Customer Terms and Conditions
SPINVIEW SERVICES TERMS AND CONDITIONS
(A) Spinview (“Spinview”) and COMPANY have agreed that Spinview will provide certain services to COMPANY or COMPANY Customers in accordance with these Terms and Conditions.
(b) The Services (as defined below) ordered by COMPANY for its own internal use or for resale to COMPANY Customers are more particularly detailed on one or more separately stated Spinview Services Agreements.
(c) These Spinview Services Terms and Conditions and Conditions, together with the Terms and Conditions and conditions of any applicable Spinview Services Agreement(s) (as defined below), state the Terms and Conditions and conditions under which Spinview will supply and COMPANY may use (including resell) the Services.
AGREED TERMS AND CONDITIONS
1.DEFINITIONS AND INTERPRETATIONS
1.1.The definitions and rules of interpretation in this clause apply in these Spinview standard Terms and Conditions and conditions and the applicable Spinview Services Agreements (as defined below):
“App Addendum” means the Addendum forming part of these Terms and Conditions setting out the Terms and Conditions upon which Spinview license use of the Spinview App(s).
“Authorised Users” means those employees, agents and independent contractors of COMPANY who are authorised by COMPANY to use the Services the Spinview Platform or Spinview Application.
“Bespoke Content” means Content created specifically for COMPANY as part of the Services.
“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 Spinview Services Agreement (including the content of the Spinview Services Agreement) 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.
“Content” means any individual content asset which may include but not be limited to any form of virtual reality or augmented reality content including 360 degrees virtual reality tours or videos, 3D virtual reality content and/or unity content; image; videos; audio tracks; PDFs, all graphical, textual, auditory and/or audio-visual content (which may include but not be limited to text, data, information, photos, images, graphics, audio, video or other content) and other such marketing material for inclusion in the Spinview Services whatsoever created by or on behalf of COMPANY.
“Control” means the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise.
“COMPANY Customer” means a COMPANY customer or client of COMPANY which has entered into a Customer Agreement.
“COMPANY Information” means all personal data (as defined in DP Laws) only: (i) passed to Spinview in whatever form by COMPANY; or (ii) collected by Spinview on behalf of the COMPANY as a result of providing the Services and the Spinview Platform.
“Customer Agreement” means a written agreement entered into between COMPANY and the COMPANY Customer pursuant to which COMPANY makes the Services available to the COMPANY Customer in accordance with these Terms and Conditions, which Customer Agreement must at a minimum contain Terms and Conditions which: (i) are the same as or substantially similar to those imposed by Spinview on COMPANY; and (ii) do not contradict or conflict with these Terms and Conditions and/or the applicable Spinview Services Agreements.
“Deliverables” means all Content (including Bespoke Content), 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).
“DP Laws” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“Effective Date” means the date of signature or specified Effective Date on the Spinview Services Agreement associated with this Terms and Conditions and Conditions.
“End-User” means any employees, agents and independent contractors of COMPANY Customer who are authorised by COMPANY to use the Services including the Spinview Platform or Spinview Application.
“End-User Content” means all information, data, images, audio or video material, in whatever medium or form, inputted by any End User in relation to the use of or the Services including the Spinview Platform or Spinview Application; and all information related to any End User that is processed or stored by the Spinview Platform or Spinview Application.
“GDPR” means 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.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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 Content, information and materials originally provided by COMPANY or COMPANY’s Customers in connection with the Services.
“Pre-existing Materials” means all Content, 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 Spinview Services Agreement.
“Research Services” means the provision of reports to COMPANY outlining the results of research conducted by Spinview on biometric testing, EEG, eye tracking and facial recognition.
“Services” means: (i) Spinview Create services; (ii) the Spinview Platform services; (iii) the Spinview App services; (iv) Research Services; and (v) the Spinview Consulting Services (v) Spinview Content Licencing to be provided by Spinview to COMPANY or COMPANY’s Customers under these Terms and Conditions in accordance with and as more particularly detailed in the Spinview Services Agreement(s).
“SLA” means the Spinview Service Level Agreement for the Spinview Platform located in Exhibit A.
“Spinview App(s)” means the application software comprised of Spinview Software developed by Spinview and made available to COMPANY in accordance with and subject to the Terms and Conditions of the App Addendum.
“Spinview App services” means the provision of the Spinview App(s) to COMPANY in accordance with and subject to the Terms and Conditions of the App Addendum.
“Spinview Consulting Services” means the add-on services provided by Spinview from time to time as detailed in an Spinview Services Agreement.
“Spinview Content Licencing” means any pre prepared package of content that COMPANY or COMPANY Customer may licence or purchase as part of the Spinview Services.
“Spinview Create” means the creation of Bespoke Content by or on behalf of Spinview and licensed to COMPANY and COMPANY Customers.
“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) and licensed to COMPANY and/or White Labelled and sub-licensed to COMPANY Customers which includes but not limited to: (i) the hosting of In-put Materials; (ii) the distribution of Content; (iii) analytics and usage statistic reports; (iv) the ability to order Spinview Interactive Services or Spinview Create (v) any tools that are integrated in the Spinview Platform (vi) Spinview Apps and (vii) any other services available from time to time.
“Spinview Services Agreement” means: (i) the online Spinview Services Agreement Spinview Services Agreement located on the Platform and completed by COMPANY; or (ii) if agreed by Spinview, a fully executed Spinview Supplier Spinview Services Agreement that incorporates these Terms and Conditions by reference and describes the Services to be provided by Spinview or Services to be provided by COMPANY.
“Term” means the period of time during which Spinview shall provide COMPANY with access to the Spinview Platform as more particularly detailed in the Spinview Services Agreement.
“Terms and Conditions” means this Spinview Services Terms and Conditions.
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the GDPR; the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
“White Labelled” means that: (i) the Spinview Platform shall show COMPANY’s logo, name, contact details and references in place of the Spinview ones and key references to Spinview (including references to the Spinview Terms and Conditions of website use and privacy policy) shall be replaced with references to COMPANY; (ii) COMPANY shall be able to itself set up and manage COMPANY Customers’ orders in the Spinview Platform in accordance with Spinview’s reasonable instructions from time to time.
1.2.Where the words include(s), including or in particular are used in these Terms and Conditions or any Spinview Services Agreement, they are deemed to have the words without limitation following them.
2.SPINVIEW SERVICES AGREEMENT(S) AND CHANGES TO SPINVIEW SERVICES AGREEMENT(S)
2.1.Once an Spinview Services Agreement has been signed or accepted online by both parties it becomes a binding Agreement between the parties and no amendment shall be made to it except in accordance with clause 2.2 below. If an Spinview Services Agreement conflicts with the provisions of these Terms and Conditions then (unless expressly stated otherwise in the applicable Spinview Services Agreement) the Spinview Services Agreement shall prevail. Each party agrees that the Terms and Conditions printed on or incorporated by reference in an accepted purchase order shall not be binding on either party.
2.2.If either party requests a change to the scope or execution of the Services in an Spinview Services Agreement 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 applicable Spinview Services Agreement; and (d) any other impact of the change on the these Terms and Conditions or the Spinview Services Agreement. All agreed changes to an Spinview Services Agreement must be set out in an amendment to the applicable Spinview Services Agreement signed by both parties and attached to the original Spinview Services Agreement. If any amendment conflicts with the provisions of another Spinview Services Agreement then (unless expressly stated otherwise in an Spinview Services Agreement) the document latest in time shall prevail. All new Spinview service requests will be made on a new Spinview Services Agreement.
2.3.If COMPANY is purchasing the Services and reselling them to COMPANY Customers, COMPANY may offer COMPANY Customers a range of services, including the Services. COMPANY shall actively promote the Services with all due skill and care. COMPANY Customers must enter into a Customer Agreement with COMPANY for the Services. Spinview is not a party to the Customer Agreement and accepts no responsibility or liability under or in connection with the Customer Agreement. If the COMPANY Customer wishes to purchase any of the Services, COMPANY or COMPANY Customer (at COMPANY’s discretion) shall order the specified Services from the [White-Labelled] Spinview Platform by means of completing an Spinview Services Agreement. Spinview shall invoice COMPANY for all Spinview Services Agreements in accordance with these TERMS AND CONDITIONS.
2.4.Spinview shall review each Spinview Services Agreement submitted by COMPANY and shall confirm that it has all necessary information or request clarifications using the online Spinview dashboard to communicate with COMPANY. If Spinview has all the necessary information, Spinview shall confirm receipt of the Spinview Services Agreement and provide the Services.
2.5.COMPANY shall ensure that the correct formats are uploaded into the Spinview Platform and if COMPANY or COMPANY Customer orders any Spinview Services, COMPANY shall promptly and in accordance with all of Spinview’s reasonable instructions deliver to Spinview the relevant assets to enable Spinview to deliver the Services.
2.6.If COMPANY is buying the Services for COMPANY Customer, COMPANY shall not represent itself as an agent of Spinview for any purpose or give any condition or warranty or make any representation on Spinview’s behalf or commit Spinview to any contracts. COMPANY shall not make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Services which are inconsistent with any documentation supplied by Spinview (including these Terms and Conditions) or otherwise incur any liability on behalf of Spinview.
3.WHAT SPINVIEW WILL DO FOR COMPANY
3.1.Spinview shall provide the Services and deliver the Deliverables to COMPANY for COMPANY’s own use or for the benefit of COMPANY Customers in accordance with the applicable Spinview Services Agreement with reasonable skill and care. The Spinview Services may be White-Labelled if the parties mutually agree in writing and shall be provided in accordance with the SLA.
3.2.Spinview shall use reasonable endeavours to meet project milestones (if any) specified in an Spinview Services Agreement.
3.3.No conditions, warranties or other Terms and Conditions apply to any Services supplied by Spinview under the Spinview Services Agreement unless expressly set out in these Terms and Conditions or the Spinview Services Agreement. Subject to clause 9.2 (b), no implied conditions, warranties or other Terms and Conditions apply (including any implied Terms and Conditions as to satisfactory quality, fitness for purpose or conformance with description). Spinview does not warrant that COMPANY’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 COMPANY acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.4.Unless otherwise agreed in the Spinview Services Agreement. total space allocated per tour, VR or AR, or content asset of any kind is 5GB and Spinview shall allow a total holding per COMPANY or COMPANY Customer of 20GB to allow for all assets unless otherwise specified, there shall be a fee of £2.00 per Additional GB required (the “Additional GB Requirement”) which shall be applied at the end of any month that the COMPANY content exceeds the hosting limits for itself or each COMPANY Customer.
4.WHAT COMPANY WILL DO FOR SPINVIEW
4.1.COMPANY shall:
(a)co-operate with Spinview in all matters relating to the Services and carry out all other responsibilities set out in these Terms and Conditions and the Spinview Services Agreement in a timely and efficient manner. In the event of any delays in COMPANY’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 COMPANY’s premises, staff, office accommodation, COMPANY’s Equipment, data and other facilities as reasonably required by Spinview for the purposes of providing the Services;
(c)ensure that its Authorised Users and End Users use the Services including the Spinview Platform and Spinview Application in accordance with the Terms and Conditions and conditions of these Terms and Conditions and shall be responsible for breach of these Terms and Conditions caused or contributed to by any acts or omissions on the part of any Authorised User and End Users;
(d)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;
(e)provide prior notice to Spinview of any changes, works, projects undertaken by COMPANY or any third party which are likely to affect the Services or the manner in which the Services are provided to COMPANY by Spinview pursuant to the applicable Spinview Services Agreement 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 COMPANY and the benefits which COMPANY is deriving from the Services;
(f)If the delivery of the Services involves one or more third party engaged by COMPANY, COMPANY shall facilitate the communication and promote the cooperation between Spinview and such relevant third parties. COMPANY further acknowledges and agrees that Spinview shall not be responsible to COMPANY if it is unable to comply with its obligations under these Terms and Conditions or the Spinview Services Agreement as a result of the acts or omissions of these third parties engaged by COMPANY with which Spinview has no contractual relationship.
4.2.COMPANY will be issued access credentials to access and use the Spinview Platform and the Services. COMPANY is responsible for keeping all access credentials secure and COMPANY is responsible for all activities undertaking using COMPANY’s access credentials.
4.3.COMPANY 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 these Terms and Conditions and/or the Spinview Services Agreement, 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, the Spinview Services 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 the Terms and Conditions and the Spinview Services Agreement.
4.4.When using the Services (in particular the Spinview Platform), COMPANY shall not (and shall ensure its Authorised Users and COMPANY’s Customers 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. COMPANY is (and COMPANY shall ensure that COMPANY’s Customers agree in the Customer Agreement that they are) solely responsible for any and all Content uploaded on the Spinview Platform. COMPANY warrants (and shall procure that each COMPANY Customer warrants) that it has a licence to use all Intellectual Property Rights in all the Content. In particular, COMPANY has a valid and enforceable agreement with, and has secured all necessary consents, clearances and rights from, all third parties whose rights, work, performances or services are embodied in any Content to allow COMPANY to grant the rights granted in accordance with these Terms and Conditions and the Spinview Services Agreement. COMPANY is solely responsible for all payments, fees or royalties that may be due to any such party arising from the availability of the Content on the Spinview Platform.
4.5.COMPANY shall inform Spinview immediately of any changes in ownership or Control of COMPANY and of any change in its organisation or method of doing business which might affect the performance of the COMPANY’s duties in these Terms and Conditions and the applicable Spinview Services Agreement(s) and consistent with best industry practice, COMPANY shall at all times conduct its activities in a professional and competent manner.
4.6.For the duration of these Terms and Conditions and all Spinview Services Agreements, COMPANY shall not engage the services of any other third party for the purposes of receiving services which are the same or substantially similar to the Services offered by Spinview under these Terms and Conditions and/or the Spinview Services Agreements.
4.7.If COMPANY is making the Services available to COMPANY Customers, COMPANY must actively promote the Services using marketing information approved by Spinview in writing. COMPANY shall provide to Spinview a quarterly forecast, sales and marketing plan in a format to be mutually agreed between the parties to enable Spinview to forecast the demand for the Services.
5.CHARGES AND PAYMENT
5.1.In consideration of the provision of the Services, COMPANY shall pay the fees (“Spinview Fees”) set out in the Spinview Services Agreement in the manner set out in these Terms and Conditions and/or the Spinview Services Agreement. In the absence of any additional terms the following payment schedule shall apply:
5.1.1.Spinview Platform fees: Monthly payments on the first of each month in advance, Annual payments on date of order. Part month payments will be pro rata from the Effective Date.
5.1.2.Spinview Create, Spinview Consulting or other one off Content fees, unless otherwise specified shall be invoiceable on the Effective Date.
5.2.All charges quoted to the COMPANY shall be exclusive of VAT, which Spinview shall add to its invoices at the appropriate rate. The COMPANY shall pay each invoice submitted to it by Spinview in full within 15 days of the date of the invoice, unless otherwise specified in the Spinview Service Agreement. All payments due to Spinview shall be in pounds sterling or such other currency as set out in the Spinview Services Agreement. Neither party shall have any rights of set off.
5.3.Without prejudice to any other right or remedy that it may have, if the COMPANY fails to pay Spinview on the due date, Spinview may charge interest at 8% per annum above the base rate of the Bank of England 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 remove access to the Spinview Platform whilst charges remain overdue.
5.4.Spinview reserves the right to use Invoice Factoring Arrangements as required at Spinview’s Sole discretion.
5.5 Spinview may increase fees each year on the anniversary of effective date by the greater of 2% or the increase in the UK RPI over the previous 12 month period.
6.USE AND INTELLECTUAL PROPERTY RIGHTS
6.1.As between the COMPANY and Spinview, all Intellectual Property Rights and all other rights in the Services, the Spinview Platform, the Spinview Equipment, the Deliverables and the Pre-existing Materials shall be owned by Spinview or its licensors. Subject always to the timely payment by the COMPANY of the charges detailed in the Spinview Services Agreement, Spinview licenses all such rights to the COMPANY for the duration of the Spinview Services Agreement only, on a non-transferable, royalty-free, worldwide basis to such extent as is necessary to enable the COMPANY to make reasonable use of the Deliverables, the Spinview Platform and the Services. COMPANY 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 COMPANY in these Terms and Conditions or the Spinview Services Agreement are reserved by Spinview and its licensors.
6.2.As between the COMPANY and Spinview, all Intellectual Property Rights in the In-put Materials shall be owned by COMPANY or its licensors. COMPANY licenses all such rights to Spinview for the duration of the Spinview Services Agreement only, on a non-transferable, royalty-free, worldwide basis to such extent as is necessary to enable Spinview to provide the Spinview Platform and the Services to COMPANY.
7.CONFIDENTIALITY AND DATA PROTECTION
7.1.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 these Terms and Conditions and the applicable Spinview Services Agreement, 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.DATA PROTECTION
8.1.Both parties will comply with all applicable requirements of DP Laws. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under DP Laws.
8.2.Spinview Services Agreement COMPANY warrants that Spinview is permitted to process COMPANY Information of which COMPANY is the data controller (as defined in DP Laws) in accordance with these Terms and Conditions and the Spinview Services Agreement and COMPANY shall notify Spinview immediately if it receives any notice of non-compliance with, or a request for information under DP Laws.
8.3.The parties acknowledge that:
(a)Save in relation to any Research Services if Spinview processes any personal data on COMPANY’s behalf when performing its obligations under these Terms and Conditions, COMPANY is the controller and Spinview is the processor for the purposes of DP Laws.
(b)the personal data may be transferred or stored outside the European Economic Area and the United Kingdom or the country where COMPANY, the Authorised Users or the End-Users are located in order to carry out the Services and Spinview’s other obligations under these Terms and Conditions.
8.4.Without prejudice to the generality of clause 8.1, COMPANY will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Spinview for the duration and purposes of these Terms and Conditions so that Spinview may lawfully use, process and transfer the personal data in accordance with these Terms and Conditions on COMPANY’s behalf and, without limitation, COMPANY shall ensure that all Authorised Users have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all End-User Content by COMPANY or Spinview in accordance with these Terms and Conditions.
8.5.Without prejudice to the generality of clause 8.1, Spinview shall, in relation to any personal data processed in connection with the performance by Spinview of its obligations under these Terms and Conditions:
(a)process that personal data only on the documented written reasonable instructions of COMPANY which must be compliant with DP Laws, unless Spinview is required by the laws of any member of the European Union or by the laws of the European Union applicable to Spinview and/or UK Data Protection Legislation to process personal data (Applicable Laws). Where Spinview is relying on Applicable Laws as the basis for processing personal data, Spinview shall promptly notify COMPANY of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Spinview from so notifying COMPANY;
(b)ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
(c)not transfer any personal data outside of the EEA unless the following conditions are met:
i.COMPANY or Spinview has provided appropriate safeguards in relation to the transfer;
ii.the data subject has enforceable rights and effective legal remedies;
iii.Spinview complies with its obligations under the DP Laws by providing an adequate level of protection to any personal data that is transferred; and
iv.Spinview complies with reasonable instructions notified to it in advance by COMPANY with respect to the processing of the personal data;
(d)assist COMPANY, at COMPANY’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the DP Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e)notify COMPANY without undue delay on becoming aware of a personal data breach or if it receives any notice of non-compliance with, or a request for information under DP Laws;
(f)at the written direction of COMPANY, delete or return personal data and copies thereof to COMPANY on termination of the agreement unless required by Applicable Law to store the personal data; and
(g)maintain complete and accurate records and information to demonstrate its compliance with this clause 8 and inform COMPANY if, in the opinion of Spinview, an instruction infringes the DP Laws.
8.6.COMPANY consents to Spinview appointing third-party processors of personal data under these Terms and Conditions. Spinview confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating Terms and Conditions which are substantially similar to those set out in this clause 8 and in either case which Spinview confirms reflect and will continue to reflect the requirements of the DP Laws. As between COMPANY and Spinview, Spinview shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 8.
8.7.Either party may, at any time on not less than 30 days’ notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar Terms and Conditions forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Terms and Conditions).
9.RESEARCH SERVICES
9.1.Where Spinview has agreed to provide Research Services, as part of the Research Services, Spinview may disclose personal data collected and controlled by it as a result of biometric testing, EEG, eye tracking and facial recognition research (“Research Personal Data”).
9.2.COMPANY shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data including Research Personal Data and against accidental loss or destruction of, or damage to, Research Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it) COMPANY shall ensure that the Research PersonalData are kept secure and in an encrypted form, and shall use the best available security practices and systems applicable to the use of the Research PersonalData to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Data and the Materials.
9.3.If COMPANY becomes aware of any misuse of any Research Personal Data, or any security breach in connection with this Agreement that could compromise the security or integrity of the Data or otherwise adversely affect Spinview, COMPANY shall, at COMPANY’s expense, promptly notify Spinview and fully co-operate with Spinview to remedy the issue as soon as reasonably practicable.
9.4.COMPANY agrees to co-operate with Spinview ‘s reasonable security investigations.
9.5.Spinview grants to COMPANY a non-exclusive, non-transferable, revocable, licence for the Permitted Use only during the Term, subject to the restrictions in clause 9.6, to:
(a)access, view and to combine or aggregate the Research Personal Data (wholly or in part) with other data or information (wholly or in part) for its internal business purposes;
(b)store the Research Personal Data and manipulated Research Personal Data on COMPANY systems.
9.6.COMPANY shall:
(a)only make copies of the Research Personal Data to the extent reasonably necessary for the following purposes: back-up, security, disaster recovery and testing;
(b)not use the Research Services for any purpose contrary to any law or regulation or any regulatory code, guidance or request;
(c)not extract, reutilise, use, exploit, redistribute, redisseminate, copy or store the Data or the Materials for any purpose not expressly permitted by this Agreement;
(d)not do anything which may damage the reputation of Spinview, the Data or the Services, including by way of using the Data (wholly or in part) in any manner which is pornographic, racist or that incites religious hatred or violence.
9.7.COMPANY acknowledges that:
(a)all Intellectual Property Rights in the Research Personal Data are the property of Spinview or its licensors, as the case may be;
(b)it shall have no rights in or to the Research Personal Data other than the right to use them in accordance with the express Terms and Conditions of this Agreement; and
(c)Spinview or its licensors has or have made and will continue to make substantial investment in the obtaining, verification, selection, coordination, development, presentation and supply of the Research Personal Data.
9.8.COMPANY assigns to Spinview with full title guarantee all Intellectual Property Rights in any manipulated Research Personal Data it may create, by way of future assignment.
9.9.COMPANY shall, and shall use all reasonable endeavours to procure that any necessary third party shall, at Spinview’s cost, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
10.LIMITATION OF LIABILITY
10.1.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 these Terms and Conditions and/or the Spinview Services Agreement; (b) any use made by COMPANY of the Services, the Spinview Platform, 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 these Terms and Conditions and the Spinview Services Agreement.
10.2.Nothing in these Terms and Conditions or in the Spinview Services Agreement 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 these Terms and Conditions and the Spinview Services Agreement.
10.3.Subject to clause 10.1 and clause 10.2, neither party shall be liable under these Terms and Conditions or any Spinview Services Agreement (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 these Terms and Conditions and/or the Spinview Services Agreement).
10.4.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 these Terms and Conditions or the Spinview Services Agreement shall be limited to 125% of the total amount paid and payable by COMPANY under the Spinview Services Agreement for the 12 months period immediately preceding the event giving rise to the claim.
10.5.The COMPANY acknowledges that the Services may enable or assist COMPANY to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that COMPANY 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 COMPANY, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the COMPANY and the relevant third party, and not Spinview.
11.TERM AND TERMINATION
11.1.Subject to clause 11.2: (a) these Terms and Conditions shall commence on the Effective Date and shall continue for a period of 14 days (the “Trial Period”) and shall then continue:
(a) unless terminated by either party giving the other no less than 7 days prior written notice such notice to take effect at the end of the Trial Period or following calendar month; or
(b) From the end of the Trial Period the term shall continue for a period of 12 months (twelve) (the “Initial Term”). At the end of the Initial Term, these Terms and Conditions will automatically renew on the same Terms and Conditions and conditions on a 12 (twelve) months rolling basis (each 12 months’ period is a “Renewal Term”). During the Initial Term or a Renewal Term either Party can terminate these Terms and Conditions by providing 90 (ninety) days prior written termination notice to the other party, such termination notice to take effect at the end of the Initial Term or the then current Renewal Term; or
(c) each Spinview Services Agreement shall commence on the Spinview Services Agreement Effective Date and unless agreed otherwise at time of order, shall remain in full force and effect:(i) for the duration of the Term specified in the Spinview Services Agreement ( the “Subscription Term”) ; or (ii) until all Services are delivered as determined by Spinview.
(d) At the end of any fixed Term specified in the Spinview Services Agreement the Term shall renew automatically on a day by day rolling basis until Terminated by either Party on 7 days written notice in Accordance with this Agreement unless renewed between the Parties.
11.2.Without prejudice to any other rights or remedies which the parties may have, either party may suspend or terminate the Spinview Services Agreement and these Terms and Conditions without liability to the other immediately on giving notice to the other if: (a) the other party fails to pay any amount due under these Terms and Conditions or the Spinview Services Agreement 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 these Terms and Conditions and/or the Spinview Services Agreement where the breach is incapable of remedy; or (ii) the other party is in material breach of these Terms and Conditions and/or the Spinview Services Agreement 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.
11.3.On termination by COMPANY of the Spinview Services Agreement incorporating these Terms and Conditions, COMPANY shall in accordance with the Terms and Conditions 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 the date of the invoice.
11.4.On termination of an Spinview Services Agreement in accordance with these Terms and Conditions or all Spinview Services Agreements and these Terms and Conditions: (a) all licences granted by Spinview under these Terms and Conditions and in relation to the terminated Spinview Services Agreement 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 provided under or in connection with the terminated Spinview Services Agreement(s) and/or these Terms and Conditions; ; 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.
11.5.Within 90 days of the effective date of termination of the applicable Spinview Services Agreement or all Spinview Services Agreements, for a charge to be agreed in writing with Spinview, COMPANY may request from Spinview the right to export and retrieve the In-put Material and COMPANY Information provided under or in connection with the terminate Spinview Services Agreement (s) from the Spinview Platform. COMPANY acknowledges and agrees that subject to the foregoing, on and from the effective date of termination of these Terms and Conditions and/or the applicable Spinview Services Agreement(s), Spinview shall have no obligation to maintain and provide the Services ordered under the terminated Spinview Services Agreement(s).
12.GENERAL
12.1.Neither party will be liable for any delay or non-performance of its obligations under these Terms and Conditions or the Spinview Services Agreement 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.
12.2.Failure or delay in exercising any right or remedy under these Terms and Conditions or the Spinview Services Agreement shall not constitute a waiver of such (or any other) right or remedy.
12.3.If any provision of these Terms and Conditions or the Spinview Services Agreement (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 these Terms and Conditions or the Spinview Services Agreement 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 these Terms and Conditions or the Spinview Services Agreement as applicable shall not be affected.
12.4.These Terms and Conditions and the Spinview Services Agreement constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of these Terms and Conditions and the Spinview Services Agreement. Each party acknowledges that in entering into these Terms and Conditions or any Spinview Services Agreement 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 these Terms and Conditions or the Spinview Services Agreement at any time before its signature (together “Pre-Contractual Statements”), other than those which are set out in these Terms and Conditions or the Spinview Services Agreement. Each party waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.
12.5.Except as expressly stated otherwise, nothing in these Terms and Conditions or the Spinview Services Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to these Terms and Conditions and the Spinview Services Agreement.
12.6.Except as expressly stated otherwise, nothing in these Terms and Conditions or the Spinview Services Agreement shall create an agency, partnership or joint venture of any kind between the parties.
12.7.Both parties agree to perform its respective obligations as set out in these Terms and Conditions and all Spinview Services Agreements in a reasonable manner that reflects favourably at all times on either party and the good name, goodwill and reputation of either party; and shall avoid deceptive, misleading or unethical practices that are, or might be, detrimental to either party or the Services.
12.8.Spinview may change or modify the Services and/or the Spinview Platform at any time. Spinview shall not materially diminish the functionality of the Services or the Spinview Platform during the term of the Spinview Services Agreement. Spinview may provide optional new features for the Services through its regular upgrades, which COMPANY may use, at its sole discretion, subject to signing the then-current applicable supplemental Terms and Conditions (if any) or a new Spinview Services Agreement. Spinview may offer and COMPANY may choose to accept access to functionality that is not generally available and not validated and quality assured (“Beta Features”). Spinview may require COMPANY to accept additional Terms and Conditions to use Beta Features. Any production use of Beta Features is at COMPANY’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 COMPANY may be subject to additional charges to be agreed in an Spinview Services Agreement.
12.9.Spinview may, at its expense (unless otherwise agreed between the Parties) subcontract with any entity or person concerning the provision of the services contemplated hereunder; provided, however, that Spinview shall not be relieved of any of its obligations under this Agreement by the appointment of such subcontractor and provided further, that Spinview shall be responsible for all acts of such subcontractor as if such acts were its own.
12.10.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).
12.11.These Terms and Conditions and the Spinview Services Agreement 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.
EXHIBIT A
SPINVIEW PLATFORM SERVICE LEVEL AGREEMENT
Spinview is providing the Spinview Service to the COMPANY for the mutual benefit of COMPANY and Spinview. The Service Level Agreement sets the performance and uptime commitments by Spinview to the COMPANY and COMPANY COMPANYs:
1.UPTIME COMMITMENT.
The Spinview Service shall be available to COMPANY 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 COMPANY (“Uptime”). Availability for a given month shall be calculated as follows:
Availability (%) = 100x(Total Time – Scheduled Down Time – Downtime)
(Total time – Scheduled Down Time)
LOAD FREQUENCY COMMITMENT
The Spinview Service shall be available to COMPANY up to an agreed upon maximum number of successful access requests per minute. The maximum number is set by the Hosting package selected by COMPANY.
2.CALCULATION OF DOWNTIME.
(a)Downtime Events.
The following shall be events which may qualify as “Downtime”: The Spinview services as by the agreement is wholly or in substantial part inaccessible excluding downtimes derived out of scheduled or emergency maintenance as set forth below.
(b)Exclusions.
i.Regular Maintenance windows. Every Sunday morning, 3AM to 7AM CET is defined as a regular maintenance window, where Spinview may conduct maintenance to the Spinview service and infrastructure without prior notice, as long as downtime does not exceed one (1) hour during this window.
ii.Scheduled maintenance. Spinview may conduct up to eight (8) hours per calendar month of scheduled maintenance for purposes of performing maintenance on the Spinview Service, or installing upgrades, fixes or reconfigurations (“Scheduled Down Time”).
iii.Emergency maintenance. Spinview may conduct emergency maintenance to its network or servers with no prior notice in order to resolve sever security issues or other emergency issues. Spinview will notify COMPANYs 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 from an Account Manager. 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 COMPANY’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 product or service 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 our site.
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, COMPANY 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, COMPANY may suspend its use of the Spinview Service until such time as Spinview has resolved the issue (a “Service Suspension”).