Viddyoze Terms and Conditions

1. Definitions and Interpretation

1.1 Defined words and expressions used in this Agreement shall take the following meanings:

2013 Regulations: the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

Acceptable Use Policy: means Viddyoze’s acceptable use policy for using the Site and the Services, available at https://viddyoze.com/terms/acceptable-use, and as amended from time to time.

Agreement: the agreement between Viddyoze and the Customer for the provision of the Services, comprised of the Proposal, the Order and these Terms.

Authorised User: the sole person authorised to access the Services on behalf of the Customer.

Business: means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.

Business Day: a day other than a Saturday, Sunday or public holiday in England on which banks in London are open for business.

Business Hours: means 09:00 to 17:00 on a Business Day.

Commencement Date: has the meaning in clause 2.6.

Confidential information: means any and all confidential information (whether in oral, written or electronic form) imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, services, software, products, solutions and customers, including without limitation information relating to manufacturing or other processes, management, financial, marketing, technical and other arrangements or operations of any person, firm, or organisation associated with that party.

Consumer: has the meaning given in the 2013 Regulations: “an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.”

Customer: means the Business or Consumer that wishes to purchase the Services and that is entering into the Agreement.

Customer Data: means any personal data provided by or on behalf of the Customer (or an Authorised User).

Customer Materials: the content, images, logos, text or other materials or multimedia uploaded to the Templates by the Customer, the Authorised User or Viddyoze on the Customer’s behalf for the purpose of using, developing or maintaining the Derivative Works or using the Services or facilitating the Customer’s or the Authorised User’s use of the Services.

Documentation: the documentation made available to the Customer by Viddyoze online via the Site or such other web address notified by Viddyoze from time to time which sets out a description of the Services and the user instructions for the Services.

DP Legislation: means any DP Legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation. The terms Data Controller, Data Processor, Data Subject, Personal Data and Processing bear the respective meanings given to them in the DP Legislation.

Force Majeure Event: means any circumstance not within a party’s reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party), and interruption or failure of utility service.

Initial Term: shall have the meaning given in clause 4.6.

Intellectual Property Rights: means:

• (a) any and all copyright, database rights and any and all related rights;
• (b) source code of the software to which it relates, in the language in which the software was written, together with all related flow charts and technical documentation;
• (c) rights in designs, trade marks, domain names, goodwill, business names, rights to sue for passing off;
• (d) patents;
• (e) rights in Confidential Information (including know how and trade secrets); and
• (f) any other intellectual property rights (including, where relevant, all extensions, reversions, revivals and renewals of the same),

in each case whether registered or unregistered and including all applications (and rights to apply) for protection of such rights and all similar or equivalent rights or forms of protection which now, or will in the future, subsist in any part of the world.

IPR Claim: has the meaning given in clause 8.6.

Loss: means any actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements and Losses shall be construed accordingly.

New Customer: means a Business or Consumer that has not previously purchased the Services (or any other services advertised) from Viddyoze.

One Time Licence: means the one time licence Subscription Option, the details, features and benefits of which are as further particularised within these Terms and the Promotional Materials.

Order: the Customer’s written order to purchase the Services from Viddyoze, which shall be raised in accordance with clause 2.4.

Platform: means the Site, Software and/or any other website(s), application(s) or platform(s) used by Viddyoze for the delivery of the Services from time to time.

Promotional Materials: means the Site and any other sales, promotional or advertising literature or materials published by Viddyoze regarding the Services.

Proposal: the proposal, quotation and/or specification issued to the Customer in writing relating to the supply of the Services and which for the avoidance of doubt shall not be classified as an offer but an invitation to treat.

Renewal Period: shall have the meaning given in clause 4.7.

Services: the services provided by Viddyoze to the Customer via the Platform (including any Templates) under the Agreement in accordance with the Subscription, as more particularly described in the Documentation and these Terms.

Site: www.viddyoze.com.

Software: means any software owned or operated by Viddyoze for or in connection with the delivery of the Services, including but not limited to that which interacts with the Platform.

Subscription: the Customer’s subscription to receive the Services.

Subscription Fees: the applicable subscription fees payable by the Customer to Viddyoze for the Customer’s chosen Subscription, payable in accordance with clause 6.

Subscription Options: means the available subscription options, being:

• (a) the One Time Licence;
• (b) Template Club; and
• (c) Template Club Plus,

and any further subscription options that may be made available from Viddyoze from time to time. This does not include Viddyoze’s “White Label” subscription option that is advertised via the Site; that White Label subscription option is subject to Viddyoze’s White Label Terms and Conditions.

Subscription Term: has the meaning given in clause 4.5(a) or clause 4.6(a), dependent on the Subscription.

Templates: means the video templates and other digital content and deliverables created by Viddyoze and made available or otherwise provided to the Customer via the Platform in accordance with the applicable Subscription.

Template Bank: means Viddyoze’s bank of Templates which may be accessible to the Customer, subject to the Subscription.

Template Club: means the template club Subscription Option, the details, features and benefits of which are as further particularised within these Terms and the Promotional Materials.

Template Club Plus: means the template club plus Subscription Option, the details, features and benefits of which are as further particularised within these Terms and the Promotional Materials.

Terms: means these standard terms and conditions, as varied from time to time in accordance with clause 19.

User Area: means the applicable area of the Platform to which the Customer is granted access in accordance with its Subscription and in order to use the Services.

Viddyoze: Viddyoze Limited, incorporated and registered in England and Wales with company number 09776043 and whose registered office is at Unit 1&2, Dollywaggon Way, South Rings, Bamber Bridge, Preston, PR5 6EW.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: any weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

Website Terms of Use: means Viddyoze’s Website Terms of Use policy, available at https://viddyoze.com/terms/website-terms, as amended from time to time.

1.2 In this Agreement, the following rules of interpretation apply:

• (a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
• (b) A reference to a party includes its personal representatives, successors or permitted assigns.
• (c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
• (d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
• (e) A reference to writing or written includes emails.
• (f) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

2. Formation of Contract

2.1 These Terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Where the Customer is a Consumer, this means that these Terms will take precedence over any different terms that the Customer seeks to incorporate.

2.2 Any Proposal issued by Viddyoze shall remain valid for a period of 30 days from the date specified on it (Order Period). Under this clause 2.2, the Customer shall be required to raise its Order within the Order Period.

2.3 Where the Customer wishes to purchase the Services on the basis of Viddyoze’s published price list (which is contained on the Site), then the Customer shall also be required to raise an Order for such Services.

2.4 An Order can be raised in the following ways:

• (a) if the Order is being raised on the basis of Viddyoze’s published price list, via the site; or
• (b) in writing, in accordance with clause 15.

2.5 The Order constitutes an offer by the Customer to purchase the Subscription in accordance with these Terms and shall not incorporate any other terms and conditions beyond those set out in the Agreement. The Customer is responsible for ensuring and warrants that the Customer’s chosen Subscription and any terms outlined in the published price list, Proposal, Order and any applicable Specification are complete, accurate and suited for the Customer’s intended use.

2.6 Viddyoze may reject any Order at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted when Viddyoze’s authorised representative issues a written acceptance of the Order, at which point the Agreement shall come into existence (Commencement Date).

2.7 Any samples, drawings, descriptive matter or advertising produced by Viddyoze and any descriptions or illustrations contained in the Promotional Materials are produced for the sole purpose of giving an approximate idea of the Services different Subscription Options. They shall not form part of the Agreement nor have any contractual force.

2.8 Viddyoze’s employees or agents are not authorised to make any representations concerning the Subscription unless confirmed by Viddyoze in writing. In entering into the Agreement, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

3. Provision of The Services – Special Attention is Drawn to This Clause

3.1 In accordance with the Customer’s desired Subscription Option, Viddyoze warrants that it shall provide the Services with reasonable care and skill and substantially in accordance with these Terms. During the applicable Subscription Term the Customer warrants that it (and the Authorised User using the Services on its behalf) will use the Templates in accordance with these Terms.

3.2 Viddyoze shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

• (a) planned maintenance carried out during the maintenance window of 7am and 12 noon UK GMT; and
• (b) unscheduled maintenance performed outside Business Hours, provided that Viddyoze shall use reasonable endeavours to provide the Customer with at least 3 hours’ notice in advance (such notice not being required in the event of an emergency),

however, given the nature of the Services and reliance upon third-party providers (for example, network providers), Viddyoze makes no warranty and provides the Customer with no assurance that the Services will remain fault free and uninterrupted throughout the Term.

3.3 Where the Customer experiences any technical issues regarding the Services, it shall contact Viddyoze via the following:

• (a) the “Chat” function via the Site; or
• (b) email at support@viddyoze.com, and

Viddyoze shall use reasonable endeavours to respond to any such contact within a reasonable period following its receipt and in any event, not outside of Business Hours.

3.4 Viddyoze shall have no responsibility for reviewing and auditing the suitability of the Customer’s operating system in order for the Customer to receive the Services, Templates or Documentation, such being the sole responsibility of the Customer.

4. Grant of Licence and Term – Special Attention is Drawn to This Clause

PART 1 – GENERAL

4.1 Subject to the Customer not being in breach of its payment obligations under clause 6, the restrictions set out in this clause 4 and the other terms and conditions of the Agreement, Viddyoze hereby grants the Customer a non-exclusive, non-transferable, non-sublicensable licence to receive the Services and use the Templates appearing on the Platform from time to time via the User Area.

4.2 The scope of the licence granted under this clause 4 is subject to the Customer’s status as either a Business or a Consumer and the extent of the Subscription.

4.3 Where the Customer is a Business or a Consumer, it may (in addition to any further rights as set out within the applicable part of this clause 4, below):

• (a) access and use all the Templates (available pursuant to the Subscription) for its own personal purposes;
• (b) make copies of any Templates; and
• (c) modify, amend, transpose and otherwise make derivative works from the Templates (including, where applicable, any Documentation), including incorporating the Customer Materials within the Templates (“Derivative Works”),

however, for the avoidance of doubt, where the Customer is a Consumer, it shall have no rights under any Subscription to create Derivative Works on behalf of third parties or sell such Derivative Works to the same third parties or any other third party.

4.4 In addition to the rights granted under clause 4.3, where the Customer is a Business, it may also:

• (a) access and use all the Templates (available pursuant to the Subscription) for business purposes;
• (b) use Derivative Works in any way with the Customer’s Business; and
• (c) create Derivative Works on behalf of third parties and sell such Derivative Works to the same third parties or any other third party.

PART 2 – ONE TIME LICENCE

4.5 Where the Customer’s Subscription is for the One Time Licence:

• (a) the licence granted under this clause 4 shall commence on the Commencement Date and shall continue, unless otherwise terminated in accordance with clause 14, indefinitely (“Subscription Term”);
• (b) the Customer shall throughout the Subscription Term and via the User Area, be granted access to the advertised number of available Templates from the Template Bank in order to exercise the rights granted under clause 4.3 and clause 4.4 (as the case may be) and this clause 4.5; and
• (c) the Customer will be given the ability to make use of only one Template and render only one Derivative Work at any given time via the User Area.

PART 3 – TEMPLATE CLUB AND TEMPLATE CLUB PLUS

4.6 Where the Customer’s Subscription is for Template Club or Template Club Plus, the licence granted under this clause 4 shall commence on the Commencement Date and shall continue, unless otherwise terminated in accordance with clause 14, for either:

• (a) 1 month or 12 months, as selected by the Customer upon making a Subscription; or
• (b) any other period of time as agreed in writing between the parties,

the “Initial Term”.

4.7 At the end of the Initial Term and, thereafter, the Agreement shall automatically renew for successive periods of an equal length to the Initial Term (each a “Renewal Period”), unless either party notifies the other party of termination, in writing:

• (a) at least 30 days before the end of the Initial Term or any Renewal Period (where the Initial Term or Renewal Period is for 12 months); or
• (b) at least 3 Business Days before the end of the Initial Term or any Renewal Period (where the Initial Term or Renewal Period is for less than 12 months,

in which case the Agreement will terminate upon the expiry of the applicable Initial Term or Renewal Period (where the Initial Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”).

4.8 Where the Customer fails to notify Viddyoze of its termination of the Agreement prior to the end of the Initial Term or any applicable Renewal Period in accordance with clause 4.7, such that a further Renewal Period is entered into, the Customer shall be responsible for payment of the applicable Subscription Fees for the duration of that Renewal Period.

4.9 Where the Customer’s Subscription is for Template Club or Template Club Plus:

• (a) the Customer shall throughout the Subscription Term and via the User Area, be granted access to all Templates made available by Viddyoze via the Template Bank from time-to-time in order to exercise the rights granted under clause 4.3 and clause 4.4 (as the case may be) and this clause 4.9; and
• (b) the Customer shall be granted access to the further functionalities in respect of its chosen Subscription Option, as are further described within the Promotional Materials.

4.10 Where the Subscription is for:

• (a) Template Club, the Customer shall be given the ability to make use of only one Template and accordingly render only one Derivative Works; or.
• (b) Template Club Plus, the Customer shall be given the ability to make use of up to three Templates and accordingly render up to three Derivative Works,

at any given time via the User Area.

PART 4 – UPGRADES AND DOWNGRADES TO THE SUBSCRIPTION

4.11 Subject always to availability and Viddyoze’s consent (such consent to not be unreasonably withheld or delayed by Viddyoze), the Customer shall at any time during the Initial Term (or any Renewal Term, as the case may be) be entitled to upgrade its Subscription, providing always that the Customer shall be required to pay to Viddyoze any applicable Subscription Fees in respect of that upgrade.

4.12 The Customer may downgrade its Subscription by providing not less than 3 Business Days’ notice of such to Viddyoze, but, unless otherwise agreed in writing with Viddyoze, such reduction will not take effect until the following Renewal Period and the Customer will still be responsible for the full Subscription Fees applicable to its Subscription for the remainder of the Initial Term (or Renewal Period, as the case may be).

5. Authorised Users Subscriptions

5.1 In order for the Customer to exercise the rights granted under clause 4, Viddyoze hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised User to use the Services and the Documentation during the Subscription Term solely for the purposes set out in clause 4.

5.2 In relation to the Authorised User, the Customer undertakes (if the Customer is a Consumer, an undertaking is a contractual condition which, if breached, may allow Viddyoze to terminate the Agreement and claim damages) that:

• (a) unless otherwise permitted in writing by Viddyoze, only one Authorised User shall be permitted to access and use the Services and the Documentation;
• (b) the Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that the Authorised User shall keep their password confidential;
• (c) it shall permit Viddyoze or Viddyoze’s auditor to audit the Services in order to establish the name and password of the Authorised User and the Customer’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at Viddyoze’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
• (d) if any of the audits referred to in clause 5.2(c) reveal that any password has been provided to any individual who is not the Authorised User, then without prejudice to Viddyoze’s other rights, the Customer shall promptly disable such passwords and Viddyoze shall not issue any new passwords to the former Authorised User; and
• (e) if any of the audits referred to in clause 5.2(c) reveal that the Customer has underpaid Subscription Fees to Viddyoze, then without prejudice to Viddyoze’s other rights, the Customer shall pay to Viddyoze an amount equal to such underpayment as calculated in accordance with Viddyoze’s current published price list.

5.3 The Customer further undertakes that it shall, and that the Authorised User shall, comply at all times with the Website Terms of Use and the Acceptable Use Policy. The Customer’s breach of this undertaking is a material breach of the Agreement (which will allow Viddyoze, at is discretion, to terminate the Agreement).

5.4 The Customer (and any Authorised User) shall not access, store, distribute or transmit any Viruses, or any Customer Materials during the course of its use of the Services that:

• (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
• (b) facilitates illegal activity;
• (c) depicts sexually explicit images;
• (d) promotes unlawful violence;
• (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
• (f) is otherwise illegal or causes damage or injury to any person or property,

and Viddyoze reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any Services or Documentation that breaches the provisions of this clause.

5.5 The Customer undertakes that it shall not (and that any Authorised User shall not):

• (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
  • (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software and/or Documentation (as applicable) in any form or media or by any means; or
  • (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
• (b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
• (c) use the Services and/or Documentation to provide services to third parties; or
• (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised User, or
• (e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5; or
• (f) introduce or permit the introduction of, any Virus or Vulnerability into the Site and Viddyoze’s network and information systems.

5.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Templates, Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Viddyoze.

6. Fees and Payment – Special Attention is Drawn to This Clause

6.1 Unless otherwise agreed in writing between the parties, the Customer shall be required to pay any applicable Subscription Fees due to Viddyoze in accordance with this clause 6.

6.2 On the Commencement Date, the Customer undertakes that it will provide Viddyoze with valid, up-to-date and complete credit or debit card details and any other relevant valid, up-to-date and complete contact and billing details in order for Viddyoze to set up either a direct debit or a recurring payment in respect of the applicable Subscription Fees (and the Customer expressly consents to Viddyoze setting up a direct debit or a recurring payment for the collection of the Subscription Fees).

6.3 Any change to the details provided under clause 6.2 shall be promptly notified by the Customer to Viddyoze.

6.4 The applicable Subscription Fees shall be paid by the Customer in accordance with the payment terms and on the dates set out in:

• (a) Viddyoze’s published price list contained on the Site; or
• (b) the Proposal,

as the case may be (depending on the basis on which the Agreement is formed). The applicable Subscription Fees for the Template Club and Template Club Plus Subscription Options shall, unless otherwise agreed in writing, be paid by the Customer on a recurring monthly basis from the Commencement Date.

6.5 Unless otherwise stated in writing by Viddyoze, the Subscription Fees are exclusive of value added tax and, where applicable, any sales tax (or any equivalent form of tax in any jurisdiction).

6.6 Where the Customer is a Business, it shall pay all amounts due under this Agreement in full, without deduction, withholding, set-off or counterclaim.

6.7 In the event that Viddyoze has not received payment of any due Subscription Fees by the due date for payment and without prejudice to any other rights or remedies of Viddyoze:

• (a) where Viddyoze makes 3 unsuccessful attempts to take payment of the Subscription Fees, Viddyoze may suspend or otherwise disable the provision of, or cease to provide any or all of the Services whilst the relevant Subscription Fees concerned remain unpaid; and
• (b) without prejudice to clause 6.7(a), the Customer shall be required to pay daily interest on any overdue payments at a rate of up to:
  • (i) 8% per annum where the Customer is a Business; or
  • (ii) 1% per annum where the Customer is a Consumer,

  above the Bank of England’s base rate from time to time in force, from the date on which such amount was payable until such amount is paid (both before and after any judgement).

7. Cancellation – This Clause is Particularly Relevant for Consumers, However The Provisions Also Apply to Businesses

7.1 Without prejudice to the 2013 Regulations:

• (a) only New Customers shall be able to benefit from the cancellation provisions contained in this clause 7; and
• (b) the Customer shall have no right to cancel any upgrade that it has made to its Subscription pursuant to clause 4.11.

7.2 Where the Customer is a Consumer, under the 2013 Regulations, the Customer has a period of 14 days beginning on the Commencement Date in order to change its mind and bring the Agreement to an end.

7.3 The rights granted to the Customer under this clause 7 are in addition to and do not attempt to lessen or restrict the Customer’s rights under the 2013 Regulations. Furthermore, where the Customer is a Business, it shall also be able to benefit from the cancelation provisions under this clause 7.

7.4 The Customer shall have an enhanced right to change its mind and terminate the Agreement for a thirty (30) day period following the Commencement Date. Where the Customer exercises its right under this clause 7.4, Viddyoze shall refund any Subscription Fees previously paid by the Customer within fourteen (14) days of termination.

7.5 Where the Customer is a Consumer, under the 2013 Regulations, Viddyoze cannot provide the Services for 14 days following the Commencement Date unless the Customer has expressly requested that the Services are provided. In raising an Order, unless otherwise stated within that Order, such is deemed to include the express request that Viddyoze provides the Services immediately following the Commencement Date.

7.6 The 2013 Regulations set out that where services are performed or digital content is supplied within the typical 14-day cancellation period following an express request to do so, the supplier is entitled to receive payment for such services or digital content, making appropriate deductions to any refund. Under this Agreement, Viddyoze will not make any deductions to any refund due to the Customer, providing always that on exercising its right to cancel, the Customer:

• (a) acknowledges that the Agreement (and, consequently, its Subscription) will immediately terminate;
• (b) as a consequence of clause 7.6(a), any licence granted under the Agreement immediately ceases; and
• (c) in addition to complying with its other obligations under clause 14 (where applicable), the Customer shall return or destroy all Templates and Documentation and certify to Viddyoze (if requested by Viddyoze) that such has taken place.

7.7 For the avoidance of doubt, where the Customer exercises its right to cancel under this clause 7, the Customer warrants that it has not exercised any of the rights that would have otherwise been granted to it under clause 4 of this Agreement.

7.8 Where Viddyoze becomes aware of any breach of clause 7.6 or clause 7.7, Viddyoze reserves its right to make an appropriate deduction to any refund that is due to the Customer or, if a refund has already been provided, invoice the Customer to reflect the Customer’s use of the Services. An invoice raised under this clause 7.8 shall be paid within 30 days of its date to the bank account nominated in writing by Viddyoze.

7.9 Where the Customer is a Business, it shall indemnify Viddyoze, keep Viddyoze indemnified and hold Viddyoze harmless against any losses suffered by Viddyoze as a result of the Customer’s breach of this clause 7.

8. Intellectual Property Rights

8.1 The parties agree that any and all Intellectual Property Rights in or arising out of or in connection with the Templates, Services and the Documentation shall be owned by Viddyoze (or its licensors) and that for the avoidance of doubt any and all Intellectual Property Rights remain in the possession of Viddyoze (or its licensors) at all times, do not transfer to the Customer and the Customer is not permitted to make an onward sale or transfer of the Templates, Services or the Documentation (or any part thereof), to any third party without the prior written consent of Viddyoze (or its licensors).

8.2 Viddyoze hereby grants a non-exclusive, royalty-free, revocable licence to the Customer to make use of the Intellectual Property Rights referred to in clause 8.1 strictly for and limited to making use of the Services, as is particularised within clause 4.

8.3 All Intellectual Property Rights in the Customer Materials shall be owned by the Customer and the Customer warrants and undertakes that it has all rights, title and interest in the Customer Materials as is necessary in order to grant the licence to Viddyoze pursuant to clause 8.4.

8.4 The Customer hereby grants a non-exclusive, royalty-free, irrevocable licence to Viddyoze for the following purposes:

• (a) performing the Services;
• (b) Viddyoze’s promotional and marketing purposes;
• (c) training; and
• (d) any further internal purpose of Viddyoze,

providing always that the Customer’s status as Customer shall be appropriately referenced by Viddyoze in exercising the rights under this clause 8.4.

8.5 The Customer shall use all reasonable endeavours to prevent any infringement of Viddyoze’s Intellectual Property Rights and shall promptly report to Viddyoze any such infringement that comes to its attention. In particular, the Customer shall:

• (a) ensure that the Authorised User, before starting to use the Services, is made aware that it is proprietary to Viddyoze and that it may only be used and copied in accordance with this Agreement; and
• (b) implement suitable disciplinary procedures for employees (or the Authorised User) who make unauthorised use or copies of the Services, save to the extent provided for by this Agreement.

8.6 Subject always to clause 13 (where the Customer is a Business) and the Customer’s compliance with this clause 8, Viddyoze shall indemnify the Customer, keep the Customer indemnified and hold the Customer harmless against any Losses (including any reasonably incurred legal costs, providing that such costs are approved in advance by Viddyoze) suffered by the Customer arising out of any claim that the Templates, Services or Documentation infringe any third party’s Intellectual Property Rights (IPR Claim), provided that:

• (a) Viddyoze is given prompt notice of any IPR Claim;
• (b) the Customer, if notified by Viddyoze in writing, ceases its use of the Templates, Services or Documentation that has given rise to the IPR Claim;
• (c) the Customer provides Viddyoze with reasonable co-operation in the defence and settlement of any IPR Claim, at Viddyoze’s expense;
• (d) Viddyoze is given sole authority to defend or settle the IPR Claim; and
• (e) the Customer makes no admissions of liability in respect of the IPR Claim, unless authorised in writing by Viddyoze to do so.

8.7 In the defence or settlement of any IPR Claim, Viddyoze may procure the right for the Customer to continue using the Services, replace or modify the Templates, Documentation and/or Services so that they become non-infringing or, if such remedies are not reasonably available, immediately terminate the Agreement without any liability to the Customer whatsoever for any Losses suffered by the Customer as a result, save that any Subscription Fees paid in advance for Services not yet delivered will be refunded promptly by Viddyoze.

8.8 The Customer agrees to accept any replacement or modified Services under clause 8.7, providing always that any such replacement or modification of the Services does not breach Viddyoze’s obligations under clause 3.1.

8.9 In no event will Viddyoze be liable under the indemnity contained in clause 8.6 to the extent that the IPR Claim is based on or arises as a consequence of:

• (a) the Customer’s use of the Customer Materials with the Services or Documentation;
• (b) a modification of the Services or Documentation by anyone other than Viddyoze; or
• (c) the Customer uses the Services or Documentation in a manner contrary to the instructions provided to the Customer by Viddyoze; or
• (d) the Customer continues to use the Services or Documentation after notice of the alleged or actual IPR Claim from any third-party, us or any appropriate authority.

8.10 The foregoing and clause 13 (where the Customer is a Business) set out the Customer’s sole and exclusive rights and remedies, and Viddyoze’s entire obligations and liability, for infringement of any Intellectual Property Right.

9. Confidentiality

9.1 Each party agrees and undertakes that it shall maintain the confidentiality of and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party the other party’s Confidential Information and shall not, without the prior written consent of the other party, use, disclose, copy or modify such Confidential Information or permit others to do so other than as necessary for the performance of its right and obligations under the Agreement.

9.2 Each party shall:

• (a) disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement, and
• (b) to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.

9.3 Each party shall:

• (a) give notice to the other party of any unauthorised misuse, disclosure, theft or loss of its Confidential Information immediately upon becoming aware of the same;
• (b) take all reasonable steps to maintain the confidentiality of the Confidential Information;
• (c) maintain adequate security measures to safeguard the Confidential Information from theft, and from access by any person other than as permitted by this Agreement;
• (d) except as expressly permitted under Section 50B of the Copyright, Designs and Patents Act 1988 not copy, alter, modify or adapt the Confidential Information in any way whatsoever, or permit the Services to be combined with or to become incorporated in any other programs unless carried out by Viddyoze, or decompile or disassemble the executable code version of any Services, or attempt to do or permit the doing of any of these things;
• (e) not (and the Customer shall use its best endeavours to procure that no person other than its personnel will) access, use, copy, alter, modify or adapt any source code; and.
• (f) promptly bring to the other party’s attention any infringement of its rights in, or any unauthorised use of, the Confidential Information, which it becomes aware of.

9.4 The provisions of this clause shall not apply to information which is:

• (a) or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
• (b) lawfully received by the other party from a third party free of any obligation of confidence at the time of its disclosure;
• (c) independently developed by the recipient, without access to or use of such information; or
• (d) required by law, by court or governmental or regulatory order to be disclosed provided that the other party is, where possible, notified at the earliest opportunity.

9.5 Whilst Viddyoze may publicly announce that a business relationship has been entered into with the Customer, Viddyoze shall not, without the prior written consent of the Customer not to be unreasonably withheld or delayed publicise the details or terms of this Agreement or use the Customer’s name or brand in the context of endorsing the quality of its work.

10. Data Protection

10.1 Both parties will comply with all applicable requirements of the DP Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the DP Legislation.

10.2 The parties acknowledge that for the purposes of the DP Legislation, the Customer is the Controller and Viddyoze is the Processor.

10.3 Without prejudice to the generality of clause 10.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Viddyoze and/or lawful collection of the Personal Data by Viddyoze on behalf of the Customer for the duration and purposes of the Agreement.

10.4 Any Personal Data provided to Viddyoze under the Agreement shall be processed in accordance with the Privacy Notice.

11. Anti-Bribery

11.1 Viddyoze shall:

• (a) comply with all applicable laws, statutes, and regulations relating to bribery and corruption (collectively, the Anti-Bribery Laws) including but not limited to the UK Bribery Act 2010;
• (b) ensure that its associated persons (as defined in the UK Bribery Act 2010 and related guidance) comply with the Anti-Bribery Laws;
• (c) comply with such of the Customer’s policies relating to bribery and corruption as may be notified to Viddyoze from time to time (the Anti-Bribery Policies), providing always that the Anti-Bribery Policies are:
  • (i) compliant with; and
  • (ii) no more onerous than,
• (d) implement and maintain its own policies, procedures and controls, including but not limited to ‘adequate procedures’ (as defined in the Bribery Act 2010 and related guidance), to ensure compliance by itself and its associated persons with the Anti-Bribery Laws and the Anti-Bribery Policies, and shall enforce them where appropriate; and
• (e) promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by Viddyoze in connection with its performance pursuant to this Agreement.

12. Viddyoze’s Liability – This Clause Only Applies Where The Customer is a Consumer and Special Attention is Drawn to This Clause

12.1 Under the Consumer Rights Act 2015, Viddyoze has a legal obligation to:

• (a) provide any Services with reasonable care and skill; and
• (b) ensure that any digital content (such as, for example, the Templates) provided is:
  • (i) satisfactory;
  • (ii) fit for purpose; and
  • (iii) as described, and

nothing in these Terms seeks to limit Viddyoze’s legal obligations under the Consumer Rights Act 2015.

12.2 Without prejudice to clause 12.1, the Customer has the obligation under:

• (a) clause 2.5 to ensure that is Subscription and any terms outlined in Viddyoze’s published price list, the Proposal and the Customer’s Order are complete, accurate and suited for the Customer’s intended use; and
• (b) clause 3.4 to ensure that its operating systems are suitable in order for the Customer to receive the Services, and

unless otherwise established by the Customer, Viddyoze shall have no liability under clause 12 where the performance of its obligations under the Agreement would have otherwise been compliant, but for the Customer’s breach of its obligations under clause 2.5 and clause 3.4 (or the Customer’s further obligations under the Agreement).

12.3 Viddyoze shall only be responsible for loss or damage suffered by the Customer that is a foreseeable result of any failure by Viddyoze to comply with the Contract but, except as set out in clause 12.4, Viddyoze shall not be responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both parties knew it might happen, for example, if it was referenced within the Order.

12.4 Viddyoze does not exclude or limit in any way its liability to the Customer where it would be unlawful to do so. This includes liability for death or personal injury caused by Viddyoze’s negligence or the negligence of Viddyoze’s employees, agents or subcontractors or for fraud or fraudulent misrepresentation.

12.5 Further, more detailed, advice regarding the Consumer Rights Act 2015 and the rights that a Consumer has, can be found via the Citizens Advice website at www.adviceguide.org.uk.

13. Indemnity and Limitation of Liability – This Clause Only Applies Where The Customer is a Business and Special Attention is Drawn to This Clause

13.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract, breach of statutory duty or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause.

13.2 The Customer assumes sole responsibility for results obtained from the use of the Services and for any conclusions drawn from such use. Viddyoze shall have no liability for any Losses caused as a result of the Customer Materials or information provided to Viddyoze by the Customer in connection with the Services, or any actions taken by Viddyoze at the Customer’s direction.

13.3 Subject to sub-clause 13.5, Viddyoze shall not be liable to the Customer or any third party arising out of or in connection with this Agreement:

• (a) for any Losses in excess of the sum of all Subscription Fees paid or payable to Viddyoze by the Customer under this Agreement in the preceding twelve (12) months; and
• (b) for any:
  • (i) consequential, indirect or special Losses;
  • (ii) loss of profit;
  • (iii) loss of contract or business;
  • (iv) loss of opportunity;
  • (v) loss of savings, discount or rebate (whether actual or anticipated);
  • (vi) damage to, loss or corruption of data;
  • (vii) harm to reputation or loss of goodwill; and/or
  • (viii) any other Losses of a pure economic nature.

13.4 The Customer shall indemnify Viddyoze, keep Viddyoze indemnified and hold Viddyoze harmless from and against any and all Losses (including any direct, indirect, special or consequential Loss, loss of profit, loss of business, contract, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Viddyoze arising out of or in connection with:

• (a) the Customer’s breach of this Agreement howsoever arising;
• (b) any wilful or negligent act or omission of the Customer, its officers, employees, contractors or agents (including, for the avoidance of doubt, the Authorised User); and
• (c) the Customer’s (and Authorised User’s) use of the Services.

13.5 The exclusions and limitations of liability set out in this clause shall not apply in respect of:

• (a) death or personal injury;
• (b) fraud or fraudulent misrepresentation; or
• (c) any other Losses which cannot be excluded or limited by applicable law.

14. Term and Termination

14.1 Without prejudice to clause 14.2, Viddyoze may terminate the Agreement on providing 5 Business Days’ written notice to the Customer. Where the Agreement is terminated by Viddyoze pursuant to this clause 14.1, Viddyoze shall refund any Subscription Fees paid by the Customer on a pro-rata basis.

14.2 Viddyoze may terminate this Agreement (in full or in relation to any individual or combination of Services) immediately by written notice to the Customer in the event that:

• (a) the Customer fails to pay any undisputed amounts due to Viddyoze;
• (b) the Customer commits any breach of this Agreement that is irremediable or, if remediable, is not remedied by the Customer within fourteen (14) days’ of receipt of Viddyoze’s written notice specifying the breach and requiring its remedy; or
• (c) any regulatory decision or governmental order requiring Viddyoze to suspend or terminate the provision of its obligations under this Agreement.

14.3 Either party may terminate this Agreement in accordance with clause 4.7.

14.4 Either party may terminate this Agreement (in full or in relation to any individual or combination of Services) immediately by written notice to the other in the event that:

• (a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
• (b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
• (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
• (d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
• (e) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
• (f) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
• (g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within fourteen (14) days;
• (h) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3(a) to clause 14.2(g) (inclusive); or
• (i) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.5 In any circumstance in which Viddyoze may terminate any or any portion of this Agreement, it may exercise its right to suspend performance of any of its obligations. Such exercise of the right to suspend shall:

• (a) be without liability to the Customer; and
• (b) not function as a waiver of any right of termination that Viddyoze may have under this Agreement.

14.6 On termination of this Agreement by Viddyoze, all licences granted by Viddyoze under this Agreement shall terminate immediately and the Customer shall return to Viddyoze the relevant licences and/or Documentation and all copies of the relevant documentation or, if requested by Viddyoze, destroy them and certify in writing to Viddyoze that they have been destroyed.

14.7 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of any person at any time up to the date of termination and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.

15. Notices

15.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next Business Day delivery service, or by commercial courier or email.

15.2 A notice or other communication shall be deemed to have been received if:

• (a) delivered personally, when left at the address referred to in clause 15.1;
• (b) sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
• (c) delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
• (d) sent by email, one Business Day after transmission.

15.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16. Force Majeure

16.1 Provided it has complied with clause 16.2, if Viddyoze is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, Viddyoze shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

16.2 Viddyoze shall:

• (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the Customer in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
• (b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

16.3 If the Force Majeure Event prevents, hinders or delays Viddyoze’s performance of its obligations for a continuous period of more than two (2) months, the Customer may terminate this agreement by giving two (2) weeks’ written notice to Viddyoze.

17. No Partnership or Agency

17.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other.

17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

18. Entire Agreement

18.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

19. Variation

19.1 Viddyoze may amend or otherwise vary these Terms from time to time on providing not less than 30 days’ written notice to the Customer, which such amendment or variation to take place from the commencement of the upcoming Renewal Period. Where the Customer does not accept any variation pursuant to this clause 19.1, the Customer may terminate this Agreement, which such termination taking place at the end of the Initial Term or Renewal Period (as the case may be).

19.2 No other variation of these Terms or the Agreement will be valid unless it is in writing and signed by both parties (save where, for example, the Subscription is varied pursuant to these Terms).

20. Assignment and Other Dealings

20.1 This Agreement is personal to the Customer and the rights and obligations hereunder may not be assigned, sub-contracted or transferred to a third party without the prior written approval of Viddyoze.

20.2 Viddyoze may assign, sub-contract or otherwise transfer its rights and obligations hereunder without the Customer’s prior written consent.

21. No Automatic Waiver

21.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

21.2 No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

22. Severance

22.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

22.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

23. Third Party Rights

No one other than a party to this Agreement shall have any right to enforce any of its terms.

24. Governing Law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

25. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).