Terms And Conditions
Digital Services Terms & Conditions
Cherish Learning Ltd
Version dated: 8th August 2023
1. Your commitment to Cherish
1.1 When you purchase a subscription or licence to our digital products or services (Services), you will enter into a legally binding agreement (Agreement) with Cherish, which you must abide by. Details about the identity of Cherish are specified at the end of these terms and conditions. The Agreement contains:
a) The terms and conditions for subscriptions/licenses (Terms and Conditions)
b) The Terms of Use that regulate you/your End Users’ use of the Services (Terms of Use), which are available here: ….
c) The Privacy Statement governing our use of you/your End Users’ data (Privacy Statement)
1.2 You may be purchasing a subscription or licence for our Services for yourself, or, for multiple users in your school, multi-academy trust schools, tuition centres, within a local education authority or other educational institution (Institution).
Every individual who is authorised to use our Services is referred to as an end user (End User). For Institutions, this includes instructors, members of staff and contractors, students and their parents/ guardians, and such other individuals as may be deemed appropriate from time to time, for whom access has been purchased.
1.3 These terms and conditions are applicable whenever you purchase access to our Services. No terms and conditions contained in or referred to in any other correspondence, order, or documentation submitted by you, or implied by custom, practice, or course of dealing, shall apply.
2. Access to the Services
2.1 We will provide you with the necessary access mechanisms (such as a code) for your End Users to access the Services. You will be responsible for managing your End Users’ access to the Services in accordance with our guidelines.
2.2 If you are purchasing access on behalf of an Institution, you are responsible for administering password access for your End Users to the Services in accordance with our guidelines, including granting appropriate access to various categories of End Users such as students and teachers. Whether you purchase individual End User licences or a site licence with a size band, your purchase is limited to a maximum number of End Users, and this number must not be exceeded. If you desire to increase this number, you may be able to acquire additional End User Licences or subscriptions for certain products (but not all). In any case, you may not grant additional End Users access without purchasing additional licences/ subscriptions, if available.
2.3 When placing an order, you must provide accurate and complete information regarding the quantity of End Users. You are responsible for informing Cherish of any modifications to this information by emailing admin@cherishlearning.co.uk.
2.4 You are responsible for providing the necessary hardware, software, network connectivity, and Internet access to use the Services. On request, we will provide you with a detailed description of the required connectivity, server, and other hardware and software to access and use the Services.
3. Utilisation of the Services
3.1 If you are purchasing on behalf of an Institution for multiple End Users, you must ensure that all End Users comply with the Agreement. You are responsible for preventing your End Users from making unauthorised use of the Services.
3.2 If you believe that there has been a breach of security (such as the disclosures, theft, or unauthorised use of any ID or other passwords) or any other unauthorised use of the Services, you must immediately notify us by emailing admin@cherishlearning.co.uk or such other contact information as we may specify from time to time.
3.3 If we believe or have reasonable grounds to suspect that you or your End Users are using the Services in a manner that is not permitted by the Agreement, we may suspend you and your End Users’ use of the Services and block access from your ID (this will not affect any other legal rights 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 such a circumstance.
4. Intellectual Property Rights
4.1 Upon payment of the applicable fee, we will grant you a non-exclusive, non-transferrable licence for the duration of your Agreement (subject to clause 4.3 below) to retrieve and display materials delivered as part of the Services (Content) on a computer screen or other devices, print individual pages on paper and store such pages in electronic form for your internal educational non-commercial purposes only, and allow access only by you or, if you are purchasing for multiple users, by you and the other users.
4.2 End Users are permitted to:
- Use the Content that has been purchased for the End User only, for internal educational, non-commercial purposes on individual computer displays, devices, or interactive whiteboards within the Institution and at home.
- Modify/ personalise and print or download specific portions of the product(s) for classroom use, when expressly permitted to do so.
4.3 Except where permitted by applicable law, End Users may not (and you must ensure they do not):
- exploit commercially all or part of the Services or Content
- use, reproduce, manipulate, modify, or adapt the whole or any portion of the product and any Content, except as permitted in Clause 4.2
- reverse engineer, decompile or disassemble the Services in whole or in part
- disseminate any Content (including by incorporating it into a library, archive, or other similar service);
- sublicense, assign, transfer, loan, sell, lease, rent, charge, or otherwise trade in or encumber the Content, or make the Content accessible to a third party
- download any Content in whole or in part, except as permitted/ facilitated by the applicable product
- remove any copyright, trademark, and other notices from merchandise
- use the website to send chain letters, spam, or unsolicited email
- interfere with or disrupt the website, any product or any servers or networks connected to it or introduce any viruses or other detrimental properties to it or other users.
- disclose your password to a third party or allow a third party to use your password. Each End User is liable for any unauthorised use of his or her password.
4.4 The Content may contain content owned by third parties and licenced to Cherish (Third Party Content), which will be marked with the third party’s copyright notice. Certain Third Party Content will be subject to additional restrictions, which will be made plain by the applicable copyright notice. You are responsible for ensuring that all your End Users adhere to these constraints.
4.5 The Services may contain software owned by third parties that are made available for download as “plug-ins” so that End Users can view Content (Third Party Software). The terms of any licence agreement that may accompany or be included with the Third Party Software govern your and your End Users’ use of that Third Party Software. You authorise us to accept the terms of these licences on your behalf. You are responsible for assuring compliance with these licence agreements by End Users.
4.6 You acknowledge that on occasion we may need to remove certain parts of the Content for legal or commercial reasons (such as 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 effect such removal, you will immediately remove any part of the Content following our instructions upon receipt of a notice from us. If you have not removed such content within 24 hours despite our notice, you will indemnify us against all costs, claims, and expenses incurred as a result of your failure to comply.
4.7 You acknowledge that all brands, insignia, and product names used on the Services are trademarks, which you may not use without our prior written consent.
5. Fees
5.1. You agree to pay us the expenses listed on our invoice for the Services (expenses).
5.2 Unless we have agreed to provide you with credit terms, we will not make the Services available to you until we have received payment (or authorised your credit card payment).
5.3 If we have agreed to provide you with credit terms, we will issue a VAT invoice and you will pay the Fees in addition to any VAT due at the applicable rate. Invoices are due within thirty days of the invoice date. Cherish will issue invoices annually for annual subscriptions or licences.
5.4 If you order any additional products, content, or services from us (where available), you agree to pay for them at our then-current rates and they will be subject to the terms of this Agreement (as amended from time to time) or any other terms we may provide from time to time.
5.5 If you are delinquent on your payments, we may suspend you and your End Users’ access to all or part of the Services and/or terminate your subscription/licence.
5.6 We reserve the right to charge you interest on overdue monies at a rate of four per cent (4%) per annum above the prevailing rate of HSBC Bank plc from the due date until the date payment is received.
5.7 Regarding annual subscriptions or licences, we expressly reserve the right to increase all Fees from one year to the next. If in any given year the Fees have been paid in advance but are subsequently increased, you agree to pay the increased amount within 30 days of the date of our invoice.
5.8 Any right of setoff, deduction, or withholding is hereby expressly excluded, and all sums due from you shall be paid to us without any setoff, deduction, or withholding.
6. Confidentiality
6.1 Each party agrees to maintain the confidentiality of all business, financial, and other confidential information obtained from the other in connection with the Services. Each party will only disclose confidential information to those of its employees and subcontractors (or, in the case of Cherish, to its affiliated companies) who need to know it for the Agreement, and will use reasonable efforts to ensure that those employees, agents, and subcontractors comply with such restrictions.
6.2 The preceding obligations of confidentiality do not apply to any information that a party can demonstrate:
6.2.1 was in the public domain at the time of its acquisition or has subsequently entered the public domain other than as a consequence of a breach of its confidentiality obligations; or
6.2.2 before the first disclosure by the other party; or
6.2.3 it received the information independently from a third party with complete disclosure rights; or
6.2.4 is obligated to disclose by applicable law, court order, or stock exchange rules, provided it gives the other party sufficient notice in advance of such disclosure to take action against the order.
7. Data Protection
7.1 Scope and Definitions
a. This Data Protection clause does not apply if you are an individual consumer who purchased access to the Services on your behalf or on behalf of a minor for whom you have parental responsibility. If you are an individual consumer, please refer to our Privacy Statement here:
This clause applies if you are a teacher or member of an institution purchasing access on behalf of that institution.
b. The following definitions will apply to the objectives of this Data Protection clause:
“Customer” refers to the Institution that has purchased access to the Services and is a party to this Agreement.
“Customer Personal Data” refers to personal data processed by Cherish as a processor or subprocessor on behalf of and for the benefit of Customer;
Definition of “Data Protection Laws”
a. Before May 25, 2018, Directive 95/46/EC of the European Parliament and the Council on the protection of natural persons concerning the processing of personal data and on the free movement of such data; and
b. Beginning on May 25, 2018, GDPR (as defined below),
Including implementing and supplemental legislation;
“GDPR” refers to the EU Regulation 2016/679 on the protection of natural persons concerning the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC;
“Security Incident” refers to a security violation that results in the accidental or unauthorised destruction, loss, alteration, disclosure, or access of Customer Personal Data. Not included in Security Incidents are abortive attempts or activities that do not compromise the security of encrypted Customer Personal Data.
The terms “controller”, “data subject”, “personal data”, “processor”, and “processing” are defined by the Data Protection Laws;
7.2 Procedures for Processing
7.2.1 The Parties acknowledge and concur, subject to the immediately following paragraph, that:
(i) For purposes of this Agreement and as between them, the Customer is the controller of Customer Personal Data and Cherish is the processor of Customer Personal Data; and
(ii) Customer shall comply with its obligations as a controller under the Data Protection Laws, and Cherish shall comply with its obligations as a processor under the Agreement.
7.2.2 If Customer is a processor, Customer warrants to Cherish that the relevant controller has authorised Customer’s instructions and actions concerning Customer Personal Data, including Customer’s appointment of Cherish as another processor.
7.2.3 The Customer instructs Cherish to process the Customer’s Personal Data to provide the products and services outlined in this Agreement and Cherish agrees to do so.
7.3 Privacy of data processing
Cherish shall ensure that all individuals it authorises to process Customer Personal Data are subject to a duty of confidentiality (whether contractual or statutory), and shall process Customer Personal Data only as specified in this Agreement.
7.4 Rights of Data Subjects
7.4.1 Cherish shall provide Customer with reasonable assistance (at Customer’s expense) to respond to:
a. any request from a data subject to exercise any of its rights under Data Protection Laws relating to Customer Personal Data;
b. any other correspondence, enquiry, or complaint received from a data subject or regulator regarding Cherish’s processing of Customer Personal Data.
In assisting according to this clause, Cherish will not evaluate the content of Customer Personal Data to identify information subject to specific legal requirements.
7.4.2 If such a request, correspondence, inquiry, or complaint is made directly to Cherish, Cherish will instruct the requesting party to submit their request to Customer, who will be responsible for responding to such a request.
7.4.3 Cherish shall not disclose any Customer Personal Data in response to a request for access or disclosure from a third party without Customer’s prior written consent, unless required to do so by applicable law or otherwise permitted by the Agreement.
7.5 Data Protection Impact Assessments
If requested by Customer, Cherish will provide Customer with reasonable assistance, at Customer’s Expense, to (i) conduct a data protection impact assessment and (ii) if necessary, consult with its relevant data protection authority.
7.6 Disclosure of Data to the Data Protection Authorities
Customer will provide Cherish with the name and contact information of its local representative and/or data protection officer, and will maintain the accuracy of this information. When regulatory authorities request this information, Cherish is permitted to provide it.
7.7 Security
7.7.1 Cherish shall implement and maintain an information security programme that is reasonably appropriate for the Customer Personal Data, including implementing and maintaining all appropriate technical, security, and organisational measure to protect Customer Personal Data from accidental or unlawful destruction, loss, alteration, disclosure, or access.
7.7.2 Cherish shall promptly notify Customer of any Security Incident of which it becomes aware. All such notifications must be made following the notice provisions outlined in the Agreement, or at Cherish’s discretion, via phone call or email to the Customer representative with whom Cherish maintains a regular working relationship.
7.7.3 Cherish must take reasonable measures to remedy or mitigate Security Incidents.
7.7.4 Cherish shall cooperate with Customer and provide reasonable assistance and information to Customer as follows:
a. in the course of an investigation into a Security Incident; and
b. concerning any Security Incident Customer notifications made to a regulator.
7.7.5 Customer shall bear all costs associated with managing a Security Incident and fulfilling its obligations if the Security Incident results from Customer’s failure to perform its obligations under the Agreement or Customer’s End Users’ failure to comply with the Terms of Service.
7.7.6 The Customer is solely responsible for complying with any incident notification laws about Customer Personal Data and for fulfilling any third-party notification obligations relating to Security Incidents.
7.7.7 Cherish’s notification or response to a Security Incident under this Clause shall not be construed as an admission of culpability or liability by Cherish concerning that Security Incident.
7.8 Subprocessors
Cherish shall not provide access to or disclose any Personal Data of the Customer to a subcontractor or other third party without the prior consent of the Customer. Despite the foregoing, Customer expressly consents to the use of Cherish's affiliates as subprocessors. In addition, Customer generally authorises Cherish to engage third parties to process Customer Personal Data so long as Cherish imposes data protection terms to an equivalent standard as stipulated in this Agreement.
7.9 International data transmissions
The customer consents to Cherish's transfer and processing of Customer Personal Data within the European Economic Area. The customer also consents to the transfer and/or processing of Customer Personal Data outside of the European Economic Area, so long as the transfer is conducted following one of the permitted mechanisms specified by the Data Protection Laws.
7.10 Repercussions of Termination
Customer instructs Cherish to retain the Customer Personal Data for a reasonable period after termination or expiration of this Agreement to support any subsequent auditing or data recovery that Customer may require. Cherish shall thereafter eliminate all Customer Personal Data in its possession or under its control. This obligation (to destroy data) shall not apply if Cherish is required by its internal policies or by any European Union (or any European Union Member State) law or other applicable law or by any post-termination contractual obligations to retain some or all Customer Personal Data. Despite termination or expiration of this Agreement, the provisions of these data protection clauses shall continue to apply to any Customer Personal Data retained by Cherish.
7.11 Use of Anonymous Data
Customer agrees that Cherish may use and disclose anonymized Customer Personal Data for benchmarking, educational research, developing and improving products and services, or any other purpose related to the Agreement, both during and after the term of the Agreement. These de-identified data are not regarded as Customer Personal Data.
8. Events, part of services
If we offer live scheduled services for training or other purposes, webinars, live web conversations, or other similar activities related to the Services (Events), you agree to the following rules:
8.1 We may, at our sole discretion, permit you to substitute a delegate for an Event upon notification and at no additional cost.
8.2 If there is a separate fee for the Event in addition to the general Fees for the Services (Event Fee) and you do not attend the Event, the full Event Fee is still due.
8.3 You may revoke your reservation at any time within 14 calendar days of submitting your booking request, except for cancellations made within 10 days of an Event. If a delegate cancels 15 or more calendar days after booking an Event, or if the Event occurs within 10 days of the date you cancel, there will be no refund of Event Fees.
8.4 We reserve the right to cancel or reschedule events at our discretion. Events may be subject to minimum attendance requirements. If the Event is cancelled, any paid Event Fees will be refunded as soon as practicable (if any were paid). If the Event's time, date, location, or content is altered after your booking, you will be notified and given the option to rescind your reservation for a full refund of the Event Fee. We are not responsible for any additional loss or damage caused by such cancellations or alterations.
8.5 Cherish and its licensors own all copyright and other intellectual property rights to all training materials provided for an Event. You agree not to reproduce, sell, rent, or copy such training materials (in whole or in part) and to use them only for post-Event reference purposes.
9. Warranties
We warrant that:
9.1.1 We have complete authority and ownership to enter into the Agreement;
9.1.2 We will exercise reasonable skill and care in carrying out our duties under this Agreement.
9.2 However, we make no other warranties to you or your End Users. To the extent permitted by law, all other warranties, representations, or terms with equivalent effect that could be implied by law are excluded, including any warranties as to satisfactory quality or fitness for a particular purpose. We specifically cannot guarantee:
9.2.1 the completeness of the Content;
9.2.2 the availability of the Services;
9.2.3 that the Services will be free from contamination by computer viruses or any other agent with contaminating or destructive properties.
9.3 No Cherish representative is authorised to provide or make any additional representation, warranty, condition, or term, or to modify in any way the warranties provided in this clause 9.
10. Liability Limitation
10.1 Cherish shall not be liable for any loss of data, loss of profit, or wasted management time, whether direct or indirect damages and Cherish 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 or inability to use the Services, or from any action taken (or refrained from being taken) as a result of using the Services.
10.2 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 of the terms of your Agreement by any of you, your End Users, or other parties.
10.3 In any event and except as provided in clause 10.4, our liability to you for any claim for breach of the Agreement, negligence or otherwise relating to the Services shall be limited to the greater of the total Fees paid or payable to Cherish by you during the 12 months preceding the cause of action, or £500.
10.4 Nothing shall limit either party's liability for death or personal injury resulting from its negligence, for fraud, fraudulent misrepresentation, or for any other liability that cannot be excluded or limited by applicable law. In this case, clauses 10.1 through 10.3 shall not apply.
10.5 You must notify Cherish immediately if you receive a claim from a third party relating to the Services, and you must comply with Cherish's reasonable requests regarding such a claim.
11. Termination and withdrawal
11.1 Your Agreement and subscription commence on the date that we accept your order and continue for a period of 12 months from that date or such other period as is specified on the product. When we approve your order, we will provide you with a confirmation and/or grant you access to the Services.
11.2 If you have purchased a rolling annual subscription service, the Agreement will automatically renew for additional 12-month periods unless one of us notifies the other in writing at least 30 calendar days before the end of the then-current subscription period that it does not wish to renew the Agreement. In all other instances, the Agreement will expire after your subscription period.
11.3 If you are a consumer, you have the legal right to rescind your order within 14 business days of placing it and receive a full refund, provided you have not begun using the Services. If you would like to cancel your subscription, please email us at admin@cherishlearning.co.uk.
11.4 Either party may terminate the Agreement by providing written notice to the other party if the other party materially breaches any of the terms of the Agreement and fails to remedy the breach (if remediable) within fourteen days of receiving notice of the breach.
11.5 We may promptly terminate the Agreement if we believe or have reason to believe that a security breach has occurred, or if you or your End Users fail to comply with the Terms of Service.
11.6 If we discontinue the Services, we may terminate this Agreement by giving you 30 calendar days' notice (or less if we have an urgent business need). In such a case, we may offer you a pro-rata refund or a replacement product for the remainder of your subscription period.
11.7 Upon expiration or termination of this Agreement, your licence to utilise the Services will expire. You and your End Users must delete all downloaded Content from all servers and devices from which it was obtained. The provisions of clauses 4 (Intellectual Property Rights), 6 (Confidentiality), 7 (Data Protection), 9 (Warranties), 10 (Limitation of Liability), 11 (Termination), 13 (Content Submission), and 14 (General) shall survive any termination or expiration of this Agreement.
12. Changes
12.1 We constantly strive to enhance our Services. We reserve the right, at our sole discretion, to modify any portion of the Services so long as the modifications do not materially diminish the content or functionality of the affected portion of the Services. If we make any modifications that, in our opinion, materially diminish the content or functionality of the applicable Services, we will notify you and provide you with the option to cancel.
12.2 If we replace the Services with a different service/product during the term of your subscription, we will provide you with at least 30 calendar days' notice and permit you to cancel this Agreement. If you do not cancel your service, we may migrate you to the new replacement service for the remainder of your term at no extra cost.
12.3 Cherish reserves the right to modify the Agreement's terms with a one-month notice. Upon expiration of the notice period, the modified terms will take effect. The Agreement may be terminated with one month's notice.
13. Content Submission
13.1 The Service may enable certain End Users to upload appropriate educational content to the Services. Certain End Users may have the option to share their data with other End Users of their Institution or other institutions in the same regional area, or with all of our customers and their respective end users.
If you or your End Users choose to submit their content in this manner, you must only submit content that was created by you/your End Users, and you must grant us or procure the grant of a non-exclusive, royalty-free, perpetual, transferable, and irrevocable licence to use such content in the Services for exploitation in any media now known or hereafter invented.
You/your End Users retain all other rights to their content and are free to use it as they see fit, except for the copies uploaded to our website/products, which may only be used following the website/product's functionalities and our Terms of Service.
If you upload any content, you will comply with the Terms of Service and ensure that your End Users also comply if they upload and/or share any content via the Service.
13.2 The Services contain links to other websites and resources, either directly or via frames; whenever possible, the location of such links will be made explicit. These sites are maintained by unaffiliated third parties, and Cherish is not accountable for or liable for their accessibility or content.
14. General
14.1 We are not liable for any failure or delay in performing our respective obligations under this Agreement if the failure or delay is due to any cause or circumstance beyond our reasonable control, including but not limited to fire, war, acts of God, power outages, internet failures, security breaches, malicious hacks, changes in law and/or regulation, labour disputes, supply chain failures, "Force Majeure". In the event of a Force Majeure, we may terminate the Agreement and discontinue service.
14.2 Without our prior express written consent, you may not assign or transfer your rights or obligations under this Agreement. We may assign or convey our rights and responsibilities under this Agreement to any third party at any time.
14.3 This Agreement (including the Terms of Service and the Privacy Statement) constitutes the entirety of the agreement between us about its subject matter. You acknowledge that you did not rely on any statement or representation not recorded in this Agreement in entering into it; however, this does not exclude either party's liability for fraudulent pre-contractual statements or representations.
14.4 If any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, the validity of the remaining provisions of this Agreement shall not be affected and shall remain in full force and effect.
14.5 Your or Cherish's failure to exercise a right or remedy under this Agreement does not constitute a waiver of that right or remedy.
14.6 The relationship between the parties created by the Agreement is one of independent contractors, and not one of employment, agency, partnership, franchise, or joint venture. Each party shall conduct its respective business on its initiative, at its own expense, and without the authority to incur obligations on behalf of the other party.
14.7 Any notice required to be given under this Agreement to either party may be served by the other party by first-class mail, e-mail, or facsimile to the address or number specified by the party giving notice. Any notice served by mail is presumed to have been delivered on the next business day following the date of mailing. If confirmation of receipt is received, any notice sent by facsimile or email transmission is deemed to have been sent on the date of transmission.
14.8 Under the Agreements (Rights of Third Parties) Act 1999, a non-party to your Agreement has no right to enforce any of its terms.
14.9 Your Agreement shall be governed by and construed following English law, without regard to conflicts of law principles. You agree that the courts of England shall have exclusive jurisdiction to settle any dispute that may arise out of, under, or in connection with your Agreement or the legal relationship it establishes, and you irrevocably submit all disputes to the jurisdiction of the English courts for these purposes. However, we may also file a lawsuit against you in your home jurisdiction.
14.10 This Agreement's headings are for convenience only and have no legal significance or effect.
14.11 Any reference to a statutory provision includes any subsequent re-enactment or amendment.
15. Cherish company details
All references to "Cherish" or "we" throughout these Terms and Conditions refer to Cherish Learning Ltd, a company registered in England and Wales with company number 14527529.