---
title: Platform Terms and Conditions
description: The Top Marks platform terms and conditions governing use of the service by schools, including our service level agreement and data processing agreement.
---
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# Platform Terms and Conditions
*Version 2.0 | Effective: 15 September 2026 | Published at: topmarks.ai/terms*
These Terms and Conditions govern the Customer's use of the Top Marks Platform and the services provided by Top Marks. By executing a Contract that incorporates these Terms and Conditions, the Customer agrees to be bound by them. The individual signing a Contract on behalf of a school, trust or other legal entity confirms that they have authority to bind that entity. The Agreement takes effect on the Effective Date of the relevant Contract. Customer and Top Marks agree as follows:
**1. Definitions and Interpretation**
**1.1** In this Agreement, the following definitions apply. Additional terms may be defined elsewhere in this Agreement.
| "Affiliate" | means, in respect of a party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party from time to time (subsidiary and holding company having the meaning given in section 1159 of the Companies Act 2006); |
| --- | --- |
| "Agreement" | means these Terms and Conditions, including the Schedules and Annexes to them, the SLA, and each Contract agreed between the parties; |
| "Applicable Law" | means any (a) legislation (including statute, statutory instrument, treaty, regulation, order, rules, directive, by-law, decree), common law and regulatory requirements; and (b) mandatory directions, codes, guidelines, and requirements of any regulator having legal effect; |
| "Authorised Users" | means the individuals employed or engaged by Customer whom Customer nominates as authorised to use the Platform; |
| "Business Day" | means any day other than a Saturday, Sunday or public holiday in England and Wales, and has a duration of 8 Business Hours; |
| "Business Hours" | means the hours between 09:00 and 17:00 on a Business Day. A period expressed in Business Hours is calculated by counting only time falling within Business Hours; |
| "Confidential Information" | means information that is proprietary or confidential and is either clearly labelled as such or given its nature or circumstances of disclosure ought reasonably to be considered confidential, including any documentation relating to the Platform; |
| "Contract" | means a Subscription Contract or a Trial Agreement; |
| "Customer Data" | means Student Data, data relating to Authorised Users, and any other data that Customer or its Authorised Users upload to the Platform; |
| "Customer" | means the entity identified as the 'Customer' in a Contract; |
| "Customer Branding" | means any Customer trademarks, trade names, service marks, trade dress and logos, and identifying slogans and symbols, in each case whether or not registered; |
| "Data Protection Legislation" | has the meaning given to it in paragraph 1 of Schedule 1; |
| "Deprioritisation" | has the meaning given to it in clause 6.9; |
| "Effective Date" | means the date set out as the 'Effective Date' in the Contract; |
| "Fair Usage Policy" | means the fair usage policy set out in clauses 6.7 to 6.12, describing the measures Top Marks may apply where Customer's usage of the Platform exceeds a Usage Threshold; |
| "Fees" | means the fees payable by Customer to Top Marks under this Agreement, as set out in a Contract; |
| "Hard Speed Cap" | means a technical restriction applied by Top Marks to the rate or volume of marking requests processed for Customer, resulting in slower processing of Customer's marking requests than would otherwise apply; |
| "Intellectual Property Rights" | means patents, trademarks, service marks, trade names, design rights, copyright, database rights, trade secrets, rights in know-how and other intellectual property rights or equivalent forms of protection of whatever nature arising anywhere in the world, whether registered or unregistered and including applications for the grant of any such rights, including moral rights; |
| "Licence Period" | means the period of the licence to use the Platform set out in a Contract; |
| "Onboarding Services" | means the initial account configuration, integration set-up and training that Top Marks provides to make the Platform available to Customer at the start of the Licence Period; |
| "Output" | means the transcriptions, grades, feedback and other results generated by the Platform from Customer Data; |
| "Peak Times" | means the periods of highest demand on the Platform across Top Marks' customer base generally, as determined by Top Marks from time to time; |
| "Platform" | means Top Marks' proprietary hosted automated marking software platform, as further described in the Contract; |
| "Privacy Policy" | means Top Marks' privacy policy published at topmarks.ai/privacy, as updated from time to time, describing how Top Marks collects, uses, discloses and protects personal data; |
| "SLA" | means the Service Level Agreement published at topmarks.ai/sla, as updated by Top Marks from time to time in accordance with clause 1.3, describing Platform availability, Support Services and incident response targets; |
| "Student Data" | means the part of the Customer Data that relates to Students, including their names, identifiers, class and cohort information, assessment responses, results and feedback; |
| "Students" | means the students of the Customer's school, academy, multi-academy trust or other educational institution; |
| "Subject Package" | means the subjects and qualification levels for which the Platform is licensed, as set out in the Contract; |
| "Subscription Contract" | means a contract in Top Marks' standard subscription form, executed by the parties, under which Customer licenses the Platform for a Licence Period; |
| "Supported Hours" | means the hours between 06:00 and 22:00 on any day of the week, including weekends and public holidays. A period expressed in Supported Hours is calculated by counting only time falling within Supported Hours; |
| "Support Services" | means the support services described in the SLA; |
| "Top Marks" | means Top Marks AI Ltd, a private limited company registered in England and Wales with registered number 11580241 whose registered office is at Harben House, Harben Parade, Finchley Road, London, NW3 6LH; |
| "Trial Agreement" | means a contract in Top Marks' standard trial form, executed by the parties, under which Customer is granted time-limited trial access to the Platform; |
| "Usage Threshold" | means the volume of marking requests, measured over such period as Top Marks may specify, above which Deprioritisation or a Hard Speed Cap may apply, as published or notified by Top Marks from time to time in accordance with clause 6.8. |
**1.2** In the event, and only to the extent, of any conflict between the documents forming the Agreement, the following order of precedence applies:
(a) first, subject to the provisos at the end of this clause 1.2, the Special Terms of a Subscription Contract or the substantive clauses of a Trial Agreement, in each case in respect of that Contract only;
(b) second, Schedule 1 (Data Processing Agreement) and its Annexes, in respect of any matter relating to the processing of Personal Data;
(c) third, the commercial terms set out in the Contract Details table of the Contract (the Fees, Licence Period, billing arrangements and licensed scope), subject to the second proviso at the end of this clause 1.2;
(d) fourth, the clauses of these Terms and Conditions;
(e) fifth, the SLA;
(f) sixth, the other Schedules to this Agreement; and
(g) seventh, the remaining terms of the Contract.
Provided that Schedule 1 (Data Processing Agreement) and its Annexes prevail over the terms ranked first in this clause 1.2 unless the relevant Contract expressly identifies the paragraph of Schedule 1 or its Annexes that is varied and is signed by both parties as a variation to the Data Processing Agreement. This proviso is without prejudice to clause 1.3(c).
Provided further that the Fair Usage Policy (clauses 6.7 to 6.12) prevails over any description in a Contract of the volume, rate or extent of Customer's permitted usage of the Platform, including any description of such usage as unlimited, uncapped or unrestricted and any absence of a stated limit, wherever that description appears in the Contract. A Contract which describes Customer's usage as unlimited therefore grants unlimited usage subject to the Fair Usage Policy. This proviso does not apply where the Contract expressly identifies the Fair Usage Policy as varied or disapplied, specifies the arrangement that applies in its place, and is signed by both parties.
**1.3** The SLA is incorporated into this Agreement by reference. The Privacy Policy is not incorporated into this Agreement and does not form part of it; it is a notice describing how Top Marks collects, uses, discloses and protects personal data, and in the event of any inconsistency between the Privacy Policy and Schedule 1 in respect of Personal Data processed on Customer's behalf, Schedule 1 prevails. Top Marks may update the SLA and the Usage Thresholds from time to time to reflect changes in its services, technology or Applicable Law, and the then-current version published at topmarks.ai applies, provided that:
a) no update to the SLA shall extend the personal data breach notification, data subject request or data deletion timeframes set out in Schedule 1, or otherwise reduce Top Marks' obligations under Schedule 1;
b) Top Marks shall give Customer not less than 30 days' written notice of any update to the SLA that materially reduces the availability, support or incident response commitments applicable to Customer; and
c) Schedule 1, including its Annexes, may not be amended other than by written agreement between the parties, save that maintenance of the sub-processor list in accordance with paragraph 8 of Schedule 1 does not constitute an amendment.
**1.4** Each Contract incorporates the version of these Terms and Conditions, including Schedule 1 and its Annexes, published at topmarks.ai/terms on the Effective Date of that Contract, and that version continues to govern that Contract for its Licence Period notwithstanding any later update to the published version. Top Marks will make copies of superseded versions available upon request. A new or renewal Contract incorporates the version current at its own Effective Date.
**1.5** In this Agreement: clause, Schedule and paragraph headings do not affect interpretation; 'including' and similar expressions are illustrative and do not limit the words that precede them; references to a party include its successors and permitted assigns; and references to a statute include any amendment or re-enactment of it and any subordinate legislation made under it.
2\. Licences and Intellectual Property
**2.1** All Intellectual Property Rights in the Platform, and in any improvements, modifications or derivatives of it, whether made by or on behalf of Top Marks independently of the Agreement, pursuant to its terms or otherwise in the course of the Agreement, belong to and remain the property of Top Marks. Except as expressly set out in this Agreement, nothing in it conveys any right, title or interest in the Platform to Customer, and all such rights are reserved.
**2.2** If Customer makes suggestions or provides feedback to Top Marks regarding modifications, new features, improvements or enhancements of the Platform, the Intellectual Property Rights in those suggestions and that feedback belong to Top Marks, which may use them for any purpose in perpetuity.
**2.3** Subject to Customer paying the Fees and complying with this Agreement, Top Marks grants Customer, for the Licence Period, a limited, non-exclusive, non-transferable, non-sublicensable licence, revocable in accordance with clauses 6.3, 8.6 and 13, to allow Authorised Users to remotely access and use the Platform for Customer's internal assessment of its own Students, within the scope set out in the Contract and subject to the terms of this Agreement.
**2.4** Authorised User access and roles:
(a) Top Marks shall make the Platform available to each Authorised User nominated by Customer. The functionality available to an Authorised User is determined by the role assigned to them by Customer's administrator from the roles Top Marks makes available from time to time.
(b) The roles available as at the Effective Date are:
(i) User — upload of assessment materials, submission of marking requests, and access to review, amend, moderate and export Output in respect of assessments that Authorised User has uploaded or that have been shared with them by another Authorised User; and
(ii) Administrator — all functionality available to a User under paragraph (i), together with (A) invitation, management and removal of Authorised Users and assignment of their roles, (B) configuration of Customer's account settings, including authentication settings, and (C) access to marking results and feedback in respect of assessments uploaded by any Authorised User within Customer's account.
An Administrator's access under paragraph (ii)(C) is not limited to assessments that Administrator has uploaded or that have been shared with them.
(c) Customer is responsible for assigning and periodically reviewing roles. Each account is personal to the individual Authorised User, and credentials must not be shared.
**2.5** Top Marks shall, during the Licence Period, provide bug-fixes and minor updates to the Platform to Customer at no additional cost.
**2.6** Top Marks may, during the Licence Period, develop and offer to Customer new and enhanced versions of the Platform, with Fees to be agreed between the parties.
3\. Customer Obligations
**3.1** Except to the extent expressly agreed by the parties, or to the extent Applicable Law prohibits such a restriction, Customer shall not, and shall ensure that no Authorised User does:
a) copy, reproduce, modify, adapt, create derivative works of, publish, distribute, sell, provide access to or otherwise commercially exploit any part of the Platform;
b) frame or mirror any part of the Platform;
c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas or algorithms of any part of the Platform;
d) access or use the Platform to develop a competing product or service;
e) use the Platform, or permit any other person to use it, in any manner that breaches Applicable Law or infringes the rights of any third party;
f) upload, post or transmit through the Platform any material that is unlawful, defamatory, obscene, harassing or otherwise harmful, or that contains malicious code;
g) obscure, remove or delete any copyright or other proprietary notices from the Platform or Output;
h) use the Platform for any purpose reasonably likely to bring Top Marks into disrepute;
i) interfere or attempt to interfere with the integrity or security of the Platform; or
j) attempt to gain access to data of any other customer of Top Marks held on the Platform.
**3.2** Customer shall:
a) not upload to the Platform confidential data belonging to a third party without that third party's consent;
b) not sell, rent, lease, sublicense, lend or otherwise make the Platform available to any person other than its Authorised Users;
c) provide such materials and information as Top Marks reasonably requests in order to provide the Platform, the Onboarding Services and the Support Services, and ensure that they are complete and accurate in all material respects;
d) ensure that all Authorised Users are aware of, and comply with, Customer's obligations under this Agreement when using the Platform; and
e) be responsible for the acts and omissions of Authorised Users in their use of the Platform as if they were Customer's own, so that any act or omission which would have been a breach of the Agreement had it been Customer's is treated as a breach by Customer.
**3.3** Use of Output:
(a) Output is generated by automated means and is intended to support, not replace, the professional judgement of Customer's teaching staff. Customer shall ensure that Output is reviewed by a suitably qualified member of its teaching staff before any grade or feedback is released to a Student or used for any summative or reporting purpose.
(b) Customer is solely responsible for its use of Output and for any decision made in reliance on it, and confirms that it has made its own independent assessment of whether any such decision is appropriate.
4\. Data Protection
**4.1** The parties agree that the provisions of Schedule 1 (Data Processing Agreement) shall apply.
**4.2** Where Top Marks processes personal data as a controller in its own right (for example, website analytics and business contact data), it does so in accordance with the Data Protection Legislation. That processing is described in the Privacy Policy.
5\. Customer Data and Licences to Top Marks
**5.1** As between the parties, all Intellectual Property Rights in the Customer Data and the Output belong to Customer. Customer grants Top Marks a non-exclusive licence, for the term of the Agreement, to use the Customer Data, Customer's Confidential Information and the Output to the extent necessary to provide the Platform, the Onboarding Services and the Support Services and otherwise to perform its obligations under the Agreement. Customer acknowledges that Top Marks and its other customers may use public domain information, general knowledge, industry-standard approaches and ordinary skills to develop information that is similar to Customer's Confidential Information or Output, and Top Marks has no liability to Customer in that respect provided that it complies with clause 10.
**5.2** Top Marks may analyse Output and data relating to Customer's use of the Platform, manually or by automated means, in order to maintain, secure, optimise, correct and improve the performance of the Platform for the benefit of its customers as a whole, provided that Personal Data is used for that purpose only in anonymised or aggregated form, save where access to identifiable data is necessary for support or troubleshooting in accordance with paragraph 3.2(d) of Annex A to Schedule 1. Top Marks shall not use Customer Data, including Student Data, to train or fine-tune any AI model, or otherwise for the improvement of AI models, without Customer's prior written permission.
**5.3** For the term of the Agreement, Customer grants Top Marks a non-exclusive, non-transferable, non-sublicensable licence to use the Customer Branding
(a) as necessary to provide the Platform, for example on Customer's account and on reports generated for Customer, and
(b) to identify Customer as a customer in Top Marks' promotional materials, including its website and brochures. Top Marks shall not name Customer or use the Customer Branding in any case study, testimonial or press release without Customer's prior written consent.
Customer may withdraw the licence in (b) on written notice, and Top Marks shall cease the relevant use within thirty (30) days.
6\. Provision of the Platform
**6.1** Top Marks agrees that the Platform will comply with the description of the Platform set out in the Contract. If the Platform does not conform with that description, Top Marks will, at its expense, use commercially reasonable efforts to correct the non-conformance with reasonable promptness. Such correction constitutes Customer's sole and exclusive remedy for any breach of this clause 6.1.
**6.2** Top Marks will use commercially reasonable efforts to ensure the Platform is available during the Licence Period, but Top Marks does not warrant or represent that access to the Platform will be uninterrupted or error-free.
**6.3** Top Marks may immediately suspend Customer's or any Authorised User's access to the Platform if Top Marks reasonably determines that:
a) Customer is in breach of the terms of the Agreement and such breach has had (or is reasonably likely to have) a material adverse impact on:
(i) the performance or security of Top Marks' IT systems;
(ii) the security of Top Marks' other customers and their data; or
(iii) Top Marks' Intellectual Property Rights.
**6.4** Top Marks shall notify Customer of any suspension under clause 6.3, and the suspension shall continue only until the factors giving rise to it have been remedied to Top Marks' reasonable satisfaction. Suspension shall not place Top Marks in breach of its obligations to provide the Platform in accordance with the Agreement and shall not relieve Customer from paying the Fees. Top Marks shall use reasonable efforts to provide Customer with such information as it is aware of to expedite the remedy of those factors.
**6.5** Top Marks does not warrant or represent that the Platform will be compatible or interoperable with any software, hardware or service other than as expressly set out in the Contract.
**6.6** Top Marks shall provide the Support Services and use reasonable efforts to meet the availability, response and resolution targets described in the SLA, subject to the exclusions in the SLA. Personal data breach notification timeframes are set out in paragraph 4(b) of Schedule 1 and are not affected by the SLA.
**6.7** Where a Contract describes Customer's usage of the Platform as unlimited, that usage remains subject to this Fair Usage Policy, which prevails over any such description in accordance with clause 1.2. Top Marks operates the Fair Usage Policy to maintain consistent performance of the Platform for the benefit of its customers as a whole, having regard to the shared and finite nature of the computing and AI processing resources on which the Platform depends.
**6.8** Top Marks will publish the Usage Thresholds at topmarks.ai/fairusage, or notify Customer of the applicable Usage Thresholds by other reasonable means, and may update them from time to time in accordance with clause 1.3. Usage Thresholds may differ according to the Subject Package, Licence Period or other factors specified in the Contract. No Deprioritisation or Hard Speed Cap will be applied to Customer before a Usage Threshold applicable to Customer has been published or notified to it.
**6.9** Where Customer's usage of the Platform in any measurement period exceeds the applicable Usage Threshold, Top Marks may deprioritise the processing of Customer's marking requests during Peak Times ("Deprioritisation"), such that those requests are processed after the requests of customers who have not exceeded their Usage Threshold. Deprioritisation may result in longer turnaround times for marking requests submitted during Peak Times, but does not affect Customer's ability to submit marking requests or access the Platform.
**6.10** Where Customer's usage of the Platform substantially and repeatedly exceeds the applicable Usage Threshold, Top Marks may, in addition to or instead of Deprioritisation, apply a Hard Speed Cap to Customer's account. A Hard Speed Cap will not prevent Customer from submitting or accessing marking requests, but will result in those requests being processed more slowly than the Platform's standard processing times.
**6.11** Top Marks will use reasonable efforts to notify Customer where its usage is approaching or has exceeded a Usage Threshold before applying Deprioritisation or a Hard Speed Cap, save where doing so is not reasonably practicable due to a genuine and immediate capacity constraint affecting the Platform generally. Where Customer's usage requirements exceed the Usage Thresholds on an ongoing basis, Top Marks may, at its discretion, offer Customer an alternative arrangement on additional terms.
**6.12** Longer processing or turnaround times resulting from Deprioritisation or a Hard Speed Cap applied in accordance with this Fair Usage Policy do not constitute a failure to meet, and are excluded from the calculation of, the availability targets, response times or resolution times set out in the SLA.
7\. Onboarding and Support Services
**7.1** Top Marks shall provide the Onboarding Services and the Support Services with reasonable care and skill. The Support Services are described in the SLA. The Onboarding Services and the Support Services are included in the Fees unless the Contract states otherwise.
**7.2** Customer shall cooperate with Top Marks in relation to the Onboarding Services and the Support Services, nominate a primary contact for that purpose in the Contract, and provide in a timely manner the information, materials and access that Top Marks reasonably requires, ensuring that they are accurate and complete.
**7.3** Information, guidance and training provided by Top Marks relate to the operation of the Platform only. They do not constitute advice or a recommendation on assessment, grading or any other educational or professional matter, and Customer does not rely on them as such.
**7.4** Any services beyond the Onboarding Services and the Support Services shall be provided only if agreed in writing in a Contract or in Special Terms, including as to their scope and Fees.
8\. Fees
**8.1** Customer shall pay the Fees for the Platform and any agreed additional services as set out in the Contract.
**8.2** The invoicing frequency and billing arrangements are set out in each Contract.
**8.3** Customer shall pay each invoice in full, in pounds sterling unless otherwise agreed, within 30 days of the date of the invoice.
**8.4** All amounts due under the Agreement shall be paid by Customer to Top Marks in full without any set-off, counterclaim, deduction or withholding. To the extent amounts are subject to withholding tax as required by law, Customer will reimburse Top Marks in full for any such withheld amounts, and Top Marks shall provide Customer with reasonable assistance to recover the same.
**8.5** The Fees are exclusive of VAT and any other applicable taxes, which shall be payable by Customer in addition to the Fees.
**8.6** If Customer fails to make any payment due to Top Marks under the Agreement by the due date for payment, then, without limiting Top Marks' other remedies under this Agreement:
a) Customer shall pay interest on the overdue amount at the rate of 1.5% per month;
b) such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and Customer shall pay the interest together with the overdue amount; and
c) if any amount remains unpaid 30 days after its due date, Top Marks may, on written notice, suspend Customer's and its Authorised Users' access to the Platform and the provision of the Support Services until all overdue amounts and interest have been paid. Suspension does not relieve Customer of its obligation to pay the Fees and is subject to clause 13.4(e).
9\. Warranties and Representations
**9.1** Each party represents and warrants to the other party that:
a) it has obtained and shall continue to maintain in effect all rights, licences, approvals, consents, and authorisations to enter into, and comply with the terms of, the Agreement; and
b) without affecting its other obligations under the Agreement, it shall comply with all Applicable Law in the performance of its obligations under the Agreement.
**9.2** All warranties, conditions and other terms implied by statute or common law are excluded from the Agreement to the fullest extent permitted by Applicable Law. Except as expressly set out in clauses 6.1 and 9.1, Top Marks gives no warranty in relation to the Platform, the Output, the Onboarding Services or the Support Services, whether express or implied, including any implied warranty of satisfactory quality, fitness for a particular purpose, title or non-infringement, or that the Platform, the Output or those services will be error-free, accurate or complete. Top Marks does not guarantee or warrant any cost savings or efficiencies to be obtained from the Platform or the Output.
10\. Confidentiality
**10.1** Each party may have access to Confidential Information of the other party under the Agreement. A party's Confidential Information shall not include information that:
a) is or becomes publicly known through no act or omission of the receiving party;
b) was in the receiving party's lawful possession prior to the disclosure;
c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
e) is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.
**10.2** Each party shall hold the other party's Confidential Information in confidence and, unless required by law, not make the other party's Confidential Information available to any third party or use the other party's Confidential Information for any purpose other than as permitted by the Agreement.
**10.3** Each party agrees to take all reasonable steps to ensure that the other party's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. Each party agrees to protect the Confidential Information of the other party as it would protect its own Confidential Information of a similar nature, and in no event with less than reasonable care.
**10.4** Except as otherwise expressly provided in this Agreement, each party will return to the other party, or destroy or erase, Confidential Information of the other party in its possession upon the termination of this Agreement; provided that:
(i) each party may retain a copy of Confidential Information solely for the purposes of tracking the other party's rights and obligations hereunder with respect thereto;
(ii) each Party may retain copies of Confidential Information solely to the extent required by law or by applicable professional standards which require such party to retain copies of its working papers; and
(iii) each party may retain Confidential Information solely to the extent reasonably necessary for each party to exercise rights or perform obligations under this Agreement that survive such termination.
Notwithstanding limbs (i) to (iii) above, neither party shall retain Personal Data processed under Schedule 1 by reference to this clause 10.4, and such Personal Data shall be returned or deleted in accordance with paragraph 11 of Schedule 1.
**10.5** This clause 10 shall survive termination of the Agreement for any reason.
11\. Limitation of Liability
**11.1** Nothing in the Agreement excludes or limits the liability of:
a) either party for fraud or fraudulent misrepresentation, or in respect of any other liability which cannot by law be limited or excluded; or
b) Customer for any breach of clause 3 or clause 8.
**11.2** Subject to clause 11.1, neither party shall be liable to the other party, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of business, profits, revenue, anticipated savings or goodwill, for any compensatory or restitutionary payments to a third party (other than in respect of third-party claims under clause 12), or for any indirect, consequential or special loss or damage, in each case arising out of or in connection with the Platform, the Onboarding Services, the Support Services or this Agreement, whether or not the possibility of such loss was known or foreseeable. Loss of or corruption of Customer Data is excluded under this clause 11.2 except to the extent caused by Top Marks' breach of Schedule 1 or clause 10, in which case Top Marks' liability is subject to clause 11.3.
**11.3** Subject to clause 11.1, clause 11.2, and clause 11.4, each party's total aggregate liability to the other party under or in connection with the Agreement whether under contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the greater of
a) the Fees paid or payable by Customer to Top Marks under the Contract to which the liability relates in the 12 months preceding the event giving rise to the liability, or
b) £1,000. If no Contract is then in effect, or if the liability relates to more than one Contract, the Fees referred to in paragraph (a) are those under the most recent Contract executed between the parties.
For the avoidance of doubt, the limitation in this clause 11.3 applies to liability arising under Schedule 1, including paragraph 9(b).
**11.4** Subject to clause 11.1, the parties agree that the limitation described in clause 11.3 shall not apply to:
a) Customer's obligation to pay all amounts due hereunder;
b) Top Marks's indemnification obligations in clause 12 (Indemnity); or
c) either party's violation of the other party's Intellectual Property Rights.
In respect of a breach of clause 10 (Confidentiality), each party's total aggregate liability shall instead not exceed twice the amount calculated under clause 11.3.
**11.5** Customer assumes sole responsibility for the Output and for any interpretation, decision or conclusion drawn from it, as set out in clause 3.3, and Top Marks shall have no liability to Customer, Authorised Users or Students for Customer's use of the Output or of the results of the Platform or the Support Services.
**11.6** The parties agree that the foregoing limitations on each party's liability form the basis of the bargain in relation to this Agreement, are necessary for Top Marks to provide the Platform and the Onboarding Services and Support Services and to enter into this Agreement, and that without such limitations the parties would not enter into this Agreement.
12\. Indemnity
**12.1** Top Marks shall defend Customer, its officers, directors and employees against any claim brought by a third party against Customer to the extent that the claim alleges that the Platform infringes, misappropriates or otherwise violates any patent effective as of the Effective Date, copyright or trademark of that third party, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:
a) Top Marks is given prompt notice of any such claim;
b) Customer provides reasonable cooperation to Top Marks in the defence and settlement of such claim, at Top Marks's expense; and
c) Top Marks is given sole authority to defend or settle the claim.
**12.2** In no event shall Top Marks, its employees, agents, and subcontractors be liable to Customer to the extent that the alleged infringement is based on:
(i) a modification, alteration, or conversion of the Platform by anyone other than Top Marks;
(ii) Customer's use of the Platform in a manner contrary to the instructions given to Customer by Top Marks or this Agreement;
(iii) Customer's use of the Platform after notice of the alleged or actual infringement from Top Marks or any appropriate authority; or
(iv) use of the Platform in combination with any technology not reasonably necessary for the operation of the Platform, if a claim would not have otherwise been made.
13\. Term and Termination
**13.1** The Licence Period commences on the Effective Date and, unless terminated earlier in accordance with this Agreement or the Contract, continues for the period specified in the Contract. The Agreement does not renew automatically; continued use of the Platform after the Licence Period requires a new Contract.
**13.2** Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
a) the other party commits any material breach of this Agreement that is not remedied within 30 days from receipt of a written notice from the innocent party specifying the material breach in reasonable detail; or
b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
f) the other party ceases, or threatens to cease, to trade; or
g) the other party takes or suffers any similar or analogous action as (b)-(e) in any jurisdiction in consequence of debt.
**13.3** Without prejudice to any other rights or remedies to which Top Marks may be entitled, Top Marks may terminate this Agreement with immediate effect by giving written notice to Customer if:
a) Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
b) Customer breaches clause 3.
**13.4** On termination of this Agreement for any reason:
a) except as otherwise set out in the Agreement, each party shall return or destroy, and make no further use of, the other party's Confidential Information, documentation and other materials (and all copies of them), subject to clause 10.4;
b) Customer will not have the right to use or access the Platform;
c) Top Marks shall return or delete Personal Data processed on Customer's behalf in accordance with, and within the timeframes set out in, paragraph 11 of Schedule 1, which shall govern in the event of any inconsistency with this clause 13.4;
d) Customer shall immediately pay all Fees incurred prior to the date of termination;
e) Customer shall have 60 days from the date of termination, or from the suspension of access under clause 8.6(c), to export all Customer Data and Output from the Platform. Top Marks shall maintain such access for that period notwithstanding clause 13.4(b) and notwithstanding any suspension of access under clause 6.3 or clause 8.6(c), save that Top Marks may restrict such access to the functionality reasonably necessary to export Customer Data and Output. Deletion under clause 13.4(c) shall not commence before the expiry of that period, save where Customer has elected earlier deletion under paragraph 11(a) of Schedule 1; and
f) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14\. Force Majeure
**14.1** Notwithstanding any other provision of the Agreement, neither party shall have any liability to the other party for the performance of its obligations under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement due to the existence of an event or series of events beyond such party's reasonable control, such as acts of God, natural disasters, strike, war, terrorism, pandemic, unavailability of telecommunications systems generally not due to a party's failure to pay for or procure such services, or similar events (in each case a "Force Majeure Event").
**14.2** As soon as reasonably practicable after becoming aware of a Force Majeure Event, the party affected by the Force Majeure Event shall notify the other party, providing reasonable details of the Force Majeure Event, its impact on that party's obligations under the Agreement and its anticipated duration. If the period of delay or non-performance continues for six consecutive months or longer, the party not affected may terminate the Agreement by giving 30 days' written notice to the other party.
**14.3** Nothing in this clause 14 shall relieve Customer from its obligations to pay the Fees as described in the Agreement.
15\. Compliance
**15.1** Each party shall comply with all Applicable Law relating to anti-bribery, anti-corruption and modern slavery, including the Bribery Act 2010 and the Modern Slavery Act 2015 (the "Relevant Requirements"), shall maintain throughout the Licence Period its own policies and procedures adequate to ensure compliance with the Relevant Requirements, and shall not do or omit to do anything which would cause the other party to breach them.
**15.2** Each party shall ensure that any person performing activities in connection with the Agreement on its behalf complies with terms equivalent to this clause 15, and shall be liable to the other party for any breach of those terms by such person.
16\. Assignment
**16.1** Except as set forth in clause 16.2, neither party shall, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under the Agreement.
**16.2** Top Marks shall have the right to subcontract the exercise of its rights and performance of its obligations under the Agreement to third parties, provided that nothing in this clause 16.2 permits Top Marks to engage any sub-processor to process Personal Data otherwise than in accordance with paragraph 8 of Schedule 1.
**16.3** Top Marks shall have the right to assign, novate, or otherwise transfer any of its rights and obligations under the Agreement to:
a) an Affiliate, as part of a bona fide reconstruction, reorganisation, or amalgamation; or
b) any person as part of a sale of its business or a substantial part thereof.
**16.4** Any attempted assignment in violation of this clause 16 is void and of no force or effect.
17\. No Partnership or Agency
**17.1** Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18\. Third Party Rights
**18.1** The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999, save as expressly provided in Schedule 1 and any transfer mechanism entered into under it.
19\. Entire Agreement
**19.1** The Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter.
**19.2** Each party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) ("Representation") other than as expressly set out in the Agreement.
**19.3** Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
20\. Notices
**20.1** Subject to clause 20.2, any notice required to be given under the Agreement shall be in writing and shall be delivered by hand, sent by pre-paid first-class post or recorded delivery post, or sent by email, to the other party at the address set out in the Contract (in the case of Top Marks, its registered office or info@topmarks.ai) or such other address as that party may notify for the purpose.
**20.2** A notice delivered by hand shall be deemed to have been received when delivered (or, if delivery is not during Business Hours, at 09:00 London time on the next Business Day). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email pursuant to clause 20.1 shall be deemed to have been received at the time the email enters the information system of the intended recipient, provided that no error message indicating failure to deliver has been received by the sender.
21\. General
**21.1** If any provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable, and the validity and enforceability of the remaining provisions shall not be affected.
**21.2** No failure or delay by a party in exercising any right or remedy under the Agreement shall constitute a waiver of that right or remedy, and no single or partial exercise of any right or remedy shall prevent any further exercise of it.
**21.3** No variation of the Agreement shall be effective unless it is in writing and signed by or on behalf of both parties, save for updates permitted by clause 1.3.
**21.4** A Contract may be executed in counterparts and by electronic signature, each of which is an original and all of which together constitute one instrument.
22\. Governing Law and Jurisdiction
**22.1** The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are exclusively governed by, and construed in accordance with, the law of England.
**22.2** The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
---
**Schedule 1 — Data Processing Agreement**
### Nature of this Schedule
This Schedule 1 constitutes the written agreement between the Customer (as controller) and Top Marks (as processor) required by Article 28(3) of the UK GDPR and, where applicable, Article 28(3) of the EU GDPR, governing Top Marks' processing of Personal Data on behalf of the Customer in connection with the provision of the Platform, the Onboarding Services and the Support Services under the Agreement. The processing particulars required by Article 28(3) are set out in Annex A to this Schedule 1, which forms an integral part of this Schedule 1 and of the Agreement.
### 1. Definitions
In this Schedule:
"Data Protection Legislation" means:
(a) the Data Protection Act 2018 ("DPA 2018");
(b) the UK General Data Protection Regulation, being Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419) ("UK GDPR");
(c) where applicable, the EU General Data Protection Regulation, being Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("EU GDPR"), to the extent that it applies directly to the processing activities carried out under this Agreement;
(d) the Data (Use and Access) Act 2025, to the extent in force, including the amendments it makes to the legislation referred to in paragraphs (a) and (b);
(e) any national implementing legislation, regulations, or secondary legislation made under or in connection with any of the foregoing, as amended or updated from time to time; and
(f) any successor legislation to the UK GDPR, the EU GDPR, or the DPA 2018;
and references to "Personal Data", "process(ing)", "data subject", "controller", "processor", and "personal data breach" shall have the meanings given to them in the Data Protection Legislation. Where the UK GDPR and the EU GDPR both apply and their requirements differ, the stricter requirement shall prevail.
### 2. Roles, instructions and security
Where Top Marks processes Personal Data under this Agreement, the parties agree that:
a) Customer is the controller and Top Marks is the processor;
b) Top Marks shall process Personal Data only on the documented instructions of the Customer, which are set out in this Schedule 1, Annex A and the Agreement, and only to the extent and in such a manner as is necessary to perform its obligations under the Agreement, unless Top Marks is required to process it otherwise by Applicable Law, in which case Top Marks shall inform the Customer of that legal requirement before processing (unless prohibited from doing so by Applicable Law on important grounds of public interest);
c) Top Marks shall inform the Customer immediately if, in its opinion, an instruction from the Customer infringes the Data Protection Legislation;
d) Top Marks shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks presented by the processing of the Personal Data, including against the risk of accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data. Such measures may include measures designed to:
(i) ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; and
(ii) restore the availability of and access to Personal Data in a timely manner in the event of a physical or technical incident.
### 3. Personnel
Top Marks shall ensure that access to the Personal Data is limited to those personnel of Top Marks and its sub-processors:
a) who are subject to confidentiality commitments in respect of the Personal Data; and
b) whose access to or processing of the Personal Data is required in order to provide the Platform, the Onboarding Services or the Support Services to the Customer in accordance with the Agreement, and the Personal Data shall not be further disclosed except as necessary to comply with Applicable Law or a valid and binding order of a governmental body.
### 4. Data subject requests and personal data breaches
Top Marks shall notify the Customer without undue delay on:
a) receiving any query or request from a data subject (including those relating to rights of access, rectification, erasure, portability, and the right to restrict or object to processing), or from a regulator or supervisory authority, in relation to any Personal Data processed on the Customer's behalf. Top Marks shall not respond substantively to any such request, and shall not rectify, erase, restrict or transfer Personal Data in response to it, except on the Customer's documented instruction or as required by Applicable Law. Top Marks shall provide reasonable assistance to enable the Customer to respond within the time limits imposed by the Data Protection Legislation, including by locating and providing copies of the relevant Personal Data. Where a request is received directly by Top Marks, Top Marks shall notify the Customer without undue delay and in any event within 2 Business Days of receipt, and shall acknowledge receipt to the requester and confirm that the request has been referred to the Customer as controller. Where the Customer instructs Top Marks to give effect to a request, Top Marks shall do so within 10 Business Days of receiving the Customer's documented instruction, or sooner where the Customer notifies Top Marks that a shorter period is necessary to meet its own statutory deadline; and
b) becoming aware of any personal data breach affecting Personal Data processed on the Customer's behalf, in which case Top Marks shall notify the Customer without undue delay and in any event within 48 hours of becoming aware. Such notification shall describe the nature of the breach, the categories and approximate number of data subjects and records concerned, the likely consequences, and the measures taken or proposed to address it. Where and to the extent that it is not possible to provide all of that information at the same time, Top Marks shall provide it in phases without further undue delay. Top Marks shall also provide reasonable assistance in relation to the Customer's obligations to notify regulators, supervisory authorities and data subjects.
### 5. Data protection impact assessments
Top Marks shall provide reasonable assistance to the Customer with data protection impact assessments, and with any related prior consultation with the Information Commissioner's Office or other supervisory authority, taking into account the nature of the processing and the information available to Top Marks. Top Marks' DPIA Support Pack is provided free of charge for this purpose. Where the Customer requests assistance that goes materially beyond the DPIA Support Pack and the information described in paragraph 6, Top Marks may charge its reasonable costs, agreed with the Customer in advance.
### 6. Assistance with security of processing
Top Marks shall provide reasonable assistance to the Customer in ensuring compliance with the Customer's obligations under Article 32 of the Data Protection Legislation (security of processing), taking into account the nature of the processing and the information available to Top Marks. Such assistance may include:
(a) providing the Customer, on written request, with information about the technical and organisational security measures implemented by Top Marks in connection with the processing of Personal Data under this Agreement, including details of encryption standards, access controls, authentication requirements and data segregation arrangements;
(b) notifying the Customer promptly of any material change to Top Marks' technical and organisational security measures which may reduce the level of protection afforded to the Personal Data;
(c) cooperating with reasonable security assessments or reviews conducted by or on behalf of the Customer, subject to the audit rights and limitations set out in paragraph 10; and
(d) providing such information as the Customer may reasonably require to enable the Customer to assess the risks associated with the processing and to implement appropriate complementary security measures on its own systems.
The scope of assistance provided under this paragraph 6 is limited to information and activities within Top Marks' reasonable knowledge and control, and is subject to the Customer reimbursing Top Marks' reasonable charges where the assistance requested goes materially beyond that which would ordinarily be required in the course of Top Marks' obligations under this Agreement.
### 7. International transfers
Top Marks shall not transfer Personal Data to any country outside the United Kingdom or the European Economic Area, whether to a sub-processor or otherwise, unless:
(a) the destination country is the subject of regulations under section 17A of the Data Protection Act 2018 or an adequacy decision of the European Commission, as applicable to the transfer in question; or
(b) the transfer is subject to appropriate safeguards as required by the Data Protection Legislation, including the UK International Data Transfer Agreement or Addendum (for transfers from the UK) or the approved EU Standard Contractual Clauses (for transfers from the EEA), such that data subjects have enforceable rights and effective legal remedies.
### 8. Sub-processors
The Customer gives Top Marks general written authorisation, for the purposes of Article 28(2) of the Data Protection Legislation, to engage the sub-processors listed at topmarks.ai/subprocessors to process Personal Data on Top Marks' behalf in connection with the Platform, the Onboarding Services and the Support Services.
Top Marks may engage a new sub-processor to process Personal Data, or materially change the role of an existing sub-processor, provided that Top Marks:
a) first gives the Customer not less than 30 days' written notice, identifying the sub-processor, its processing role, its location, and the reason for the change; and
b) maintains the list at topmarks.ai/subprocessors with version control and a change log, and notifies the Customer's data protection contact identified in the Contract (or, if none is identified, the Customer's Administrator) of each update.
The Customer may object to a proposed change on reasonable data protection grounds by giving written notice within 20 days of receiving notice under paragraph (a) above. The parties shall discuss the objection in good faith and Top Marks shall use reasonable endeavours to accommodate it, including by making the Platform available without the proposed sub-processor where technically feasible.
Where the objection cannot be resolved within 30 days and Top Marks proceeds with the change, the Customer may terminate the affected Contract by written notice, and Top Marks shall refund Fees paid in respect of the unexpired portion of the Licence Period. Top Marks shall not permit the proposed sub-processor to process Personal Data while an objection notified under this paragraph remains unresolved.
Where a change is required urgently to maintain the security or availability of the Platform, Top Marks may make the change with such shorter notice as is reasonably practicable and shall notify the Customer as soon as possible thereafter. The Customer's rights of objection and termination described above continue to apply.
### 9. Sub-processor contracts
Top Marks shall, before permitting any sub-processor to process Personal Data on its behalf:
(a) enter into a written contract with that sub-processor which imposes data protection obligations on that sub-processor that are equivalent in all material respects to those imposed on Top Marks under this Schedule 1, including in particular obligations relating to:
(i) processing Personal Data only on Top Marks' documented instructions;
(ii) implementing appropriate technical and organisational security measures in accordance with Article 32 of the Data Protection Legislation;
(iii) maintaining confidentiality of the Personal Data;
(iv) assisting with data subject rights requests and breach notification obligations; and
(v) deleting or returning Personal Data on termination; and
(b) subject to clause 11.3, remain fully liable to the Customer for the acts and omissions of each sub-processor to the same extent as if Top Marks had carried out the processing itself, where the sub-processor fails to fulfil its data protection obligations under that written contract.
Top Marks shall, on written request from the Customer, confirm that the relevant written contracts are in place, and shall make available to the Customer such information as is reasonably necessary to demonstrate that each sub-processor processing Personal Data is bound by obligations equivalent to those set out in this Schedule 1.
### 10. Audit
Top Marks shall make available to the Customer all information reasonably necessary to demonstrate compliance with this Schedule 1, and shall allow for and contribute to audits, including inspections, conducted by the Customer or an auditor mandated by the Customer, provided that:
(a) the Customer gives at least 30 days' written notice of an audit, save where an audit is required by a supervisory authority or follows a personal data breach affecting the Customer's Personal Data;
(b) audits take place no more than once in any 12-month period, during Business Hours, and are conducted so as to minimise disruption to Top Marks' business and without compromising the security of other customers' data;
(c) any auditor mandated by the Customer is bound by confidentiality obligations no less protective than clause 10 of these Terms and Conditions;
(d) each party bears its own costs of the audit; and
(e) any audit or inspection of the security measures or physical data centres of Top Marks' sub-processors is limited to Top Marks requesting and providing the audit reports or certifications produced by those sub-processors' independent third-party auditors.
### 11. Return and deletion of Personal Data
When Top Marks ceases to provide services relating to the processing of Personal Data pursuant to the Agreement (the date on which it does so, or the date of expiry or termination of the Agreement if earlier, being the "Termination Date"), Top Marks shall:
a) at the Customer's option (and provided that the Customer notifies Top Marks of such option within 60 days of the Termination Date), delete or return to the Customer, or return and then delete, all Personal Data in Top Marks' possession or control that relates to the Agreement, and Top Marks shall comply with any such request within 30 days of the applicable request. Personal Data returned under this paragraph 11(a) shall be provided in a commonly used, machine-readable format, and Top Marks shall confirm to the Customer in writing when the request has been given effect;
b) whether or not a request is made under paragraph 11(a), promptly and in any event by the later of (i) 90 days after the Termination Date and (ii), where the Customer has requested return under paragraph 11(a), 30 days after Top Marks has completed that return, delete all copies of the Personal Data in Top Marks' possession or control that relates to the Agreement. Limb (ii) extends the period in limb (i) only to the extent necessary to complete a return requested under paragraph 11(a), and in no event beyond 120 days after the Termination Date;
c) not commence deletion under paragraph 11(b) before expiry of the export period set out in clause 13.4(e) of these Terms and Conditions, save where the Customer has requested earlier deletion under paragraph 11(a);
d) hold any Personal Data which Top Marks is required by Applicable Law to retain notwithstanding paragraphs 11(a) and 11(b) in segregated form, process it for no purpose other than that required by Applicable Law, and delete it as soon as that requirement ceases to apply. Top Marks shall, on the Customer's written request, identify the categories of Personal Data retained under this paragraph 11(d) and the legal requirement relied upon; and
e) notwithstanding paragraphs 11(a) and 11(b), where Personal Data persists in encrypted backup media after deletion from Top Marks' live systems, Top Marks shall not be required to delete that Personal Data from such media otherwise than in accordance with its standard backup rotation cycle, provided that, for so long as such Personal Data persists, Top Marks shall:
(i) isolate it from all processing other than that necessary to maintain the integrity and availability of the backup media themselves;
(ii) maintain it in encrypted form and protect it against access, restoration to live systems, or disclosure; and
(iii) delete it on expiry of that rotation cycle.
Top Marks shall, on the Customer's written request, confirm the date by which Personal Data relating to the Agreement will have been deleted from all backup media.
### 12. Customer warranty
The Customer warrants that it has, and will maintain, one or more valid lawful bases under the Data Protection Legislation for the processing of the Personal Data by Top Marks and its sub-processors in accordance with the Agreement, so that such processing complies with the Data Protection Legislation, and that it has provided, or will provide, to data subjects (including Students and, where appropriate, their parents or guardians) all privacy information required by Articles 13 and 14 of the UK GDPR and, where applicable, the EU GDPR, including any consents required by Applicable Law where the Customer relies on consent.
---
**Annex A — Processing Particulars**
This Annex forms part of Schedule 1 and sets out the processing particulars required by Article 28(3) of the UK GDPR. Capitalised terms used in this Annex have the meanings given to them in the Agreement and in Schedule 1.
### 1. Subject Matter of Processing
The subject matter of the processing is the provision by Top Marks of an AI-assisted automated essay and examination marking, transcription and feedback platform (the "Platform") to the Customer, as further described in the Contract and in clause 6.1 of the Terms and Conditions.
### 2. Duration of Processing
Top Marks will process Personal Data for the duration of the Licence Period set out in the applicable Contract, and thereafter:
(a) for such period as is necessary to fulfil any deletion or return obligation under paragraph 11 of Schedule 1, in accordance with the timeframes set out in that paragraph; and
(b) for such further period as Top Marks is required by Applicable Law to retain any Personal Data, notwithstanding the termination or expiry of the Agreement.
### 3. Nature and Purpose of the Processing
**3.1 Nature of processing**
The processing activities carried out by Top Marks on behalf of the Customer include:
(a) collection of student and staff data, either uploaded directly by the Customer (including via CSV upload or manual entry) or retrieved from the Customer's Management Information System (MIS) via an API integration provided by Wonde Ltd, at the Customer's instruction and on the Customer's authorisation;
(b) collection and ingestion of assessment materials uploaded to the Platform by the Customer or its Authorised Users, including scanned handwritten scripts, word-processed documents, and plain text submissions;
(c) automated transcription of handwritten content by an optical character recognition (OCR) model operated by Top Marks on cloud infrastructure under its own control (Google Cloud Platform, London, United Kingdom), during which any incidental personal identifiers appearing in a script are processed only on that infrastructure;
(d) anonymisation of essay and assessment content, whereby student identity is separated from assessment content through an anonymising identification system and any incidental identifiers in the transcribed content are removed, in each case before any content is transmitted to a third-party AI model provider;
(e) automated marking and feedback generation, whereby anonymised assessment content is processed through third-party large language model providers, accessed via an AI gateway, to generate numeric grades and written feedback;
(f) quality control processing, including cross-checking of model outputs for consistency and accuracy and AI-generated text detection, in each case on anonymised content;
(g) grade standardisation, whereby raw numeric outputs are processed through proprietary algorithms on Top Marks' own servers to align with standardisation materials and correct for known LLM marking variations;
(h) generation of whole-class feedback and insights through aggregated processing of anonymised assessment content and individual feedback;
(i) storage of assessment materials, grades, feedback, and associated metadata within the Platform database;
(j) provision of access to marking results and feedback to Authorised Users via the Platform interface;
(k) processing of data subject rights requests and breach notifications in accordance with paragraphs 4 to 6 of Schedule 1; and
(l) secure deletion or return of Personal Data upon termination of the Agreement in accordance with paragraph 11 of Schedule 1.
**3.2 Purpose of processing**
Top Marks processes Personal Data solely for the following purposes:
(a) the primary purpose of providing automated marking, transcription, and feedback services to the Customer in accordance with the Agreement;
(b) enabling the Customer and its Authorised Users to access, review, and export marking results and feedback through the Platform;
(c) facilitating the Customer's compliance with its obligations as data controller, including in relation to data subject rights requests;
(d) carrying out support, troubleshooting, and maintenance activities strictly as required to maintain Platform availability and performance, limited to a small number of authorised Top Marks personnel (identified by role in the DPIA Support Pack) and only where necessary for that purpose; and
(e) complying with Applicable Law and the lawful and binding orders of governmental or regulatory bodies.
For the avoidance of doubt, Top Marks shall not process Personal Data for any other purpose, including for the training, fine-tuning, or improvement of AI models or the Platform, without the explicit prior written permission of the Customer in accordance with clause 5.2 of the Terms and Conditions.
### 4. Types of Personal Data Processed
Top Marks processes the following types of Personal Data on behalf of the Customer:
| Category | Personal Data |
| --- | --- |
| **4.1 Student Data** | (a) Full name and/or student identification number (as determined by the Customer's configuration); (b) Class, year group, or cohort information (where explicitly provided by the Customer); (c) Examination and essay responses, including handwritten responses converted to text through the transcription process; and (d) Assessment results and AI-generated feedback produced by the Platform. The data at (a) to (d) above may be provided directly by the Customer or retrieved via the MIS integration described in paragraph 3.1(a) of this Annex. |
| **4.2 Staff and Administrator Data** | (a) Full name; (b) Email address; (c) Institution name; (d) Account identifiers and login credentials (hashed); (e) Teacher-assessment associations (records linking uploaded assessments to individual teacher accounts); and (f) Support and other communications between the Customer's staff and Top Marks. |
| **4.3 Technical and Usage Data** | (a) IP addresses and device identifiers; (b) Browser type and operating system; (c) Platform usage data, including pages visited, features used, and time spent on the Platform; (d) Submission timestamps and upload metadata; and (e) Authentication and access logs. |
| **4.4 Metadata** | (a) Barcode/QR code identifiers used to link anonymised assessment content to student identity records held on Top Marks' servers; (b) Subject and course information as provided by the Customer during the upload process; and (c) Standardisation and marking scheme references associated with uploaded assessments. |
Top Marks does not require or deliberately collect special category personal data (as defined in Article 9 UK GDPR) or criminal convictions data (as defined in Article 10 UK GDPR) as part of its standard Services. Where the Customer believes that any assessment content may incidentally contain special category data, it should notify Top Marks prior to upload. Free-text responses may incidentally contain Article 9 data, which is processed only as part of the assessment content and is not used for profiling.
### 5. Categories of Data Subject
The Personal Data processed under this Agreement relates to the following categories of data subject:
(a) Students — pupils and students of the Customer's school, academy, or educational institution, who may include individuals under the age of 18 and, in some cases, individuals under the age of 13. The Customer's warranty as to lawful basis and privacy notices is set out in paragraph 12 of Schedule 1;
(b) Teaching Staff and Authorised Users — teachers, examiners, and other educational professionals employed or engaged by the Customer who upload assessment materials and access marking results through the Platform; and
(c) School Administrators — administrative staff of the Customer who hold accounts on the Platform for the purposes of user management and platform configuration.
### 6. Sub-Processors
The Customer's general written authorisation for Top Marks' use of the sub-processors listed at topmarks.ai/subprocessors, as updated in accordance with paragraph 8 of Schedule 1, is given in paragraph 8 of Schedule 1, and Top Marks' obligations in respect of sub-processor contracts and liability are set out in paragraph 9 of Schedule 1.
Providers that receive only anonymised assessment content, from which personal identifiers have been removed prior to transmission as described in paragraph 3.1(d) of this Annex (including third-party AI model providers, the AI gateway and AI-generated text detection tools), do not process Personal Data on the Customer's behalf. They are nevertheless listed at topmarks.ai/subprocessors for transparency.
### 7. International Transfers
All Personal Data processed under this Agreement is stored and processed within the United Kingdom and the European Economic Area, on the infrastructure identified in the sub-processor list at topmarks.ai/subprocessors. Personal Data is not transferred to any country outside the UK or the EEA in connection with the storage or processing of Personal Data under this Agreement.
Where anonymised assessment content is transmitted to AI model providers located in the United States for the purposes of AI marking and feedback generation, such transmission does not constitute a transfer of Personal Data, as all personal identifiers are removed prior to transmission as described in paragraph 3.1(d) of this Annex.
Where any transfer of Personal Data outside the UK or the EEA is or becomes necessary, Top Marks shall implement appropriate safeguards in accordance with paragraph 7 of Schedule 1, including:
(a) the UK International Data Transfer Agreement (IDTA), for transfers of Personal Data from the UK; and/or
(b) the approved EU Standard Contractual Clauses (SCCs), for transfers of Personal Data from the EEA.
**Document information**
| Document title | Terms and Conditions |
| --- | --- |
| Version | 2.0 |
| Effective date | 15 September 2026 |
| Owner | Alex Chapman, COO, Top Marks AI Ltd |
| Review date | August 2027 |
| Published at | topmarks.ai/terms |
| Company number | 11580241 |
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