Fun Phonics Membership Terms and Conditions
School and Organisation Terms and Conditions
These School and Organisation Terms and Conditions apply to any organisation that signs up for any service provided by Fun Phonics.
Your use of our website is governed by our terms and conditions found at www.funphonics.education/terms-and-conditions as is your users’ use of our website. Our agreement with you is governed and defined by these School and Organisation Terms and Conditions. Together the two documents and any quote sent by Fun Phonics (in accordance with clause 3.4) govern and define your agreement with us and your use and your users’ use of our website and are referred to in these School Terms and Conditions as the Agreement.
In this document, a reference to School Terms and Conditions is a reference to these School and Organisation Terms and Conditions. A reference to the Standard Terms and Conditions is to our terms and conditions found at www.funphonics.education/terms-and-conditions. Where there is any conflict between the two documents, these School Terms and Conditions shall prevail.
1. Definition & Interpretations
1.1. The following definitions and interpretations apply to these School Terms and Conditions:
1.1.1. Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
1.1.2. Confidential Information: information (in whatever form) relating to the business or affairs of either party which is disclosed at any time by or on behalf of that party to the receiving party, or otherwise is in the possession of the receiving party, in connection with these School Terms and Conditions which is identified by any party as confidential or is clearly by its nature confidential.
1.1.3. Customer Default: a failure to pay any amount due to Fun Phonics in accordance with clause 10 or any material breach by the Customer.
1.1.4. Data Controller: A person or organisation who (either alone or jointly or in common with other persons or organisations) determines the purposes for which and the manner in which any personal data are, or are to be processed.
1.1.5. Data Protection Law: means all applicable legislation relating to data protection and privacy including the Data Protection Act 2018 (as amended from time to time) and the GDPR (as amended from time to time).
1.1.1. GDPR means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council.
1.1.6. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
1.1.7. Order: the Customer’s acceptance of Fun Phonics’ quotation.
1.1.8. Service: any service provided by Fun Phonics for which payment is required.
1.1.9. Personal Data: means any information which can identify an individual directly or indirectly as noted within Article 4(1) of the GDPR.
1.1.10. Sub-Contractor: Any individual (other than an employee), firm or company who enters into an agreement to perform work or provide professional services and/or supply goods.
1.1.11. Upgrade: any increase in the level of service provided by Fun Phonics for which additional payment is required.
1.1.12. User: an account which allows an individual access to any service provided by Fun Phonics for which payment would normally be required.
184.108.40.206. A person includes a natural person, corporate or incorporated body (whether or not having separate legal personality).
220.127.116.11. Unless the context otherwise requires, a reference to one gender shall include a reference to other genders.
18.104.22.168. The singular includes the plural and vice versa.
22.214.171.124. Reference to any enactment, order, regulation or other similar instrument, shall be construed as a reference to the enactment, order, regulation or instrument as amended by any subsequent enactment, order, regulation or instrument.
126.96.36.199. Reference to a clause is a reference to the whole of that clause unless stated otherwise.
188.8.131.52. References to clauses are to the clauses of these Schools Terms and Conditions.
184.108.40.206. These School Terms and Conditions shall be binding on, and ensure to the benefit of, the parties to these School Terms and Conditions and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
220.127.116.11. The headings of the clauses are for ease of reference only and do not form part of these School Terms and Conditions.
18.104.22.168. All communication between the parties, letters, documentation, specifications, reports etc. shall be in the English language.
22.214.171.124. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
126.96.36.199. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
188.8.131.52. Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.1. The parties to this agreement are:-
2.1.1. Fun Phonics Ltd a Fun Phonics registered under the laws of England and Wales with Fun Phonics number UK00003147621 at 6 The Moat, Pulborough, West Sussex, RH20 2DJ (hereafter referred to as Fun Phonics);
2.1.2. You, as the organisation contracting with Fun Phonics and as defined on the quote (hereafter referred to as Customer).
3. Basis of Contract
3.1. The Order constitutes an offer by the Customer to purchase the Service in accordance with these School Terms and Conditions.
3.2. The Order shall only be deemed to be accepted when the Customer is granted access to the Service by Fun Phonics at which point and on which date the contract shall come into existence.
3.3. Any advertising materials either digital or physical shall not form part of the Agreement between the parties nor have any contractual force.
3.4. Any quote provided by Fun Phonics to the Customer only forms part of the Agreement insofar as it details the price to be paid by the Customer for the Service and the Agreement Duration. Any other terms contained in the quote do not form part of the Agreement between the parties.
3.5. Any quote given by Fun Phonics does not constitute an offer.
4. Duration of Agreement
4.1. The Agreement will commence on the date the Customer is given access to the Service in accordance with clause 3.2.
4.2. When the Customer accepts Fun Phonics’ quote, they will do so for a certain number of years (the Agreement Duration). The Agreement will terminate after the Agreement Duration unless it is extended or terminated in accordance with these School Terms and Conditions.
4.3. Once the Agreement commences neither party may cancel the Agreement unless it is terminated in accordance with clause 11.
5. Customer Obligations
5.1. The Customer shall:
5.1.1. ensure that the terms of the quote are complete and accurate;
5.1.2. cooperate with Fun Phonics in all matters relating to the Service;
5.1.3. ensure that its employees and Sub-contractors comply with the Standard Terms and Conditions and these School Terms and Conditions; and
5.1.4. ensure that each User account is only used by one individual and account details are not shared between different individuals.
6. Changes to Services
6.1. Fun Phonics will provide the Service in accordance with the Standard Terms and Conditions to each User nominated by the Customer.
6.2. It is the Customer’s responsibility to notify Fun Phonics of each User in accordance with Fun Phonics’ requirements. Should the Customer fail to provide Fun Phonics with the details of any User then the Customer shall not be refunded for the costs of this User and will not receive the benefit of the additional User.
6.3. The Customer must nominate an account administrator. Only the account administrator or a member of the Customer’s leadership team has the authority to bind the customer or add or remove Users. Fun Phonics shall be under no obligation to speak to any other employee or Subcontractor of the Customer about the Customer’s account.
7.1. The Customer may request to extend the Agreement Duration through the Fun Phonics website or by contacting the Fun Phonics Team. Such a request constitutes an offer and the offer is only accepted when the Agreement Duration extension is confirmed by the Fun Phonics team or an invoice is sent by Fun Phonics to the Customer.
7.2. The cost of the extension to the Agreement Duration will be invoiced by Fun Phonics and the invoice must be paid by the customer in accordance with the terms at clause 10.
8.1. The Customer may request an Upgrade through the Fun Phonics website or by contacting the Fun Phonics Team. Such a request constitutes an offer and the offer is only accepted once the upgrade is activated by Fun Phonics.
8.2. The costs of any Upgrade will be invoiced by Fun Phonics and the invoice must be paid by the Customer in accordance with the terms that clause 10.
9. Adding Users
9.1. The Customer may add Users through the Fun Phonics website or by contacting the Fun Phonics Team. Such a request constitutes an offer and the offer is only accepted once the additional Users are confirmed by Fun Phonics. The costs of these additional Users will be invoiced by Fun Phonics and the invoice must be paid by the Customer in accordance with the terms at clause 10.
10.1. The Customer shall pay each invoice submitted by Fun Phonics:
10.1.1. within 21 days of the date of the invoice; and
10.1.2. in full and in cleared funds to a bank account nominated in writing by Fun Phonics, and
10.1.3. time for payment shall be of the essence of the contract.
10.2. All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by Fun Phonics to the Customer, the Customer shall, on receipt of a valid VAT invoice from Fun Phonics, pay to Fun Phonics such additional amounts in respect of VAT as are chargeable on the supply of the Service at the same time as payment is due for the supply of the Service.
10.3. If the Customer fails to make a payment due to Fun Phonics under this Agreement by the due date, then, without limiting Fun Phonics’ remedies under these School Terms and Conditions, Fun Phonics shall be entitled to suspend the Customer’s access to the Service and shall be entitled to charge the Customer (and if so charged the Customer must pay) a late payment fee of at least £40 and interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at a rate of 8.5% a year.
10.4. All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11.1. Without limiting its other rights or remedies, the Customer may terminate the Agreement with immediate effect by giving written notice to Fun Phonics if:
11.1.1. Fun Phonics commits a material breach of the Agreement and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of being notified in writing of the breach;
11.2. Without limiting its other rights or remedies, Fun Phonics may terminate the Agreement with immediate effect by giving written notice to the Customer if:
11.2.1. the Customer commits a material breach of the Agreement and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing of the breach;
11.2.2. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
11.2.3. where the Customer is a partnership, a voluntary arrangement is proposed, or any one or more of the partners in such partnership suffers an interim order or bankruptcy order to be made or petition is presented for his or her bankruptcy, or an interim receiver is appointed or he or she otherwise becomes insolvent or makes any general arrangement or composition with his or her creditors, in each case under any law relating to bankruptcy, insolvency or the relief of debtors anywhere in the world;
11.2.4. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the Customer;
11.2.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
11.2.6. the Customer (being an individual) is the subject of a bankruptcy petition or order;
11.2.7. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 10 Business Days;
11.2.8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
11.2.9. a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
11.2.10. a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
11.2.11. any event occurs or proceeding is taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2.2 to clause 11.2.10 (inclusive);
11.2.12. there is a direct or indirect change of control of the Customer, for which purposes “control” means the ability to direct the affairs of the Customer whether by virtue of contract, ownership of shares or otherwise howsoever;
11.2.13. the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
11.3. Without limiting or affecting any other right or remedy available to it, Fun Phonics shall have the right to suspend performance of the Service until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
12. Consequences of Termination
12.1. On termination or expiry of the Agreement, clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12.2. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
13. Data Protection
13.1. Fun Phonics and the Customer are co-Data Controllers (whether or not with anyone else) of any Personal Data provided by the Customer.
13.2. For the purposes of Data Protection Law, each shall, unless otherwise agreed, be individually responsible for ensuring that the processing each undertakes is in accordance with Data Protection Law, for ensuring so far as each is able the implementation of appropriate technical and organisational measures in accordance with Data Protection Law, and as regards the exercising of the rights of the data subject.
14.1. Except for the purposes of the Agreement, neither Fun Phonics nor the Customer will use or make available to any third party at any time during or after the Agreement any Confidential Information of the other party except that nothing shall prevent a party disclosing Confidential Information to the extent that it:
14.1.1. is or later comes into the public domain otherwise than as a direct or indirect result of disclosure by the party receiving the Confidential Information or a party engaged by that party, contrary to their respective obligations of confidentiality;
14.1.2. is required to be disclosed by law, order of court, the requirements of any regulatory authority or taxation authority or the rules of any stock exchange;
14.1.3. is disclosed with the prior written consent of the other party;
14.1.4. is or becomes available to the other party from third parties or is already known by the other party, otherwise than pursuant to the Agreement and free of any restrictions as to its use or disclosure;
14.1.5. is independently developed by the other party; or
14.1.6. is disclosed to its employees, professional advisors, agents and Sub-Contractors solely on a need-to-know basis provided that the disclosing party procures that the person to whom such disclosure is made complies with the obligations under this clause as if it were a party to the Agreement.
14.2. The Customer may inform any third party of the existence of this Agreement and may promote the fact that they use Fun Phonics on their website and on marketing materials but they may not use the Fun Phonics logo or any other marketing collateral owned by Fun Phonics without Fun Phonics’ express written permission. When describing Fun Phonics, the Customer agrees to call Fun Phonics’ Team.
14.3. The Customer may not share the price they are being charged by Fun Phonics with anyone except for their employees, governors, multi academy trust, local authority or the Department for Education.
14.4. Fun Phonics may use the Customer’s name, address, logo and website address on their website, social media and marketing materials and identify the Customer as a customer of Fun Phonics.
14.5. The Customer agrees that Fun Phonics may quote any feedback provided, in whatever form, by the Customer to Fun Phonics in any marketing materials whether online or in print and use the name of the Customer alongside any quotes.
15. Limitations of Liability
15.1. Nothing in these School Terms and Conditions shall limit or exclude either party’s liability for:
15.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or Sub-Contractors; or
15.1.2. fraud or fraudulent misrepresentation.
15.2. Subject to the above clause:
15.2.1. Fun Phonics shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement; and
15.2.2. Fun Phonics’ total liability to the Customer in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1.00.
15.3. Except as set out in these School Terms and Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
16.1. Except as expressly provided for in these School Terms and Conditions and to the fullest extent permissible by law, Fun Phonics provides no warranty:-
16.1.1. as to the fitness of the Service for a particular use; or
16.1.2. that the operation of the Service will be error free or uninterrupted.
17. Changes to Terms
17.1. Fun Phonics may make commercially reasonable changes to these School Terms and Conditions. If such changes are not covered by clause 17.2 then Fun Phonics will inform the Customer by updating the webpage on which these terms and conditions are published.
17.2. If Fun Phonics makes a material change to these School Terms and Conditions, Fun Phonics will inform the Customer by sending an email to the email address provided by the Customer to Fun Phonics. If the change has a material adverse impact on the Customer and the change is not a result of Fun Phonics complying with a court order or applicable law, the Customer may notify Fun Phonics within thirty days after being informed of the change that the Customer does not agree with the change. If the Customer notifies Fun Phonics as required, then the Customer will remain governed by the terms in effect immediately before the change until the end of the then-current Agreement Duration.
17.3. If the Agreement renews, it will do so under the updated School Terms and Conditions.
18. Anti-Bribery and Corruption
18.1. The Customer shall not, in relation to these School Terms and Conditions or any other agreement with Fun Phonics, request, offer, promise, agree to receive, accept or give a financial or other advantage to any person with the intention of inducing that person to perform a function or activity improperly or to reward any person for the improper performance of a function or activity, or where it is known that the acceptance of the advantage would itself constitute the improper performance of a function or activity.
18.2. The Customer shall not enter into this or any other agreement with Fun Phonics in connection with which commission has been paid or agreed to be paid by the Customer or to the Customer’s knowledge unless, before any such School Terms and Conditions is made, particulars of any such commission, and of the terms and conditions of any School Terms and Conditions for the payment thereof, have been disclosed in writing to Fun Phonics.
18.3. Fun Phonics may if:
18.3.1. reasonably satisfied that the Customer or anyone employed or acting on behalf of the Customer (whether with or without the knowledge of the Customer) is in breach of this clause in relation to this or any other School Terms and Conditions with Fun Phonics; or
18.3.2. the Customer or anyone employed or acting on behalf of the Customer is convicted of any offence under the Bribery Act 2010 (as amended from time to time) in relation to these Schools Terms and Conditions or any other agreement with Fun Phonics:
terminate the Agreement and recover from the Customer the amount of any loss resulting from the termination and/or recover from the Customer the amount of value of any gift, consideration or commission etc and/or recover from the Customer any other loss sustained in consequence of any breach of their Condition, whether or not the School Terms and Conditions has been terminated.
18.4. If Fun Phonics is approached by a member of staff or someone representing themselves as acting on behalf of Fun Phonics who seeks to persuade the Customer to take any steps that would constitute a breach of this clause or of the Bribery Act 2010 (as amended from time to time), the Customer must immediately contact Fun Phonics by emailing firstname.lastname@example.org.
19. Assignment and Sub-contracting
19.1. The Customer shall not assign or sub-contract any portion of the Agreement without the prior written consent of Fun Phonics.
19.2. Fun Phonics may sub-contract or assign any portion of the Agreement without consulting or seeking the consent of the Customer.
20.1. If any provision of these School Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of these School Terms and Conditions shall continue in full force and effect as if these School Terms and Conditions had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of these School Terms and Conditions, the parties shall immediately commence negotiations in good faith to remedy the invalidity.
21. Force Majeure Event
21.1. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 6 months, the party not affected may terminate these Schools Terms and Conditions by giving 28 days’ written notice to the affected party.
22. Remedies Cumulative
22.1. Except as otherwise expressly provided by the Agreement, all remedies available to either Fun Phonics or the Customer for breach of the Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
23.1. The failure of either party to exercise any right or remedy shall not constitute a waiver of that right or remedy.
23.2. No waiver shall be effective unless it is communicated to the other party in writing.
23.3. A waiver of any right or remedy arising from a breach of the Agreement shall not constitute a waiver of any right or remedy arising from any other breach of the Agreement.
24.1. Each party represents, undertakes and warrants that it has the full authority, power and capacity to enter into and fully perform the Agreement.
25. Third Party Rights
25.1. For the purpose of the Contracts (Rights of Third Parties) Act 1999, the parties agree that these Schools Terms and Conditions do not and are not intended to give any rights, or any right to enforce any of its provisions, to any person who is not a party to it.
26. No Partnerships or Joint Venture
26.1. Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party to be the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
27.1. Any notice or other communication given to a party under or in connection with these Schools Terms and Conditions shall be in writing and shall be:
27.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service to the address provided to Fun Phonics by the Customer (in the case of the Customer) or its registered office (in the case of Fun Phonics); or
27.1.2. sent by email to the email provided to Fun Phonics by the Customer (in the case of the Customer) and email@example.com (in the case of Fun Phonics).
27.2. Any notice or communication shall be deemed to have been received:
27.2.1. if delivered by hand, on signature of a delivery receipt;
27.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
27.2.3. if sent by email, at 9.00 am on the next Business Day after transmission.
28. Entire Agreement
28.1. The Agreement constitutes the entire agreement between the parties relating to the subject matter of the Agreement. The Agreement supersedes all prior negotiations, representations and undertakings, whether written or oral, except that this clause shall not exclude liability in respect of any fraudulent misrepresentation.
29. Deviating Terms
29.1. If, at any point during the negotiating process that leads to the agreement of the Agreement or at any point during the term of the agreement governed by the Agreement, the Customer issues any separate written statement, such as a purchase order, that contains additional or deviating terms or conditions, such additional or deviating terms or conditions shall not apply between the parties.
29.2. Amendments to the Agreement or deviating terms shall only apply if they are explicitly accepted in a written statement issued and signed by a director of Fun Phonics. In any event, the Agreement shall take precedence over any deviating terms.
29.3. The applicability of any purchasing or other general terms and conditions is expressly rejected.
30. Governing Law
30.1. The Agreement shall be governed by and interpreted in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
Data Processing Agreement in relation to Fun Phonics Assessment
The data processing agreement contained within this Schedule (the “Data Processing Agreement”) only relates to the Customer’s entry of Pupil Data into the Fun Phonics Assessment product (the “Product”). It does not relate to any other product or service provided by Fun Phonics including any other data entered into the Product.
Where the Customer has signed up to use the Product, this Data Processing Agreement forms part of the agreement between Fun Phonics and the Customer. Where there is a conflict between the terms in this Data Processing Agreement and the School Terms and Conditions, the Customer Terms and Conditions shall take precedence.
In this Data Processing Agreement only, the following definitions shall apply:
Data Controller, data subject, personal data, process, Data Processor and supervisory authority shall have the meanings set out in the GDPR;
GDPR: means the General Data Protection Regulation (Regulation (EU) 2016/679), or similar legislation as implemented under English law (including any national implementing laws, regulations and secondary legislation), in each case as applicable and in force in the United Kingdom from time to time;
De-Identified Data: means information that has all direct and indirect personal identifiers removed such that the data cannot be reasonably be used to identify or indirectly identify a Pupil User;
Model Clauses: mean the clauses established pursuant to Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection (or any equivalent clauses subsequently introduced pursuant to the implementation of the GDPR);
Pupil Data: means any personal data, whether gathered by Fun Phonics or provided by the Customer that is directly related to the Pupil User as specified in Appendix 1. Pupil Data shall not constitute any information that has been anonymised, De-identified Data, or anonymous usage data regarding a Pupil’s use of the Product;
Pupil User: means an individual who is below the age of 18 and has been provided access to the Product by the Customer though an account;
Privacy Shield: means the EU-U.S. and Swiss-US Privacy Shield self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to its Decision of July, 12 2016 and by the Swiss Federal Council on January 11, 2017 respectively;
Fun Phonics Personnel: means the employees, staff, other workers and agents of Fun Phonics and any of Fun Phonics subcontractors or agents who are engaged in the provision of the Fun Phonics Product from time to time.
The definitions used in the School Terms and Conditions shall apply to this Data Processing Agreement.
References to Article numbers of the GDPR shall be deemed to include the equivalent provisions in the event the Article numbers in the legislation are changed from time to time.
General Provisions Fun Phonics, to the extent it is acting as a Data Processor in respect of such Pupil Data, agrees to:
1. process the Pupil Data on documented instructions from the Customer (including those set out in this Agreement), unless required to do so by English, European Union (EU) or EU Member State law to which Fun Phonics is subject. In such a case, Fun Phonics shall inform the Customer of that legal requirement before processing (unless that law prohibits such information on important grounds of public interest); and
2. ensure that Fun Phonics Personnel are authorised to process the Pupil Data and have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
The subject-matter and duration of the processing, the nature and purpose of the processing, the type of Pupil Data and categories of data subjects shall be as set out in Appendix 1 (which may be updated by the parties in writing from time to time).
The Customer warrants and represents that:
1. it has all authority, grounds, rights and consents necessary as a Data Controller to enable Fun Phonics to process the Pupil Data in accordance with the GDPR for the purposes of this Agreement;
2. it shall comply with the GDPR and all other applicable laws and regulations, relevant industry codes of practice and guidance in relation to the processing of personal data; and
3. the information set out in the table at Appendix 1 is accurate.
Subcontracting and International Transfers
The Customer instructs Fun Phonics (and authorises Fun Phonics to instruct any sub-processor it appoints) to:
1. process Pupil Data in relation to the Product of which the Customer is the Data Controller; and
2. transfer Pupil Data outside the EEA provided that, in respect of any transfers outside of the EEA:
(a) an adequacy decision applies in relation to the relevant third country (such as the Privacy Shield) or an appropriate safeguard is in place in relation to the transfer (such as the Model Clauses) or Fun Phonics enters into the Model Clauses on behalf of the Customer (which the Customer hereby authorises Fun Phonics to do);
(b) the Customer consents to the transfer or transfers; or
(c) such transfer is necessary to transfer Pupil Data back to the Customer who is outside the EEA.
In each case as reasonably necessary for the provision of the Product and in accordance with the terms of this Agreement, the Customer warrants and represents that it will at all times remain duly and effectively authorised to give the instruction set out in this clause.
The Customer acknowledges and agrees that Fun Phonics may sub-contract to a third party. The Customer consents to Fun Phonics engaging sub-processors in relation to the Pupil Data and consents to the engagement of those sub-processors listed on Fun Phonics list of approved GDPR compliant Suppliers in Appendix 3.
Fun Phonics shall inform the Customer of any intended changes concerning the addition or replacement of such processors in Appendix 3 and shall be deemed to be entitled to appoint such processors unless, within five days of informing the Customer, Fun Phonics receives written notice from the Customer objecting to such changes.
Where Fun Phonics receives written notice from the Customer in accordance with the above paragraph Fun Phonics shall not appoint the proposed processor until reasonable steps have been taken to address the objections raised by the Customer and Customer has been provided with a reasonable written explanation of the steps taken.
Fun Phonics shall ensure that the arrangement between it and each processor are governed by a written contract including equivalent data protection obligations as those set out in this Agreement which are required by Article 28(3) of the GDPR.
Security and Breach Notifications
Fun Phonics, to the extent it is acting as a Data Processor in respect of such Pupil Data, agrees to:
1. taking into account the state of the art, the costs of implementation and the nature scope, context and purposes of processing, as well as the risk of the varying likelihood and severity of rights and freedoms of natural persons, in relation to the Customer’s Pupil Data, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk including considering those measures referred to in Article 32 of the GDPR (‘Security of processing’). These security measures are described in Appendix 2 and which may be updated by Fun Phonics in writing from time to time;
2. taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising data subjects’ rights laid down in Chapter III (‘Rights of the data subject’) of the GDPR;
3. taking into account the nature of the processing and information available to Fun Phonics, provide assistance to the Customer in order to assist the Customer in ensuring the Customer’s compliance with the obligations set out in GDPR Article 32 (‘Security of processing’), Article 33 (‘Notification of a personal data breach to the supervisory authority’), Article 34 (‘Communication of a personal data breach to the data subject’), Article 35 (‘Data protection impact assessment’), and Article 36 (‘Prior consultation’), in each case solely in relation to processing of the Customer’s Pupil Data.
Compliance Cooperation and Data Subject Rights
Fun Phonics, to the extent it is acting as a Data Processor in respect of such Pupil Data, agrees to:
1. pass on to the Customer any requests of an individual or individuals with legal authority to delete, release, correct or block Pupil Data processed under this Data Processing Agreement;
2. at the option of the Customer, delete or return all the personal data of the Pupil to the Customer after the end of the provision of the Product relating to processing, and delete existing copies unless English, EU or EU Member State law requires storage of the Pupil Data;
3. make available at the request of the Customer all information necessary in relation to Product to demonstrate compliance with Article 28 of the GDPR and permit audits and inspections conducted by the Customer or an inspection body composed of independent members and in possession of the required qualifications bound by a duty of confidentiality, selected by the Customer, where applicable, in agreement with the supervisory authority; and
4. immediately inform the Customer if, in its opinion, an instruction of the Customer infringes the GDPR or other EU or EU Member State data protection provisions.
The Customer confirms it has assessed the provisions of Appendices 1, 2 and 3 in relation to the Customer’s Pupil Data and this Data Processing Agreement more generally, and acknowledges that the standards implemented by Appendix 2 are appropriate to the risks. As between the Customer and Fun Phonics and to data subjects and supervisory authorities, the Customer shall be responsible if the measures set out in Appendix 2 do not meet the GDPR standard of appropriateness referred to in Article 32 of the GDPR (or equivalent).
The Customer shall (at its own cost) provide assistance requested by Fun Phonics in relation to the fulfilment of Fun Phonics obligation to cooperate with the relevant supervisory authority under Article 31 GDPR. Notwithstanding any other provision of this Agreement, Fun Phonics shall be entitled to respond to and provide all relevant information in respect of requests or orders issued by such supervisory authority.
The indemnities contained within this clause are in addition to any indemnities within the School Terms and Conditions and Standard Terms and Conditions.
Fun Phonics shall not be liable for or responsible for any breach of this Data Processing Agreement that arise out of or in connection with the acts or omissions of the Customer.
The Customer shall indemnify Fun Phonics at all times against all claims, demands, costs (including legal costs on a full indemnity basis), damages, expenses, losses, fines and liabilities incurred by Fun Phonics arising out of or in connection with:
1. any breach by the Customer of this Data Processing Agreement;
2. any act or omission of processing by the Customer, its affiliates or third party suppliers which infringes the GDPR; and
3. the provision of unlawful or inadequate instructions by the Customer in relation to the Pupil Data.