Platform Terms and Conditions 

These Terms and Conditions govern your use of Top Marks’s Platform and any services to be provided by Top Marks. By executing a Contract that references this Agreement, you (hereafter "Customer" or "you") agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to this Agreement. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Platform. This Agreement is effective as of that date that you accept it. Customer and Top Marks hereby agree as follows:

1.1 Definitions

In this Agreement, the following definitions will apply. Additional terms may be defined in this Agreement.

1.2 In the event and only to the extent of any conflict between the clauses of these Terms and Conditions, the SLA, the schedules of this Agreement, or the terms of the Contract, the following order of precedence shall apply: first, the special terms section of the Contract (where the Contract is a Subscription Contract) or the substantive clauses of the Contract (where the Contract is a Trial Agreement), in each case with respect to such Contract; second, the clauses of these Terms and Conditions; third, the SLA; fourth, the schedules of this Agreement; and fifth, the terms of the Contract other than as described in the first limb above. Any terms contained in any Proposals are not legally binding unless set forth in this Agreement.

1.3 The SLA and the Privacy Policy are each incorporated into this Agreement by reference. Top Marks may update the SLA and the Privacy Policy from time to time to reflect changes in its services, technology, or Applicable Law, and the then-current version published at topmarks.ai shall apply.

2. Licences and IPR Ownership

2.1 All Intellectual Property Rights in the Platform shall belong to and remain the property of Top Marks. All Intellectual Property Rights in any improvements and modifications to the Platform, or derivatives of the Platform, 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, shall belong to and remain the property of Top Marks. This Agreement in no way conveys any rights, title, or interest in the Platform in accordance with this Agreement, except as expressly set forth in this Agreement, all of which rights, title, and interests are hereby reserved.

2.2 You agree that, if at any time You make suggestions or provide feedback to Top Marks for the modifications, new features, improvements, or enhancements of the Platform, then any

Intellectual Property Rights in such suggestions and feedback shall be the property of Top Marks and Top Marks may use such suggestions or feedback for any purpose in perpetuity.

2.3 Subject to You paying the Fees and remaining in full compliance with all provisions of this Agreement, Top Marks grants to You, for the Licence Period, a limited, non-exclusive, non-transferable, non-sublicensable and revocable licence, solely to allow the Authorised Users to remotely access and use the Platform (solely for the scope of the project set out in a relevant Contract), subject to the terms of this Agreement and the restrictions on use of the Platform set forth in the Contract.

2.4 Top Marks shall provide each specific Authorised User with a read-only access to the Platform (a “Read-only Licence”). You and Top Marks shall agree the scope of rights provided to each Authorised User. The Platform is hosted by Top Marks.

2.5 Top Marks shall, during the Licence Period, provide bug-fixes and minor updates to the Platform to You at no additional cost.

2.6 Top Marks may, during the Licence Period, develop and offer to You new and enhanced versions of the Platform, with Fees to be set by Top Marks.

2.7 If Top Marks has not received payment of Fees within 30 days after their due date, and without prejudice to any other rights and remedies, Top Marks may disable Your credentials, accounts, and access to the Platform. Top Marks shall be under no obligation to permit You to use the Platform while any Fee invoice(s) remain(s) unpaid beyond their stated payment due date.

3. Customer Obligations

3.1 Except to the extent such activities are either expressly agreed to by the parties or otherwise prohibited from being restricted by Applicable Law, Customer shall not, and shall ensure that no Authorised User does:

a) copy, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell, provide access to, or in any way commercially exploit any part of the Platform;

b) copy, frame, or mirror any part of the Platform;

c) reverse engineer, decompile, translate, disassemble, or attempt to discover any source code or underlying ideas or algorithms in the Platform or the Platform (or any part of it) that is used to provide the Platform;

d) access the Platform to develop a competing Platform or Platform;

e) use, or authorise or permit any other person to use, the Platform in any manner which violates any law or regulation or which infringes the rights of any third party under the laws of any jurisdiction;

f) post, link to, or transmit, or allow posting, linking, or transmission by any third party, through the Platform any material which is unlawful, threatening, libelous, or otherwise harmful, fraudulent, deceptive, threatening, harassing, tortious, abusive, malicious, defamatory, vulgar, obscene, pornographic, or that contains a virus, Trojan horse, worm, time bomb, or other hostile computer program, including password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, encryption circumvention programs, or which constitutes, or encourages the commission of, a criminal offence, or which infringes any right of any person which may exist;

g) obscure, remove, or delete any copyright or other intellectual property notices from the Platform or Output;

h) use the Platform or allow the transfer, transmission, export, or re-export, of the Platform or portion thereof, in violation of any applicable export control laws or regulations under the laws of any jurisdiction;

i) use the Platform for any purpose which is reasonably likely to bring the business of Top Marks into disrepute;

j) interfere or attempt to interfere with the integrity of the Platform; or

k) attempt to gain access to third-party data contained on the Platform.

3.2 Further, the Customer agrees:

a) not to use the Platform in conjunction with third party confidential data unless You have that third party’s consent;

b) not to sell, assign, transfer, rent, lease, sublicence, lend, give, or make available the Platform to others, or otherwise to transfer the Platform in its present form or as converted or modified by You or Top Marks, or to make the Platform available in any manner for use by any other person, firm, or customer;

c) to provide Top Marks with feedback on any bugs, faults, or errors encountered during use of the Platform, as well as any modifications, new features, improvements, or enhancements You wish to see in the Platform;

d) to provide such Customer materials or information as Top Marks may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects;

e) to ensure that all Authorised Users are aware of Customer’s obligations under this Agreement and always comply with the applicable terms of the Agreement when using the Platform; and

f) to be responsible for all acts and omissions of Authorised Users during their usage of the Platform and that any such act or omission that would breach the terms of the

Agreement had the same been undertaken by Customer shall be deemed to be a breach by the Customer of the relevant provision(s) of the Agreement.

4. Data Protection

4.1 The parties agree 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, in respect of website or platform usage data), it shall do so in accordance with its Privacy Policy.

5. Customer Licence to Top Marks

5.1 As between Top Marks and Customer, all Intellectual Property Rights in the Customer Data and the Outputs shall be owned by the Customer. You grant an irrevocable licence for the term of this Agreement to allow Top Marks to use Your Confidential Information and the Outputs to enable Top Marks to fulfil its obligations pursuant to this Agreement, and You accept that other users and Top Marks may use public domain information, ordinary general knowledge, industry standard approaches, and ordinary skills used to develop information that is similar or identical to Your Confidential Information and Outputs. Top Marks has no liabilities or obligations to You pertaining to Top Marks’s use or third-parties’ use of such information or knowledge.

5.2 Top Marks may analyze any and all Outputs and other data related to Your use of the Platform, either manually or through automated systems, specifically to maintain, optimize, bug and error-fix, enhance, or improve the performance of the Platform itself for the benefit of any and all customers of Top Marks. Top Marks agrees that it will not use Customer’s data, including student data, for training or improvement purposes without the explicit written permission of the Customer (the school).

5.3 Customer grants to Top Marks a perpetual, world-wide, non-exclusive, non-transferable, non-sublicensable licence to use the Customer’s Branding (including any trademarks or other Intellectual Property Rights subsisting therein), to the extent necessary for Top Marks to discharge its obligations under the Agreement, and to enable Top Marks to utilize Customer’s Branding in any promotional materials, advertising and press releases.

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 the description of the Platform, Top Marks will, at its expense, use commercially reasonable efforts to correct any such non-conformance with reasonable promptness. Such effort constitutes Your 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 impact on:

(i) the performance of Top Marks’s IT systems;

(ii) the security of Top Marks’s IT systems and the security of Top Marks’s other customers and their data; and

(iii) Top Marks’s Intellectual Property Rights.

6.4 Top Marks shall notify Customer of any such suspension pursuant to clause 6.3, and the suspension shall continue only until the factors giving rise to the suspension have been remedied to Top Marks’s reasonable satisfaction. Such 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 in accordance with the terms of the Agreement. Top Marks shall use reasonable efforts to provide Customer with such information it is aware of to expedite the remedy of the factors giving rise to the suspension.

6.5 Top Marks does not warrant or represent that the Platform will be compatible or interoperable with any software, hardware, or service other expressly set out in the Contract.

6.6 Top Marks shall provide the Support Services and use reasonable efforts to meet the availability targets described in the SLA. For the avoidance of doubt, the specific service levels, incident priority definitions, response and resolution targets, and personal data breach notification timeframes are as set out in the SLA.

6.7 Where a Contract describes Customer's usage of the Platform as unlimited, such usage remains subject to this Fair Usage Policy. 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 underlying computing and AI processing resources on which the Platform depends.

6.8 Top Marks will set and publish Usage Thresholds at topmarks.ai/fairusage (or notify Customer of the applicable Usage Thresholds by other reasonable means), as may be updated by Top Marks 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.

6.9 Where Customer's usage of the Platform in any given 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 such 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 Any 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.

6.13 Top Marks will review the Fair Usage Policy, including the applicable Usage Thresholds, periodically, and may update them from time to time in accordance with clause 1.3.

7. Provision of the Services

7.1 Top Marks shall provide all Professional Services with reasonable care and skill. For the avoidance of doubt, in no circumstances shall any Professional Services provided by Top Marks to the Customer include any professional recommendations. Such Professional Services shall be limited to the operation of the Platform by the Customer.

7.2 Customer:

a) shall cooperate with Top Marks in all matters relating to the Professional Services;

b) shall appoint a manager for the Professional Services, such person as identified in the Contract; and

c) shall provide to Top Marks in a timely manner all documents, information, items, and materials in any form as may be reasonably required by Top Marks in connection with the Professional Services and ensure that they are accurate and complete.

7.3 Customer is not relying on the results of the Professional Services or any communication (written or oral) of Top Marks; it being understood that information and explanations related to the use of the Platform shall not be considered advice or a recommendation to make any specific decisions.

7.4 If Top Marks’s performance of the Professional Services is prevented or delayed by any act or omission of Customer, its Affiliates, agents, subcontractors, consultants, or employees, then, without prejudice to any other right or remedy it may have, Top Marks may at its option:

a) extend the time to perform its obligations equal to the delay caused by Customer; or

b) charge additional Fees in accordance with Top Marks’s then-current rates (as notified by Top Marks to the Customer from time to time) equal to the duration of the delay or for the additional Professional Services that need to be performed as a result of such delay caused by Customer.

8. Fees

8.1 Customer shall pay the Fees to Top Marks for the Platform and any Professional Services as set out in the Fees section of the Contract.

8.2 Any and all expenses, costs, and charges incurred by Customer in the performance of its obligations under the Agreement shall be paid by Customer unless Top Marks has expressly agreed beforehand in writing to pay such expenses, costs, or charges.

8.3 The invoicing frequency and billing arrangements will be set out in each Contract.

8.4 Customer shall pay the full amount invoiced to it by Top Marks in pounds sterling or as otherwise agreed within 14 days of the date of invoice.

8.5 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. Top Marks shall provide Customer with reasonable assistance as it may require to recover the same.

8.6 The Fees are exclusive of all taxes, which shall be payable by Customer in addition to the Fees.

8.7 Customer shall be responsible for the collection, remittance, and payment of any and all taxes, charges, levies, assessments, and other fees of any kind imposed by governmental or other authority in respect of the purchase, importation, resale, or other distribution of the Platform.

8.8 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’s 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 judgement, and Customer shall pay the interest together with the overdue amount; and

c) subject to applicable legal requirements, Top Marks may, in its ultimate discretion, suspend the Customer’s use of the Platform and provision of the Professional Services until such time as Top Marks is paid in full for such overdue amounts plus interest as applicable.

8.9 Annual Fee Increase

a) Unless otherwise agreed in the applicable Contract, on each anniversary of the Effective Date during the Licence Period (including any renewal period), the Fees payable under that Order Form shall increase automatically by the percentage increase in the UK Consumer Price Index (CPI), as published by the Office for National Statistics for the 12-month period ending on the most recent month for which data is available before that anniversary (or, if CPI ceases to be published, an equivalent replacement index reasonably selected by Top Marks).

b) Top Marks shall notify Customer in writing of the revised Fees at least 30 days before they take effect.

c) If Top Marks wishes to increase the Fees for any given year by more than the CPI-linked amount described in clause 8.9(a), Top Marks shall give Customer at least 60 days' written notice of the proposed increase and the reason for it. Customer may reject an increase in excess of CPI by giving Top Marks written notice within 30 days of receiving such notice, in which case the relevant Contract shall terminate at the end of the then-current Licence Period and clause 13.4 shall apply. If Customer does not give such notice within that period, the increased Fees shall take effect as notified.

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 Customer represents and warrants that in using or making any decisions based on Output from the Platform, whether following the provision of Professional Services or otherwise, Customer is acting for its own account, and Customer has made its own independent assessment with regard to such decisions and as to whether those decisions are appropriate or proper for Customer based upon Customer’s own judgment.

9.3 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 FORTH IN CLAUSES 6.1 OR 9.1, TOP MARKS HEREBY DISCLAIMS ALL WARRANTIES IN

RELATION TO THE PLATFORM, OUTPUT, AND PROFESSIONAL SERVICES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND MERCHANTABILITY, AND THAT THE PLATFORM, OUTPUT, OR PROFESSIONAL SERVICES WILL BE ERROR FREE, ACCURATE, OR COMPLETE. TOP MARKS DOES NOT GUARANTEE OR WARRANT ANY COST SAVINGS OR EFFICIENCY TO BE OBTAINED FROM THE PLATFORM OR 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 other 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.

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 for any loss, whether direct, indirect, or incidental, of business, profits, revenue, anticipated savings, loss of or depletion of goodwill, loss of or corruption of data, compensatory or restitutionary payments to any third party (other than in respect of third-party claims referenced in clause 12), any indirect, consequential, incidental, special, exemplary, or punitive loss or damage arising out of or related to the Platform, Professional Services, or this Agreement, or, in each case, however arising, whether in contract, tort (including negligence), breach of statutory duty or otherwise, and whether or not either party was aware of the possibility of such loss arising even if each party has been advised of the possibility of such losses.

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 by Customer to Top Marks pursuant to the Contract related to the liability in the 12 months prior to the event giving rise to the liability, or

b) £1,000. If no Contract is then in effect or if multiple Contracts are related to the liability, the Fees referenced in the prior sentence refers to the most recent Contract executed between the parties.

11.4 Subject to clause 11.1, the parties agree that the limitations described in clause 11.3 shall not apply to:

a) Customer’s obligation to pay all amounts due hereunder;

b) a breach by either party of clause 10 (Confidentiality);

c) Top Marks’s indemnification obligations in clause 12 (Indemnities); or d) either party’s violation of the other party’s Intellectual Property Rights.

11.5 Customer assumes sole responsibility for the Outputs or data Customer obtains from the use of the Platform, and for any interpretation, decisions, or conclusions drawn from such use. Top Marks shall not be liable for any decision resulting from the use of the Platform. You agree

that Top Marks shall have no liability to the Customer, Authorised Users or any Students for Customer’s use of the data, Outputs and the results of the Platform or Professional 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 Professional 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 You, Your officers, directors, and employees against any claim brought by a third party against You to the extent resulting from such a claim that the Platform infringes, misappropriates, or otherwise violates any patent effective as of the Effective Date, copyright, or trademark of such third party, and shall indemnify You for any amounts awarded against You in judgement or settlement of such claims that are specifically attributable to You, provided that:

a) Top Marks is given prompt notice of any such claim;

b) You provide 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 You 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) Your use of the Platform in a manner contrary to the instructions given to You by Top Marks or this Agreement;

(iii) Your 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 expected to be necessary for the operation of the Platform, if a claim would not have otherwise been made.

13. Term and Termination

13.1 Customer’s Licence Period for the Platform commences on the Effective Date and, unless sooner terminated as set forth herein or in the Contract, will continue for the period specified in the 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;

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 and make no further use of any Confidential Information, equipment, property, documentation, and other items (and all copies of them) belonging to the other party;

b) Customer will not have the right to use or access the Platform;

c) Top Marks shall return or delete any personally identifiable data of Authorised Users and Students processed by Top Marks pursuant to this Agreement;

d) Customer shall immediately pay all Fees incurred prior to the date of termination;

e) Customer shall have 30 days to export all Customer Data and Outputs from the Platform; 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 and anti-corruption from time to time, including but not limited to the Bribery Act 2010 as in effect from time to time in the United Kingdom, the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C §§ 78dd-1 et seq., and any export control regulations applicable to the subject matter of this Agreement (“Relevant Requirements”).

15.2 Each party shall:

a) not commit any act or omission which causes or could cause the other party and its Affiliates to breach, or commit an offence under, any Relevant Requirements;

b) have and maintain in place throughout the Licence Period its own policies and procedures, including adequate procedures under the Relevant Requirements, to

ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and

c) keep accurate and up to date records showing all payments made and received and all other advantages given and received by it in connection with the Agreement and the steps it takes to comply with this clause.

15.3 Each party shall ensure that any person associated with it who is performing activities in connection with the Agreement (“Associated Person”) is required to abide by terms equivalent to those agreed to by it in this clause (“Anti-Bribery Commitment”). Each party shall be responsible for the observance and performance by such Associated Persons of the Anti-Bribery Commitment and shall be directly liable to the other party for any breach by Associated Persons of that commitment.

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, and to also 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. 16.3 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.

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, recorded delivery post or by email to the other party at its address set out in the Contract (or such other address as may have been notified by that party for such purposes).

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 am London, U.K. time on the first business day following delivery). 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. Notices 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. Further Assurance

21.1 Each party will at its own cost upon the request of the other party take such actions as necessary to give the other the full benefit of the Agreement as intended between the parties hereto.

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 and 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.

Where Top Marks processes Personal Data otherwise than as described in this Schedule 1 and Annex A, it shall do so only on the written instructions of the Customer or as required 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).

1.Definitions

In this Schedule 1:

"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) 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

(e) 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", "personal data breach", and "pseudonymisation" 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. 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 as described in the Agreement and only to the extent and in such a manner as is necessary to perform its obligations under the Agreement or as otherwise required to comply with Applicable Law;

c) Top Marks shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the data security risks presented by processing of such Personal Data, including against the risk of accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, and/or access to, any Personal Data. Such appropriate technical and organisational measures may include measures designed to

(i) enable the ongoing confidentiality, integrity, availability and resilience of processing systems and services, and

(ii) restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident.

3. Top Marks shall ensure that access to the Personal Data is limited to the personnel of Top Marks and/or its sub-processors:

a) who are subject to confidentiality commitments with respect to such Personal Data; and

b) whose access to and/or processing of the Personal Data is required in order to provide the Platform Materials and/or the Services to Customer in accordance with the Agreement, and not further disclosed except as necessary to comply with Applicable Law or a valid and binding order of a governmental body.

4. Top Marks shall notify Customer without undue delay of Top Marks:

a) receiving any queries or requests from a data subject (including those relating to rights of access, rectification, erasure, portability, and the right to restrict or object to certain processing), regulator or any other supervisory authority it may receive in relation to any Personal Data; and/or

b) becoming aware of any loss, damage, destruction, or unauthorised processing or accidental disclosure of Personal Data, notifying Customer within the timeframe set out in the SLA, and provide reasonable assistance in relation thereto, as may be required by the Data Protection Legislation with respect to the notification to and

subsequent correspondence with regulators, supervisory authorities and data subjects.

5. Top Marks shall provide reasonable assistance to Customer to conduct privacy impact assessments (and any related consultations) where required under Data Protection Legislation, subject to Customer reimbursing Top Marks’s reasonable charges in doing so.

5A. 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, upon 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 changes to Top Marks' technical and organisational security measures which may affect 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 8 of this Schedule 1;

(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; and

(e) assisting the Customer in relation to prior consultation with the Information Commissioner's Office or another supervisory authority where the Customer determines, following a data protection impact assessment conducted pursuant to paragraph 5, that the processing presents a high risk to the rights and freedoms of data subjects that cannot be mitigated by available measures.

The Customer acknowledges that the scope of assistance provided under this paragraph 5A shall be limited to information and activities within Top Marks' reasonable knowledge and control, and shall be subject to 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.

6. Save as described in paragraph 3, Top Marks shall not transfer Personal Data to any third-party suppliers or sub-contractors outside the European Economic Area unless:

a) the transfer is to a country which recognised by the European Commission as ensuring an adequate level of protection in relation to data processing; or

b) the transfer has in place such safeguards as required by the applicable Data Protection Legislation to protect the relevant Personal Data, and also ensure that the applicable data subjects have enforceable rights and effective legal remedies.

7. Top Marks may provide Personal Data to the third-party sub-processors described in paragraph 3 and such sub-processors may process Personal Data on Top Marks’s behalf. Top Marks will not engage any other sub-processor to process Personal Data provided by Customer without obtaining Customer’s consent.

7A. Sub-Processor Contracts

Top Marks shall, prior to permitting any sub-processor to handle 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) 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, in the event that the sub-processor fails to fulfil its data protection obligations under such written contract.

Top Marks shall, upon written request from the Customer, provide confirmation 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 handling Personal Data is bound by obligations equivalent to those set out in this Schedule 1.

8. Top Marks shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer to demonstrate Top Marks’s compliance with its obligations set out in this Schedule provided that any audit and/or inspection in respect of Top Mark’s sub processor’s security measures and/or its physical data centres shall be limited to Top Marks requesting an audit report produced by those sub processors’ independent third party auditors.

9. When Top Marks ceases to provide services relating to the processing of Personal Data pursuant to the Agreement:

a) at the Customer’s option (and provided that the Customer notifies Top Marks of such option within 60 days of termination of the Agreement for any reason), delete or return to the Customer all Personal Data in Top Marks’s possession or control that relates to the Agreement and Top Marks shall comply with any such request within 30 days of the applicable request; and

b) subject to paragraph a promptly and in any event within 90 days of the termination of the Agreement for any reason delete all copies of the Personal Data in Top Marks’s possession or control that relates to the Agreement except insofar as Top Marks is required by Applicable Law to continue to store such copies.

10. Customer warrants that:

a) it has provided (or will provide) all necessary notices to, and where required by Applicable Law (including the Children’s Online Privacy Protection Act (COPPA) where applicable) has obtained (or will obtain) verifiable parental or guardian consent from, data subjects whose Personal Data comprises part of the Personal Data processed by or on behalf of Top Marks in connection with the Agreement; and

b) it has (or will have) one or more valid grounds for Top Marks’s (and any of Top Marks’s sub-processors’) processing of the Personal Data in accordance with the Agreement, so that Top Marks’s processing of the Personal Data in accordance with the Agreement will comply with the Data Protection Legislation.

11. Top Marks may use the following sub-processors to process Personal Data provided by Customer under the Agreement:

a) those set out at topmarks.ai/subprocessors; and

b) such other third-party sub-processors engaged by Top Marks as described in the applicable Contract.

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-powered automated essay and examination marking, transcription, and feedback platform (the "Platform") to the Customer, as further described in Appendix 1 to the Subscription Contract and in clause 6.1 of the Platform Terms and Conditions.

2. Duration of Processing

Top Marks will process Personal Data for the duration of the Licence Period as set out in the applicable Contract or Subscription Contract, and thereafter:

(a) for such period as is necessary to fulfil any deletion or return obligation under paragraph 9 of this Schedule 1 (being a maximum of 90 days following termination or expiry of the Agreement unless an earlier written instruction is received from the Customer); 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 using optical character recognition (OCR) technology and large language models (LLMs);

(d) anonymisation of essay and assessment content via an anonymising identification system, whereby student identity information is immediately separated from assessment content prior to any external AI processing;

(e) automated marking and feedback generation, whereby anonymised assessment content is processed through multiple LLM providers to generate numeric grades and written feedback;

(f) quality control processing, including cross-checking of LLM outputs for consistency and accuracy, and the application of AI safety guardrails to prevent prompt injection and hallucination;

(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 and 5 of this Schedule 1; and

(l) secure deletion or return of Personal Data upon termination of the Agreement in accordance with paragraph 9 of this 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 access by the CEO, COO, Chief Developer, and customer success staff of Top Marks and only where necessary for troubleshooting purposes; 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 Platform Terms and Conditions.

4. Types of Personal Data Processed

Top Marks processes the following types of Personal Data on behalf of the Customer: 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;

(d) Assessment results and AI-generated feedback produced by the Platform; and (e) Email addresses (where provided by the Customer for notification purposes).

The data at (a) to (e) 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); and

(e) Teacher-assessment associations (records linking uploaded assessments to individual teacher accounts).

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 collect or process 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.

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 warrants, in accordance with paragraph 10 of this Schedule 1 and section 5 of the Subscription Contract, that all necessary consents (including parental or guardian consent where required by Applicable Law) have been obtained prior to the submission of any Student Data to the Platform;

(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

For the purposes of Article 28(4) UK GDPR, Top Marks hereby gives general written authorisation to use the sub-processors listed at https://topmarks.ai/subprocessors (as updated from time to time in accordance with paragraph 7 of this Schedule 1) to process Personal Data on its behalf in connection with the provision of the Services. Top Marks shall:

(a) impose data protection obligations on each sub-processor that handles Personal Data that are equivalent to those imposed on Top Marks under this Schedule 1, by means of a written contract between Top Marks and the relevant sub-processor; and

(b) remain fully liable to the Customer for the performance of each sub-processor's obligations to the extent that the sub-processor fails to fulfil its data protection obligations.

The sub-processors currently authorised to handle Personal Data, together with their processing role and hosting location, are as follows:

Wonde Ltd acts on the documented instructions of the Customer in retrieving Personal Data from the Customer's MIS; such retrieval occurs only following the Customer's initiation of the integration and is subject to the safeguards set out in paragraph 7A of this Schedule 1.

All other sub-processors engaged by Top Marks in connection with the Services (including LLM providers and AI safety tools) process only anonymised content from which personal identifiers have been removed prior to transmission, and do not process Personal Data as defined in the Data Protection Legislation. A full list of all sub-processors, including those processing anonymised content only, is maintained at https://topmarks.ai/subprocessors.

7. International Transfers

All Personal Data processed under this Agreement is stored and primarily processed within the UK and/or the European Economic Area. Specifically:

(a) Platform hosting is provided by Render (Frankfurt, Germany);

(b) Primary database storage is provided by MongoDB Atlas, hosted on Amazon Web Services infrastructure located in Ireland; and

(c) Analytics processing is provided by Amplitude, EU hosted.

Personal data is not transferred to any country outside the UK or EEA in connection with the storage or primary processing of Personal Data under this Agreement.

Where anonymised assessment content is transmitted to LLM 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 via the barcode anonymisation system described in paragraph 3.1(c) of this Annex.

Where any transfer of Personal Data outside the UK or EEA is or becomes necessary, Top Marks shall implement appropriate safeguards in accordance with paragraph 6 of this 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.