Earwig Records and Timelines which have been tagged to their children by School staff.
6) CHARGES TO PUPILS/PARENTS
– There are no charges to Pupils or Parents for access to relevant Earwig records, images, videos or timelines for the previous year via the Earwig Website while any Pupil remains Active. The images and video which any Parent is authorised to see are held in a virtual gallery, accessed via a password protected login.
7) IMAGE RIGHTS
– The Images featured on the Earwig Website are the property of the School in question. The School undertakes to use these images only for the specific purpose of recording education to enable teachers, management or others in authority to support assessment decisions or to improve pedagogy or teaching outcomes. The School hereby provides the Company with the exclusive and unlimited right to display and sell, to Parents any Earwig images, at any time, in digital or physical form of any sort. The images sold may only be those which feature in the image gallery provided to the relevant parent by their specific account parameters. These sales will attract a commission payable to the school, as specified in Appendix 1.
8) LIMITATION ON IMAGE RIGHTS
– The School may download Images from the Earwig website without restriction. However, it is the responsibility of the school to hold and manage any Images that they wish to use or keep. Earwig will charge for the provision of any Images which are in accounts which have been archived. Images which have at any time been shown on the Earwig Website may not be disseminated beyond the School Staff (other than in official school publications) without payment to Earwig of compensation. The quantum of compensation will be determined by Earwig and dependent on the nature and extent of the image dissemination.
9) LICENCE TO REPRODUCE
– The copyright licence provided by this contract provides Earwig with the sole right to reproduce Earwig Images and video for commercial gain. Neither the school nor any third party may reproduce Earwig Images for financial gain without the written consent of Earwig and the payment of an agreed royalty.
10) DATA SECURITY
– Earwig is fully GDPR compliant. All Images and data are held on servers within the UK and are encrypted on transmission. Earwig only hold such data as is required to enable it to provide The Service. The Service is provided under the Earwig Data Security Policy which is available to view here.
– Earwig will try to ensure the accuracy and quality of the Service. However, the Service is provided on an “as is” basis and the Company does not (i) accept responsibility for any use of or reliance on the Service or for any disruptions to or delay in the Service; and (ii) make any representations as to the accuracy, comprehensiveness, completeness, quality, currency, error-free nature, compatibility, security or fitness for purpose of the Service.
12) RIGHT TO MODIFY
– Earwig reserves the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the service or any part thereof, with 60 days’ notice. The company shall not be liable to the School, account holders or any third party for any modification, suspension or discontinuance of the service. Continued use of the service after any such changes will indicate the School’s acceptance of any such changes.
– The fees charged to the School by Earwig for the Licence under which the Service is provide is specified in Schedule 3 of this Agreement. These include a Setup Fee, an Annual Licence Fee and additional annual fees for upgrades which may be provided from time to time. Earwig reserves the right to change the amount of any fee or charge and to institute new fees or charges at any time for any part of the Service. Client Schools must receive notice of these changes at least 60 days before any invoice containing these new fees is submitted. This notice will be in the form of an email circular to the address used for invoice submission.
– The invoice from Earwig to the School for the Setup Fee and the first of the Annual Licence Fees will be submitted to the School within 30 days of the School signing an Earwig Application Form. Thereafter, Earwig will invoice the School for the Licence Fee on each Anniversary Date. This is will be paid within the following 30 days. Any fees which are not paid 60 days after the invoice date will attract an interest rate of 2% per month simple on the outstanding fee amount until the full debt is paid off. If any fees or interest are unpaid 120 days after the due date, Earwig will be entitled to restrict access to the site by school staff and administrators.
15) PREMIUM PARENT ACCOUNTS
– Earwig may offer Parents free unlimited access to high resolution Earwig Images in return for a premium payment. Any School may opt to pay an additional fee to Earwig to ensure that all Parents at that school are entitled to this free access without payment.
16) IMAGE SALE PRICING
– The company will determine the lowest price at which these may be sold (the Base Price). However, individual Schools may price any image, print or product containing any Image generated through a School account at whatever higher figure they wish. Earwig may change the Base Prices for Images or products without notice but must advise schools in writing of any changes.
17) IMAGE SALES COMMISSION
– Earwig will provide a credit to the Earwig account of each School, based on sales of Images to relevant Parents. The commission paid is set out in Schedule 3 of this agreement. The commission is calculated by reference to the price paid for the item, net of VAT and postage, packing and handling. Earwig may change this percentage at any time, subject to 60 days’ written notice to the Schools concerned.
18) COMMISSION OFFSET
– School Earwig Administrators have access through their Earwig Dashboards to real-time reports of Image and product sales to related Users and the commission thus generated. If the commission generated in any payment year exceeds £100 it will be applied as a discount on the Annual Licence Fee for the subsequent year. Otherwise, it is carried forward to the following year. If the commission in any year exceeds the value of the licence fee, Earwig will generate a negative invoice and will pay the school within 30 days of its issuance.
19) TERMINATION NOTICE
– In the event that a School does not intend to renew its Earwig Licence it must provide Earwig with written notice of its intention (Termination Notice) at least 60 days before the end of the Contract Year for which it has paid. If this Notice is not received by Earwig, the contract will remain in force for the following year and full invoice sum for that year will be payable.
20) TERMINATION ARRANGEMENTS
– Once Earwig receives a Termination Notice it will disable all logins associated with that school on the last day for which the school has paid the licence fee – the Termination Date. It will be the responsibility of the School to inform relevant Users that the service is to be terminated.
21) ACQUISITION OF IMAGES IN THE EVENT OF CLOSURE
– In the event that Earwig ceases to provide the Service to a School as a result of a Termination Notice from a School, the School will be entitled to download any Images that they wish, at no charge, up to the Termination Date. Thereafter, they may purchase their entire Earwig Image database for £1.00 per Pupil per school year covered. However, Earwig may continue to sell Images to Individual Account Holders who will be given the opportunity to acquire high resolution digital copies of the Images in their accounts, on payment of a charge.
– Earwig trademarks, logos and Timelines are Copyright and may not be reproduced in any form without the written consent of Earwig. Any attempt by any entity to reproduce any combination of the Services or to offer an alternative version of the Service will result in an action for passing off.
23) INFORMATION PRIVACY
– Earwig is fully GDPR compliant. The company DATA SHARING POLICY AND GDPR COMPLIANCE and CHILD PROTECTION POLICY explain how Earwig treats each School’s and Pupil’s personal information, and protects their privacy. Schools agree to the use of their data in accordance with these policies.
24) INFORMATION SECURITY
– Schools are responsible for maintaining the confidentiality of passwords associated with any account used to access the Service. The School is responsible to Earwig for all activities that occur under its account logins. If a School becomes aware of any unauthorized use of Schools passwords or of any other breach of security, the Schools will notify Earwig immediately. The Company is not liable for any loss or damage arising from Schools failure to comply with any of the foregoing obligations.
– The School agrees to defend, indemnify, and hold harmless The Company, and its directors, officers, employees, and agents from and against all claims, losses, costs, and expenses (including legal fees) arising out of activities in connection with the unauthorized use of the Service by any of their Account Holders.
– Earwig retains the right to show advertising from selected and appropriate advertisers in banners around its web pages.
27) ASSIGNMENT OF OBLIGATIONS
– Either party may assign or transfer their rights and obligations under this Agreement to any company, subject to 30 days’ notice to the other party.
– If any part of this Agreement is found by a court to be invalid or unenforceable, the enforceable sections of this Agreement will remain binding upon the parties.
– Notices to Schools will be made via email to any designated School Administrator or by regular mail to the School address. Earwig may also provide notices of changes to this Agreement or other matters, by displaying such notice on the Earwig Staff Website Dashboard.
– This Agreement shall be governed by and construed in accordance with the laws of England and any disputes in relation to this Agreement shall be heard by the English courts.
– Where the provisions of these online Terms & Conditions differ from those in a printed contract, these online Terms & Conditions shall apply.
SCHEDULE 1 SERVICE LEVEL AGREEMENT
- SERVICE PROVISION
The Earwig service will be available to users 99.99% of the time.
This excludes times when users are unable to access the service due to breaks in the internet service between the Earwig servers and the user or access blockages caused by firewall settings at any individual School.
It also excludes planned downtime for hardware or software changes which will be advised by at least 48 hours in advance.
Data is backed up daily and any lost data will be restored within three days.
Minor improvements to the service will be made throughout the life of this contract. Unless otherwise advised in advance, these will not be charged for although the accumulation of these may impact on future licence fee levels.
Earwig will provide training courses for School staff, as requested by the School and paid for at the rates indicated in Schedule 3.
Included in the Earwig Licence Fee package is ongoing telephone and email support for both Schools and individual users via the 0333 6666 166 helpline and email@example.com. Earwig undertakes to respond to issues advised by phone and email within one working day. There are no additional charges for issue resolution.
Occasionally it can be necessary for Earwig support technicians to view an issue with you, in order to diagnose it fully and offer a solution. In circumstances where support technicians need to view the issue with you they may use remote access tools to view a user’s computer with them, in which case the user should remain at their computer and supervise the entire session.
Schools should avoid sending personal information, such as student/contact records, to us directly via email. You certainly should only send such information when supported by strong encryption, if there is an explicit requirement to do so. EARL staff will advise the most secure method for transfer if there is such an explicit requirement.
Remedies for failure to comply with these obligations may be negotiated with EARL. These may not exceed one month’s gross licence fee.
SCHEDULE 2 FEES AND COMMISSSIONS
S2.1 FEES PAYABLE FOR THE EARWIG SERVICE
CLASSIC (Basic service) £500 + £1pp
Assessment Lite (EYFS) + £200
Full Assessment package +£400
Additional Frameworks + £100
Portfolio + £100
SETUP FEES (1st year)
DATA SETUP £190
In school £280 per visit + £80 per extra session on the day
Online £ 80 per webinar
Custom Framework £300
Setup £50 (1st year)
Cluster Discount 10% per school, up to 5
Referral Discount 10%
Reference School Discount 20%
Contract Length Discount 10% – 3 years, 15%.- 5 years
Image sales 25% of net sales income
These commissions are credited to the relevant school’s Earwig account and, if exceeding £100 in value, will be applied as a credit against that school’s subsequent annual licence fee.
The figures in this schedule are subject to change, in accordance with the terms of this licence.
If a school is using a curriculum or assessment framework provided by a commercial institution which would normally charge a licence fee for the use of their copyright, it remains incumbent upon the school to continue to pay that organisation for the relevant licence to use their framework.