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.
“Order Form” means a fully executed Spinview Order Form that incorporates this Agreement by reference and describes the Services to be provided by Spinview.
“Business Hours” means UK standard business hours of 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 or in anticipation of the Order Form (including the content of the Order Form) 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.
“Customer’s Equipment” means any equipment, systems or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
“Deliverables” means all Documents, products and materials developed by Spinview or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
“Document” includes, in addition to any document in writing, the Spinview Tours and any drawing, map, plan, diagram, design, photo, picture or other image, tape, disk or other device or record embodying information in any form.
“Intellectual Property 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.
“In-put Material” means all Documents, information and materials provided by the Customer relating to 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 as more particularly detailed in the Order Form.
“SLA” means the Spinview Service Level Agreement for the Spinview Platform located at the following URL: [http://spinview.se/downloads/Spinview SLA v3.pdf] (or such other URL as Spinview may provide from time to time).
“Spinview” means Spinview Global Limited (company number: 09997837) whose registered office is at 5 High Street, Pinner, Middlesex, United Kingdom.
“Spinview Equipment” means any equipment, including tools, systems or facilities, provided by Spinview or its subcontractors and used directly or indirectly in the supply of the Services.
“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 in the manner agreed with the Customer in the Order Form, the 360 degrees Virtual Tours.
“Subscription Term” means the period of time during which Spinview shall provide the Customer with access to the Spinview Platform as more particularly detailed in the Order Form and subject to 7.1, 10.2(a) below.
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
“VIRTUAL TOUR” means software manipulated panoramic graphic photographic and/or video digital tours.
“Virtual Reality Content” means software manipulated panoramic graphic video and/or unity (or other such Software) digital content 360 immersive environments.
“Virtual Reality Tours” means software manipulated panoramic graphic photographic and/or video digital content Tours.
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 and subject to clause 11, continue to provide the Services until delivered in accordance with the Order Form.
3. ORDER FORM(S) AND CHANGES TO ORDER FORM(S)
3.1 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 Spinview’s charges 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 a 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 a 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 No conditions, warranties or other terms apply to any Services supplied by Spinview under the Order Form unless expressly set out in this Agreement or the Order Form. Subject to clause 9.2 (b), no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description). Spinview does not warrant that the Customer’s use of the Services will be uninterrupted or error-free. Spinview is not responsible 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.
4.4 Where Spinview provides the Spinview Services as part of the Spinview Platform, customer shall receive up to 5gb of space per month for Virtual Tours and up to 7gb space per month for virtual reality environments unless otherwise specified in the Customer Order Form. In the event Customer exceeds these levels for any one item, unless otherwise agreed, Customer shall be charged at a rate of £2.00 (Two Pounds) per additional GB used.
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 out all other responsibilities set out 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, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, staff, office accommodation, Customer’s Equipment, 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 to Customer by Spinview pursuant to the applicable Order Forms and continuously 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 and the benefits which the Customer is deriving from the Services; (e) If the delivery of the Services involves one or more third party engaged by Customer, Customer shall facilitate the communication and promote the cooperation between Spinview and such relevant third parties. Customer further acknowledges and agrees that 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 these third parties engaged by Customer with which Spinview has no contractual relationship.
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 undertaking using Customer’s access credentials.
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, or racially or ethnically objectionable; (b) infringe the intellectual property 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.
6. CHARGES 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.
6.2 All charges quoted to the Customer 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 receipt. All payments due to Spinview shall be in pounds sterling or such other currency as set out in each Order Form. Neither party may set off any payment obligations it may incur under any Agreement against any fees owed and not yet paid by the other party under that Agreement and/or any other Order Form or agreements between the parties.
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 charges for the Services which is overdue. Spinview reserves the right to take down the Virtual Tour and/or other Deliverables whilst charges remain overdue.
7. USE AND INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Customer and Spinview, all Intellectual Property 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 charges detailed in the Order Form(s), Spinview licenses all such rights to the Customer for the duration of the Subscription Term 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.
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.
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 clause 9.1 and clause 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 period 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 incorporating this Agreement shall commence on the Order Form Effective Date and shall depending on the Services remain in full force and effect: (i) for the duration of the Subscription Term; or (ii) until all Services are delivered as determined by Spinview .
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) (i) the other party is in material breach of this Agreement and/or the Order Form where the breach is incapable of remedy; or (ii) the other party is in material breach of this Agreement and/or the Order Form where the breach is capable of remedy and 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 or resident or in which it carries on business or has assets.
10.3 On termination by the Customer of the Order Form incorporating this Agreement, Customer shall in accordance with the terms set out in clause 6 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 Form incorporating this Agreement 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 Upon the effective date of termination, Customer’s access to and right to use the Spinview Platform and the Services (including all Deliverables) will be terminated. 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. Customer acknowledges and agrees that subject to the foregoing, on and from the effective date of termination of the Agreement and the Order Form, Spinview shall have no obligation to maintain and provide the Spinview Tours.
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.
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, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement or Order Form as applicable and (a) the parties shall immediately commence good faith negotiations to remedy such invalidity; and (b) the validity and enforceability of the other provisions of the Agreement or Order Form as applicable shall not be affected.
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 any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of this Agreement or a Order Form at any time before its signature (together “Pre-Contractual Statements”), other than those which are set out in this Agreement or the Order Form. Each party waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
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 or modify the Services at any time. Spinview shall not materially diminish the functionality of the Services during the term of the Order Form. SAP may provide optional new features for the Services through its regular upgrades, which Customer may use, at its sole discretion, subject to the then-current applicable supplemental terms (if any). 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”). Spinview may require Customer to accept additional terms to use Beta Features. Any production 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 may be subject to additional charges to be agreed in a 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.