Customer Terms and Conditions

Customer Terms and Conditions

AGREED TERMS

 1. DEFINITIONS AND INTERPRETATIONS

1.1 The definitions and rules of interpretation in this clause apply in this Agreement and the applicable Order Forms. Agreement means these terms and conditions.

Business Hours means 9am – 6pm GMT or BST as applicable Monday to Friday excluding UK public holidays.

Confidential Information means information disclosed by (or on behalf of) one party to the other party in connection with the Order Form (including its content) that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.

Deliverables means all Documents, products and materials developed by Spinview in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).

Document includes  any document in writing and any drawing, map, plan, diagram, design, photo, picture or other image, tape, disk or other device or record embodying information in any form.

DP Laws  means all applicable laws, standards and regulations governing the process sing of personal data, as may be amended or enacted from time to time, including all the provisions of the UK Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679 (GDPR) and any successor legislation to the GDPR or the Data Protection Act 2018.

In-put Material means all Documents, information and materials provided by the Customer relating to the Services.

IP Rights means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Order Form means a fully executed Spinview Order Form incorporating this Agreement describing the Services.

Pre-existing Materials means all Documents, information and any tangible or intangible materials (including hardware, software, source code, methodologies, know how, processes, techniques, ideas, concepts, technologies and data) provided by Spinview relating to the Services which existed prior to the commencement of the applicable Order Form.

Services means the services to be provided by Spinview under this Agreement in accordance with and detailed in the Order Form.

SLA means the Spinview Service Level Agreement for the Spinview Platform attached at Exhibit A (as Spinview may update from time to time).

Spinview means Spinview UK Limited (company number: 10174165) whose registered office is at 5 High Street, Pinner, Middlesex, HA5 5PW United Kingdom.

Spinview Platform means the platform owned, hosted and operated by Spinview (or its service providers) which hosts the Spinview Tours and from which the Services are provided.

Spinview Tours means the software manipulated panoramic graphic photographic and/or video digital content 360 degrees virtual tours provided by Spinview under this Agreement.

VAT means value added tax chargeable under English law for the time being and any similar additional tax.

1.2  Where the words include(s), including or in particular are used in this Agreement or any Order Form, they are deemed to have the words without limitation following them.

 2. COMMENCEMENT AND DURATION

Spinview shall provide the Services to the Customer on the terms and conditions of this Agreement and the Order Form from the date specified in the Order Form (Effective Date) and shall continue to provide the Services until the Order Form is terminated in accordance with clause 10.

 3. ORDER FORM(S) AND CHANGES TO ORDER FORM(S)

3.1 Each Order Form shall be part of this Agreement and shall not form a separate contract to it.   Once the Order Form has been signed by both parties, no amendment shall be made to it except in accordance with clause 3.2 below.   If the Order Form conflicts with the provisions of this Agreement then (unless expressly stated otherwise in the Order Form) the Order Form shall prevail.  Each party agrees that the terms printed on or incorporated by reference in an accepted purchase order shall not be binding on either party.

3.2  If either party requests a change to the scope or execution of the Services in the Order Form the parties shall, acting in good faith and within a reasonable time, agree: (a) the likely time required to implement the change; (b) any necessary variations to the Fees arising from the change; (c) the likely effect of the change on the Order Form; and (d) any other impact of the change on this Agreement.  All agreed changes to an Order Form must be set out in an amendment to the Order Form signed by both parties and attached to the original Order Form. If any amendment conflicts with the provisions of another Order Form then (unless expressly stated otherwise in an Order Form) the amendment in time shall prevail. All new service requests will be made on a new Order Form.

 4. WHAT SPINVIEW WILL DO FOR THE CUSTOMER

4.1  Spinview shall provide the Services and deliver the Deliverables to the Customer in accordance with the applicable Order Form with reasonable skill and care.  The Spinview Platform shall be provided in accordance with the SLA.

4.2  Spinview shall use reasonable endeavours to meet project milestones (if any) specified in an Order Form.

4.3  The undertaking at clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Spinview’s instructions, or modification or alteration of the Services by any party other than Spinview or its duly authorised contractors or agents.

4.4  No conditions, warranties or other terms apply to the Services unless expressly set out in this Agreement or the Order Form. Subject to clause 9.2, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).  The Services and the Spinview Documents are provided to the Customer on an “as is” basis and Spinview does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services will meet the Customer’s requirements. Spinview is not responsible for any damage caused by any actions taken by Spinview at the Customer’s direction or for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities (including the internet) which are not within Spinview’s reasonable control and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

4.5  Where Spinview provides the Spinview Services as part of the Spinview Platform, customer shall receive up to 5GB of space per month for Spinview Tours and up to 7GB space per month for virtual reality environments unless otherwise specified in the Order Form.  In the event Customer exceeds these levels for any one item Customer shall be charged Spinview’s then current excess data fees.  Spinview’s excess data fees current as at the Effective Date are set out in the Order Form.

5. WHAT THE CUSTOMER WILL DO FOR SPINVIEW

5.1  The Customer shall: (a) co-operate with Spinview in all matters relating to the Services and carry its responsibilities under in this Agreement and the Order Form in a timely and efficient manner.  In the event of any delays in Customer’s provision of such assistance as agreed by the parties, Spinview may adjust any agreed timetable or delivery schedule as reasonably necessary; (b) provide, for Spinview in a timely manner and at no charge, access to the Customer’s premises, staff, equipment, systems, data and other facilities as reasonably required by Spinview for the purposes of providing the Services; (c) provide, such In-put Material (if any) and other information as Spinview may reasonably require and ensure that it is accurate in all material respects; (d) provide prior notice to Spinview of any changes, works, projects undertaken by the Customer or any third party which are likely to affect the Services or the manner in which the Services are provided by Spinview and collaborate with Spinview with all due skill and care to minimise or remove any adverse impact which such changes, works and project may have on the Customer; (e) comply with all applicable laws and regulations with respect to its activities under this Agreement; (f) ensure that its network and systems comply with the relevant specifications provided by Spinview from time to time; (g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Services; (h) assume sole responsibility for results obtained from the use of the Services by the Customer and for conclusions drawn from such use. and (i) if the delivery of the Services involves one or more third party engaged by the Customer, the Customer shall facilitate the communication and cooperation between Spinview and such third parties. Spinview shall not be responsible to Customer if it is unable to comply with its obligations under this Agreement as a result of the acts or omissions of such third parties .

5.2  Customer will be issued access credentials to access and use the Spinview Platform and the Services.  Customer is responsible for keeping all access credentials secure and Customer is responsible for all activities undertaken using Customer’s access credentials. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Platform and, in the event of any such unauthorised access or use, promptly notify Spinview.

5.3  Customer shall not: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except to the extent expressly permitted under this Agreement and/or the Order Form, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Spinview Platform and/or any Deliverables (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Spinview Platform; or (b) access all or any part of the Spinview Platform, Services and Deliverables in order to build a product or service which competes with the Spinview Platform, the Services and/or the Deliverables or (c) attempt to obtain, or assist third parties in obtaining, access to the Spinview Platform, Services and/or Deliverables in breach of this Agreement and the Order Form.

5.4  When using the Services (in particular the Spinview Platform), Customer shall not and shall ensure its authorised users shall not: (a) transmit any content, data or information that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libellous invasive of another’s privacy right or right of publicity, discriminatory  or racially or ethnically objectionable facilitates illegal activity,  promotes unlawful violence; (b) infringe the IP Rights of any entity or person; (c) interfere with or disrupt the Spinview software or Spinview systems used to host the Spinview Platform, or other equipment or networks connected to the Services and Spinview reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

5.5  Customer is responsible for the legality, reliability, integrity, accuracy and quality of all In-put Materials.  Customer warrants that it has secured all necessary consents and rights from, and made all payments due to, third parties whose IP Rights are embodied in any In-put Materials to allow Customer to grant the rights granted under this Agreement.

6. FEES AND PAYMENT

6.1  In consideration of the provision of the Services, the Customer shall pay the charges set out in the Order Form in the manner set out in this Agreement and/or the Order Form (the Fees). Spinview shall be entitled to increase the Fees each year upon 30 days’ prior notice to the Customer.

6.2  The Fees shall be exclusive of VAT, which Spinview shall add to its invoices at the appropriate rate.  The Customer shall pay each invoice submitted to it by Spinview in full within 15 days of date of invoice.  All payments due to Spinview shall be in pounds sterling or such other currency as set out in each Order Form. Neither party shall have any rights of set off.

6.3  Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Spinview on the due date, Spinview may charge interest at the rate of 2% per annum above the base rate of Barclays Bank PLC from time to time, from the due date until the date of actual payment, whether before or after judgement, on any overdue Fees. Spinview reserves the right to take down the Spinview Tour and/or other Deliverables and shall be under no obligation to provide the Services whilst Fees remain overdue.

 7. USE AND IP RIGHTS

7.1  All IP Rights and all other rights in the Services (including the Spinview Platform), the Deliverables and the Pre-existing Materials shall be owned by Spinview.  Subject always to the timely payment by the Customer of the Fees, Spinview licenses all such rights to the Customer for the duration of the Agreement only on a non-transferable, royalty-free worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services.  Customer will leave in place (and not alter or obscure) all proprietary notices and licences contained in the Deliverables and the Pre-existing Materials.  All rights not expressly granted to Customer in the Agreement are reserved by Spinview and its licensors.

7.2   All IP Rights in the In-put Materials shall be owned by Customer or its licensors.  The Customer licenses all such rights to Spinview for the duration of the Agreement only, on a non-transferable, royalty-free, worldwide basis to such extent as is necessary to enable Spinview to provide the Services to the Customer.

8. CONFIDENTIALITY AND DATA PROTECTION

8.1  The recipient of any Confidential Information will not disclose that Confidential Information, except to employees and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep such information confidential. The recipient will ensure that those people and entities: (a) use such Confidential Information only to exercise rights and fulfil obligations under this Agreement and the applicable Order Form(s), and (b) keep such Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.

8.2  If Spinview processes any personal data (as defined in the DP Laws) on the Customer’s behalf under this Agreement (Customer Data), the Customer shall be the data controller and Spinview shall be a data processor and in any such case:

(a) Spinview shall comply with the requirements of DP Laws and the Customer Data shall be processed in accordance with the Customer’s reasonable instructions, which must be compliant with DP Laws.

(b) the Customer acknowledges and agrees that the Customer Data may be transferred or stored outside the EEA or the country where the Customer is located in order to provide the Services and perform Spinview’s other obligations under this agreement;

(c) the Customer warrants that it is entitled to transfer the Customer Data to Spinview so that Spinview may lawfully use, process and transfer the Customer Data in accordance with this agreement on the Customer’s behalf;

(d) the Customer shall ensure that the relevant parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable DP Laws;

(e) each party shall notify the other party if it receives a notice of non-compliance with, or an information request under, DP Laws;

(f) each party shall take appropriate technical and organisational security measures against unauthorised or unlawful processing of the Customer Data or its accidental loss, destruction or damage; and

(g)  Spinview shall, at the written direction of the Customer, delete or return the Customer Data and copies thereof to the Customer on termination of the agreement unless required by DP Laws or other applicable laws to store the Customer Data.

9. LIMITATION OF LIABILITY

9.1  This clause 9 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the other in respect of: (a) any breach of this Agreement and the Order Form; (b) any use made by the Customer of the Services, the Deliverables or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement and the Order Form.

9.2  Nothing in this Agreement or in the Order Form limits or excludes either party’s liability: (a) for death  or personal injury resulting from negligence; or (b) for fraud or fraudulent misrepresentation; or (c) payment of sums properly due and owing to the other in the course of normal performance of this Agreement and the Order Form.

9.3  Subject to clauses 9.1 and 9.2, neither party shall be liable under this Agreement or any Order Form (whether in contract, tort or otherwise) for any: (a)  loss of profit; (b)  loss of anticipated savings; (c) loss of business opportunity; (d) loss of or corruption of data; (e) loss of reputation or goodwill; or (f)  indirect or consequential losses; suffered or incurred by the other party, (whether or not such losses were within the contemplation of the parties at the date of this Agreement and/or the Order Form).

9.4  Either party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement or the Order Form shall be limited to 125% of the total amount paid and payable by Customer under the Order Form for the 12 months immediately preceding the event giving rise to the claim.

9.5  The Customer acknowledges that the Services may enable or assist Customer to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that Customer does so solely at its own risk.  Spinview makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Spinview.

 10. TERM AND TERMINATION

10.1  The Order Form shall commence on the Effective Date and shall remain in full force and effect for the Initial Term specified on the Order Form being  no less than 3 months from the Effective Date and shall continue thereafter until terminated by either party on 30 days’ prior written notice to the other unless otherwise terminated in accordance with clause 10.2.

10.2  Without prejudice to any other rights or remedies which the parties may have, either party may suspend or terminate the Order Form and this Agreement without liability to the other immediately on giving notice to the other if: (a) the other party fails to pay any amount due under this Agreement or the Order Form on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or (b) the other party is in material breach of this Agreement and/or the Order Form which breach is irremediable or (if such breach is remediable) fails to remedy that breach within fourteen (14) days after receiving written notice of such breach; or (c) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or (d) any analogous event happens to the other party in any jurisdiction in which it is incorporated, resident or in which it carries on business or has assets.

10.3  On termination of the Order Form for any reason, Customer shall pay Spinview all of Spinview’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Spinview may submit an invoice, which shall be payable within 15 days of receipt.

10.4  On termination of the Order by either party: (a) all licences granted by Spinview under the Agreement and the Order Form shall immediately terminate; (b) each party shall return or destroy as directed by the other party and make no further use of any Deliverables, equipment, property, Confidential Information, the Services (including the Spinview Platform) and other items (and all copies of them) belonging to the other party; and (c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

10.5   Within 90 days of the effective date of termination, for a charge to be agreed in writing with Spinview, Customer may request from Spinview the right to export and retrieve the Spinview Tours from the Spinview Platform and Spinview grants Customer a limited licence to use Spinview IP Rights solely for the purpose of viewing the exported Spinview Tours.  Customer acknowledges and agrees that subject to the foregoing, on and from the effective date of termination, Spinview shall have no obligation to maintain or provide the Spinview Tours.

 11. GENERAL

11.1  Neither party will be liable for any delay or non-performance of its obligations under this Agreement or the Order Form to the extent that such delay or non-performance is a result of any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labour conditions, power failures, and Internet disturbances.

11.2  Failure or delay in exercising any right or remedy under this Agreement or the Order Form shall not constitute a waiver of such (or any other) right or remedy nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.3  If any provision of this Agreement or the Order Form (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were amended or deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

11.4  This Agreement and the Order Form constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement and the Order Form.  Each party acknowledges that in entering into this Agreement or any Order Form it has not relied upon and shall have no remedies in respect of, any oral or written statements, collateral or other warranties, assurances, representations or undertakings (whether made innocently or negligently) that are not set out in this Agreement or the Order Form

11.5  Except as expressly stated otherwise, nothing in this Agreement or the Order Form shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement and the Order Form.

11.6  Except as expressly stated otherwise, nothing in this Agreement or the Order Form shall create an agency, partnership or joint venture of any kind between the parties.

11.7  Spinview may change the Services at any time provided that such changes shall not materially diminish the functionality of the Services. Spinview may offer and Customer may choose to accept access to functionality that is not generally available and not validated and quality assured (Beta Features) subject to acceptance by Customer of additional terms governing use thereof.   Any use of Beta Features is at Customer’s sole risk. Spinview does not warrant the correctness and completeness of the Beta Features and Spinview shall not be liable for errors or damages caused by the usage of the Beta Features.  Once Beta Features are properly released, continued use by the Customer will be subject to additional charges to be agreed in an Order Form.

11.8  Neither party may assign any of its rights or obligations under this Agreement or the Order Form without the prior written consent of the other such consent not to be unreasonably withheld save that either party can assign to any of its group companies without the consent of the other.

11.9  All notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address or other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).

11.10  This Agreement and the Order Form and all disputes and claims arising out of or in connection with them are governed by English law. With the sole exception of any application for injunctive relief, the parties irrevocably submit to the exclusive jurisdiction of the English courts.

12. PUBLICITY

12.1 The Customer consents to Spinview making an announcement in relation to this Agreement or otherwise publicising its existence and referring to the name, trade mark or trade name of the Customer in its promotional literature, subject in all cases to the prior written consent of the Customer (acting reasonably).

12.2 Notwithstanding clause 12.1, Spinview may use the Customer’s then current logo (as provided by the Customer from time to time) on its own promotional or marketing material including its website and online marketing material to publicise that the Customer is a customer of Spinview without such approval, provided that:

(a) such use is not accompanied by any further text or other material that refers to the Customer which has not been approved by the Customer;

(b) Spinview shall, at all times, comply with any reasonable directions given by the Customer as to the use of such logo; and

(c) Spinview shall promptly cease using the logo upon termination of this Agreement.

 

 

EXHIBIT A

SPINVIEW SERVICE LEVEL AGREEMENT

 

The Service Level Agreement sets the performance and uptime commitments by Spinview to the Customer:

 

1. Uptime Commitment

The Spinview Platform shall be available to the Customer 99.5% of each calendar month commencing with the first full calendar month following the month in which the Spinview’s product/service is launched for the Customer (“Uptime”).  Uptime for a given month shall be calculated as follows:

Uptime (%) = 100x (Total Time – Scheduled Down Time –  Downtime)

(Total time – Scheduled Down Time)

Load frequency Commitment

The Spinview Platform shall be available to the Customer up to an agreed upon maximim number of successful access requests per minute. The maximum number is set by the Hosting package selected by the Customer.

 

2. Calculation of Downtime.

(a)        “Downtime” means where the Spinview Platform is wholly or substantially inaccessible excluding periods of Scheduled Downtime or emergency maintenance as set out below.

(b)       Exclusions.

Regular Maintenance. Every Sunday morning, 3AM to 7AM CET Spinview may conduct maintenance to the Spinview Platform and infrastructure without prior notice, as long as downtime does not exceed one (1) hour.

Scheduled maintenance. Spinview may conduct up to eight (8) hours per calendar month of maintenance on the Spinview Platform, or of installing upgrades, fixes or reconfigurations (Regular maintenance and Scheduled maintenance shall together be “Scheduled Downtime”).

Emergency maintenance. Spinview may conduct emergency maintenance to its network or servers with no prior notice in order to resolve severe security issues or other emergency issues. Spinview will notify the Customer at the beginning and end of such maintenance, and will provide details on the nature of the work being performed.

3. Support Hours.

During regular business hours (9am-5pm CET), please contact your local Account Manager for questions. Outside normal business hours, for a Severity 1 issue (please see Severity Levels below), please email [email protected] for assistance.   Please note that all support will be in English.

4. Severity Levels:

(a)       Severity 1: loss of the service that significantly impacts your brand, or a security issue.  These problems are usually highly visible to a large number of viewers.  Example: Downtime causing slow performance, which critically impacts the Customer’s site performance.

(b)       Severity 2: an important problem that must be resolved quickly.  These problems are visible to some (but not all) viewers.  A workaround may exist. Example:  Critical bug impacting quality of application.

(c)       Severity 3: a bug in the Spinview Platform that is largely invisible to readers.  It needs to be fixed, but speed is not of the essence.  Example: Non-critical bug or performance seems to have slowed, but not critically affecting the Spinview Platform.

5. Issue Communication and Resolution:

Event      Target Response Time Target Resolution Time Report to:
Severity 1 1 hour 12 hours [email protected]
Severity 2 2 hours 48 hours for resolution [email protected]

and your account manager

Severity 3 1 business day Next scheduled maintenance build Your account manager

 

6. Escalation.

If Spinview fails to respond to a Severity 1 issue within 1 hour, or fails to resolve the issue within 12 hours, the Customer will escalate the issue to the Operations Manager via [email protected].

7. Suspension of the Spinview Service. 

In the event that Spinview fails to meet the above Uptime standard or respond to technical issues in accordance with the above issue resolution chart during three (3) consecutive months or more than six (6) times during a year, the Customer may suspend its use of the Spinview Platform until such time as Spinview has resolved the issue (aService Suspension”).