Viddyoze White Label Terms and Conditions
1. Definitions and Interpretation
1.1 Defined words and expressions used in this Agreement shall take the following meanings:
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 Licensee for the provision of the Services, comprised of the Proposal, the Order, the Service Agreement and these Terms.
Authorised User(s): the person(s) authorised to access the Services by the Licensee in accordance with clause 5.
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.
Cancellation Period: means the period of 30 days from the Commencement Date.
Commencement Date: has the meaning in clause 2.8.
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.
Derivative Works: has the meaning given in clause 4(c).
Documentation: the documentation made available to the Customer via the Platform 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 to it in clause 15.1.
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 9.6.
Licensee: means the entity that wishes to purchase the Services and that is entering into the Agreement.
Licensee Materials: the content, images, logos, text or other materials or multimedia uploaded to the Templates by the Licensee, Authorised Users or Viddyoze on the Licensee’s behalf for the purpose of using, developing or maintaining any Derivative Works or using the Services or facilitating the Licensee’s or any Authorised User’s use of the Services.
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 an individual or entity that has not previously purchased the Services (or any other services advertised) from Viddyoze.
Order: the Licensee’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: any proposal, quotation and/or specification issued to the Licensee 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 to it in clause 15.2.
Services: the services provided by Viddyoze to the Licensee via the Platform (including the right to resell the Templates on a white label basis) under the Agreement and create Derivative Works, as more particularly described in the Documentation and these Terms.
Services Agreement: means, where applicable, any covering agreement to which these Terms are attached, including variables pertaining to these Terms and the Services to be provided by Viddyoze and which the parties sign to signify their agreement to this Agreement.
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 Fees: the applicable subscription fees payable by the Customer to Viddyoze in consideration for the provision of the Services, payable in accordance with clause 8.
Templates: means the video templates and other digital content and deliverables created by Viddyoze and made available or otherwise provided to the Licensee to make available (including by resale) to the Authorised Users on a white label basis via the Platform.
Template Bank: means Viddyoze’s bank of Templates which may be accessible to the Licensee, subject to the Subscription.
Term: shall have the meaning given to it in clause 15.2.
Terms: means these standard terms and conditions, as varied from time to time in accordance with clause 20.
User Area: means the applicable area of the Platform to which the Licensee (and the Authorised Users) is granted access in order to use the Services.
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.
1.2 In the 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.
1.3 If the event of any conflict or inconsistency between:
- (a) the Services Agreement;
- (b) any Proposal;
- (c) these Terms; and
- (d) the Order,
the provisions in the document named first in this clause 1.3 shall prevail to the extent of such conflict or inconsistency.
2. Formation of Contract
2.1 These Terms apply to the Agreement to the exclusion of any other terms that the Licensee seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
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 Licensee shall be required to raise its Order within the Order Period.
2.3 Where the Licensee wishes to purchase the Services on the basis of Viddyoze’s published price list (which is contained on the Site), then the Licensee 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 16.
2.5 Any Order constitutes an offer by the Licensee to purchase the Services in accordance with these Terms and shall not incorporate any other terms and conditions beyond those set out in the Agreement. The Licensee is responsible for ensuring and warrants that the Services and any terms outlined in the published price list, Proposal, Order and any applicable Specification are complete, accurate and suited for the Licensee’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.
2.7 Viddyoze may otherwise agree to provide the Services on the basis of a Services Agreement to be entered into between the parties.
2.8 The Agreement shall only come into existence on the date that:
- (a) Viddyoze’s authorised representative issues a written acceptance of the Order pursuant to clause 2.6; or
- (b) any Services Agreement has been fully executed by both parties,
2.9 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. They shall not form part of the Agreement nor have any contractual force.
2.10 Viddyoze’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by Viddyoze in writing. In entering into the Agreement, the Licensee 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 Viddyoze warrants that it shall provide the Services with reasonable care and skill and substantially in accordance with these Terms and, where applicable, any Services Agreement.
3.2 During the applicable Term, the Licensee warrants that it (and any Authorised User using the Services on its behalf) will use the Templates and the Platform in accordance with any obligations imposed on it under:
- (a) these Terms;
- (b) the Proposal; and
- (c) any Services Agreement.
3.3 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 Licensee 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 Licensee with no assurance that the Services will remain fault free and uninterrupted throughout the Term.
3.4 Where the Licensee 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 email@example.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.
3.5 Viddyoze shall have no responsibility for reviewing and auditing the suitability of the Licensee’s operating system in order for the Licensee to receive the Services, Templates or Documentation, such being the sole responsibility of the Licensee.
4. Grant of Licence and Term
Subject to the Licensee not being in breach of its payment obligations under clause 8, the restrictions set out in this clause 4 and the other terms and conditions of the Agreement, Viddyoze hereby grants the Licensee a non-exclusive, non-transferable, non-sublicensable licence during the Term and via the User Area to permit the Authorised Users to:
- (a) use the Services and access and use all the Templates for its own personal and/or business purposes (subject to any restrictions contained in the Agreement);
- (b) make copies of any Templates;
- (c) modify, amend, transpose and otherwise make derivative works from the Templates (including, where applicable, any Documentation), including incorporating the Licensee Materials within the Templates (“Derivative Works”);
- (d) use the Derivative Works to promote such Derivative Works to and permit the Authorised Users to access the Derivative Works on the Platform and use in accordance with the Agreement such of the Services as have been integrated into those Derivative Works; and
- (e) to use the Software for the purposes set out in clause 4(a) to clause 4(d).
5. Authorised Users
5.1 In order for the Licensee to exercise the rights granted under clause 4, Viddyoze hereby grants to the Licensee a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Term solely for the purposes set out in clause 4.
5.2 Unless otherwise:
- (a) specified within the:
- (i) Services Agreement; or
- (ii) Proposal; or
- (b) agreed in writing between the parties,
the number of Authorised Users shall, at the Commencement Date, be limited to 10 individuals.
5.3 The Licensee may, at any time during the Term and via the Platform or on request to Viddyoze in writing, request that the number of Authorised Users be increased. Such increase is subject always to the agreement of Viddyoze and is strictly on the basis that the Licensee shall pay any additional Subscription Fees as notified to it by Viddyoze.
5.4 Where the Licensee wishes to reduce the number of Authorised Users, it must request such in writing from Viddyoze. For the avoidance of doubt, unless otherwise agreed in writing by Viddyoze, any reduction to the number of Authorised Users under this clause 5.4 shall not reduce the applicable Subscription Fees payable by the Licensee under the Agreement.
5.5 In relation to the Authorised Users, the Licensee undertakes that:
- (a) only the Authorised Users referred to under this clause 5 shall be permitted to access and use the Services and the Documentation;
- (b) the Authorised Users 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 Users shall keep their password confidential;
- (c) it shall disable any Authorised User’s access to the Services and the Documentation promptly upon:
- (i) termination or suspension of such Authorised User’s employment or services contract with the Licensee; or
- (ii) any agreed reduction to the number of Authorised Users under clause 5.4;
- (d) it shall maintain a written, up-to-date list of current Authorised Users and provide such list to Viddyoze within five Business Days of Viddyoze’s written request at any time or times;
- (e) it shall permit Viddyoze or Viddyoze’s auditor to audit the Services in order to establish the name and password of the Authorised Users and the Licensee’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 Licensee’s normal conduct of business;
- (f) if any of the audits referred to in clause 5.5(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Viddyoze’s other rights, the Licensee shall promptly disable such passwords and Viddyoze shall not issue any new passwords to the former Authorised User; and
- (g) if any of the audits referred to in clause 5.5(e) reveal that the Licensee has underpaid Subscription Fees to Viddyoze, then without prejudice to Viddyoze’s other rights, the Licensee shall pay to Viddyoze an amount equal to such underpayment as calculated in accordance with Viddyoze’s current published price list.
5.7 The Licensee (and each Authorised User) shall not access, store, distribute or transmit any Viruses, or any Licensee 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 Licensee, to disable the Licensee’s access to any Services or Documentation that breaches the provisions of this clause.
- (a) suspend access to the relevant Derivative Works;
- (b) remove the relevant Derivative Works or Licensee Materials from those Derivative Works; and
- (c) if relevant, suspend the relevant Authorised User’s Account and that Authorised User’s access to the relevant Derivative Works, Licensee Materials and User Area.
5.9 The Licensee 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) unless as permitted under the Agreement, 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) unless as permitted under the Agreement, 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 Users, 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.
5.10 The Licensee 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.
5.11 If the Licensee (or any Authorised User) is in breach of its obligations under this clause 5, Viddyoze may (but shall not be obliged to) remove the relevant Licensee Materials from the Derivative Works, and:
- (a) disable the Licensee’s and/or the relevant Authorised User’s access to the Platform, the Services or any material that breaches this clause 5; and
- (b) disable the Services (whether in respect of the Licensee and/or any individual Authorised User, at Viddyoze’s absolute discretion),
for so long as the relevant breach remains unremedied, without liability or prejudice to its other rights and without prior notice to the Licensee or the relevant Authorised User.
5.12 In addition to its rights under clause 5.11 or otherwise under the Agreement, Viddyoze also reserves the right (at its absolute discretion) to treat any breach of this clause 5 as a material breach of the Agreement.
6. Viddyoze’s Obligations
6.1 Viddyoze undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at Clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Viddyoze’s instructions, or modification or alteration of the Services (including the Platform and any Software) by any party other than Viddyoze or Viddyoze’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Viddyoze will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Licensee with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Licensee’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, Viddyoze:
- (a) does not warrant that:
- (i) the Licensee’s use of the Services will be uninterrupted or error-free;
- (ii) the Services, Documentation and/or the information obtained by the Licensee or any Authorised User through the Services will meet the Licensee’s or any Authorised User’s requirements;
- (iii) the Platform or the Services will be free from Vulnerabilities or Viruses; and
- (b) 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, and the Licensee acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 The Agreement shall not prevent Viddyoze from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
6.4 Viddyoze warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
6.5 Viddyoze shall follow its archiving procedures for Derivative Works as set out in its then in force back-up policy, as such policy may be amended by Viddyoze in its sole discretion from time to time. In the event of any loss or damage to any Derivative Works, the Licensee’s sole and exclusive remedy against Viddyoze shall be for Viddyoze to use reasonable commercial endeavours to restore the lost or damaged Derivative Works from the latest back-up of such Derivative Works maintained by Viddyoze in accordance with Viddyoze’s archiving procedures. Viddyoze shall not be responsible for any loss, destruction, alteration or disclosure of Derivative Works (or any Losses that may be suffered by the Licensee as a result) caused by any third party (except those third parties subcontracted by Viddyoze to perform services related to maintenance and back-up of Derivative Works for which it shall remain fully liable).
7. Licensee’s Obligations
7.1 The Licensee shall:
- (a) provide Viddyoze with:
- (i) all necessary co-operation in relation to the Agreement; and
- (ii) all necessary access to such information as may be required by Viddyoze,
in order for Viddyoze to provide the Services, including Licensee Materials, details regarding the Authorised Users, security access information and configuration services;
- (b) without affecting its other obligations under the Agreement, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under the Agreement;
- (c) carry out all other Licensee responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Licensee’s provision of such assistance as agreed by the parties, Viddyoze may (where applicable) adjust any agreed timetable or delivery schedule as reasonably necessary;
- (d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for breach of this agreement caused or contributed to by any acts or omissions on the part of any Authorised User;
- (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Viddyoze, its contractors and agents to perform their obligations under this agreement, including provision of the Services;
- (f) ensure that its network and systems comply with the relevant specifications provided by Viddyoze from time to time;
- (g) be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Viddyoze’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Licensee’s or any Authorised User’s network connections or telecommunications links or caused by the internet;
- (h) as between the parties, be responsible for responding to all third-party requests concerning the use of the Services by the Licensee or any Authorised User.
8. Fees and Payment – Special Attention is Drawn to This Clause
8.1 Unless otherwise agreed in writing between the parties, the Licensee shall be required to pay any applicable Subscription Fees due to Viddyoze in accordance with this clause 8.
8.2 On the Commencement Date, the Licensee 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 Licensee expressly consents to Viddyoze setting up a direct debit or a recurring payment for the collection of the Subscription Fees).
8.3 Any change to the details provided under clause 8.2 shall be promptly notified by the Licensee to Viddyoze.
8.4 The applicable Subscription Fees shall be paid by the Licensee in accordance with the payment terms and on the dates set out in:
- (a) Viddyoze’s published price list contained on the Site;
- (b) the Proposal; or
- (c) the Services Agreement,
as the case may be (depending on the basis on which the Agreement is formed).
8.5 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).
8.6 The Licensee shall pay all amounts due under this Agreement in full, without deduction, withholding, set-off or counterclaim.
8.7 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 8.7(a), the Licensee shall be required to pay daily interest on any overdue payments at a rate of up to 8% per annum 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).
8.8 Viddyoze shall have no responsibility whatsoever where, as a result of the Customer’s payment of the applicable Subscription Fees, the Customer is required to pay any additional fees to its bank (including but by no means limited to overdraft charges and/or international payment charges).
9. Intellectual Property Rights
9.1 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 Licensee and the Licensee 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).
9.2 Viddyoze hereby grants a non-exclusive, royalty-free, revocable licence to the Licensee to make use of the Intellectual Property Rights referred to in clause 9.1 strictly for and limited to making use of the Services, as is particularised within clause 4.
9.3 All Intellectual Property Rights in the Licensee Materials shall be owned by the Licensee and the Licensee warrants and undertakes that it has all rights, title and interest in the Licensee Materials as is necessary in order to grant the licence to Viddyoze pursuant to clause 9.4.
9.4 The Licensee hereby grants a non-exclusive, royalty-free, irrevocable licence to Viddyoze to use the Licensee Materials 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 Licensee’s status as Licensee shall be appropriately referenced by Viddyoze in exercising the rights under this clause 9.4.
9.5 The Licensee 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 Licensee 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 Authorised Users who make unauthorised use or copies of the Services, save to the extent provided for by this Agreement.
9.6 Subject always to clause 13 and the Licensee’s compliance with this clause 9, Viddyoze shall indemnify the Licensee, keep the Licensee indemnified and hold the Licensee harmless against any Losses (including any reasonably incurred legal costs, providing that such costs are approved in advance by Viddyoze) suffered by the Licensee 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 Licensee, 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 Licensee 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 Licensee makes no admissions of liability in respect of the IPR Claim, unless authorised in writing by Viddyoze to do so.
9.7 In the defence or settlement of any IPR Claim, Viddyoze may procure the right for the Licensee 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 Licensee whatsoever for any Losses suffered by the Licensee as a result, save that any Subscription Fees paid in advance for Services not yet delivered will be refunded promptly by Viddyoze.
9.8 The Licensee agrees to accept any replacement or modified Services under clause 9.7, providing always that any such replacement or modification of the Services does not breach Viddyoze’s obligations under clause 3.1.
9.9 In no event will Viddyoze be liable under the indemnity contained in clause 9.6 to the extent that the IPR Claim is based on or arises as a consequence of:
- (a) the Licensee’s use of the Licensee Materials with the Templates, Services or Documentation;
- (b) a modification of the Templates, Services or Documentation by anyone other than Viddyoze; or
- (c) the Licensee uses the Templates, Services or Documentation in a manner contrary to the instructions provided to the Licensee by Viddyoze; or
- (d) the Licensee continues to use the Templates, Services or Documentation after notice of the alleged or actual IPR Claim from any third-party, us or any appropriate authority.
9.10 The foregoing and clause 13 set out the Licensee’s sole and exclusive rights and remedies, and Viddyoze’s entire obligations and liability, for infringement of any Intellectual Property Right.
10.1 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.
10.2 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.
10.3 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 Licensee 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.
10.4 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.
10.5 Whilst Viddyoze may publicly announce that a business relationship has been entered into with the Licensee, Viddyoze shall not, without the prior written consent of the Licensee not to be unreasonably withheld or delayed publicise the details or terms of this Agreement or use the Licensee’s name or brand in the context of endorsing the quality of its work.
11. Data Protection
11.1 Both parties will comply with all applicable requirements of the DP Legislation. This clause 11is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the DP Legislation.
11.2 The parties acknowledge that for the purposes of the DP Legislation, the Licenseeis the Controller and Viddyoze is the Processor.
11.3 Without prejudice to the generality of clause 11.1, the Licensee will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Datato Viddyoze and/or lawful collection of the Personal Data by Viddyoze on behalf of the Licenseefor the duration and purposes of the Agreement.
11.4 Any Personal Data provided to Viddyoze under the Agreement shall be processed in accordance with the Privacy Notice.
12.1 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 Licensee’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,
the obligations imposed on Viddyoze under the Anti-Bribery Laws;
- (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 Licensee 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.
13. Indemnity and Limitation of Liability
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 Licensee 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 Licensee Materials or information provided to Viddyoze by the Licensee in connection with the Services, or any actions taken by Viddyoze at the Licensee’s direction.
13.3 Subject to sub-clause 13.5, Viddyoze shall not be liable to the Licensee 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 Licensee 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 Licensee 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 Licensee’s breach of this Agreement howsoever arising;
- (b) any wilful or negligent act or omission of the Licensee, its officers, employees, contractors or agents (including, for the avoidance of doubt, any Authorised Users); and
- (c) the Licensee’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.
14.1 Providing that it complies with this clause 14 and its respective obligations on termination under clause 15, where the Licensee is a New Customer it shall have a contractual right to cancel the Agreement by serving written notice on Viddyoze within the Cancellation Period and receive a full refund in respect of any Subscription Fees paid.
14.2 Where the Licensee exercises any right to cancel the Agreement in accordance with clause 14.1, Viddyoze shall refund any Subscription Fees paid to it to the bank account nominated in writing by the Licensee within 21 days of the end of the Cancellation Period.
14.3 On cancellation taking place under this clause 14 the Agreement shall automatically terminate and the Licensee warrants and undertakes that it shall (and, where applicable, the Authorised Users shall), in addition to the obligations specified within clause 15:
- (a) immediately return or destroy (at Viddyoze’s election) all Templates and/or Documentation in its possession;
- (b) immediately cease its use of any Derivative Works and irretrievably destroy all physical and electronic copies of such Derivative Works; and
- (c) if required to do so by Viddyoze, confirm its compliance with clause 14.3(a) and clause 14.3(b) in writing.
14.4 Viddyoze shall be under no obligation to make any refund under this clause 14 where it has reasonable grounds to believe that the Licensee has not (or does not intend to) comply with its obligations under clause 14.3 and shall be entitled to demand the repayment of any such refund in the event of any breach by the Licensee of its obligations under this clause.
14.5 The Licensee shall indemnify Viddyoze, keep Viddyoze indemnified and hold Viddyoze harmless in respect of any Losses suffered by Viddyoze as a result of the Licensee’s breach or suspected breach of this clause 14. For the avoidance of doubt, such Losses (for the purposes of this clause 14.5) may include but will by no means be limited to lost Subscription Fees.
15. Term and Termination
15.1 The Agreement shall commence on the Commencement Date and shall, unless otherwise terminated under clause 14 or as provided in this Clause 15, continue for either:
- (a) 1 month or 12 months, as selected by the Customer when raising its Order;
- (b) the period of time specified in the Services Agreement; or
- (c) any other period of time as agreed in writing between the parties,
(the “Initial Term”).
15.2 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 “Term”).
15.3 Without prejudice to clause 15.2, Viddyoze may terminate the Agreement on providing 5 Business Days’ written notice to the Licensee. Where the Agreement is terminated by Viddyoze pursuant to this clause 15.3, Viddyoze shall refund any Subscription Fees paid by the Licensee on a pro-rata basis.
15.4 Viddyoze may terminate this Agreement (in full or in relation to any individual or combination of Services) immediately by written notice to the Licensee in the event that:
- (a) the Licensee fails to pay any undisputed amounts due to Viddyoze;
- (b) the Licensee commits a material breach of this Agreement;
- (c) the Licensee commits any other breach of this Agreement that is remediable, but the Licensee fails to remedy such breach within fourteen (14) days of receipt of Viddyoze’s written notice specifying the breach and requiring its remedy; or
- (d) any regulatory decision or governmental order requiring Viddyoze to suspend or terminate the provision of its obligations under this Agreement.
15.5 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 15.5(a) to clause 15.5(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.
15.6 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 Licensee; and
- (b) not function as a waiver of any right of termination that Viddyoze may have under this Agreement.
15.7 On termination of this Agreement for any reason, all licences granted by Viddyoze under this Agreement shall terminate immediately and the Licensee shall return to Viddyoze the relevant licences, Templates and/or Documentation and all copies of the relevant Templates and/or Documentation or, if requested by Viddyoze, destroy them and certify in writing to Viddyoze that they have been destroyed.
15.8 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.
16.1 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.
16.2 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 16.1;
- (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.
16.3 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.
17. Force Majeure
17.1 Provided it has complied with clause 17.2, 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.
17.2 Viddyoze shall:
- (a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the Licensee 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.
17.3 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 Licensee may terminate this agreement by giving two (2) weeks’ written notice to Viddyoze.
18. No Partnership or Agency
18.1 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.
18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. Entire Agreement
19.1 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.
19.2 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.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
20.1 Viddyoze may amend or otherwise vary these Terms from time to time on providing not less than 30 days’ written notice to the Licensee, which such amendment or variation to take place from the commencement of the upcoming Renewal Period. Where the Licensee does not accept any variation pursuant to this clause 20.1, the Licensee may terminate this Agreement, which such termination taking place at the end of the Initial Term or Renewal Period (as the case may be).
20.2 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).
21. Assignment and Other Dealings
21.1 This Agreement is personal to the Licensee 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.
21.2 Viddyoze may assign, sub-contract or otherwise transfer its rights and obligations hereunder without the Licensee’s prior written consent.
22. No Automatic Waiver
22.1 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.
22.2 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.
23.1 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.
23.2 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.
24. Third Party Rights
No one other than a party to this Agreement shall have any right to enforce any of its terms.
25. 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.
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).