Terms & Conditions
In this Agreement, the following words have the following meanings:
(i) “Agreement” comprises the (a) the Order Form, (b) the attached ToS, the attached Schedules, (c) executed Order Forms and SoWs, and (d) documents referred to in each of (a), (b) and (c).
(ii) “Cloud Service” the cloud service described in the Spec Sheet (and identified in an executed Order Form, and/or SoW) and the Platform.
(iii) “Customer Data” audio, text, photos, pictures, graphics, comments, and other content, data (including personal data/sensitive personal data) or information that Customer, and/or Users upload, store, transmit, submit, exchange and/or make available to ,or via, the Cloud Service.
(iv) “Fees” any and/or all of the fees stated in an executed Order Form and/or SoW and payable by Customer to Photospire.
(v) “IPRs” patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer Apps, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
(vi) “Materials” Photospire documentation and materials provided to Customer.
(vii) “Order Form” additional order form associated with this agreement
(viii) “Photospire Products” the Cloud Service, the Training Services, the Professional Services, the Materials and/or Support.
(ix) “Platform” the Photospire cloud platform used to provide the Cloud Service, including applications, software, hardware, databases, APIs, and Updates.
(x) “Professional Services” the professional services described in the Spec Sheet, and identified in an executed Order Form, and/or a SoW.
(xi) “Spec Sheet” the specifications of the Photospire Products in the Schedules;
(xii) “Support” the technical support described in the technical support policy (Schedule 3).
(xiii) “Term” the Initial Term and any successive automatic renewals thereof of 12 months each (“Renewal Periods”).
(xiv) “Territory” United Kingdom.
(xv) “Training Services” the training services offerings described in the Spec Sheet, and identified in an executed Order Form, and/or SoW.
(xvi) “Updates” bug fixes, patches, improvements, enhancements, modifications, changes, workarounds, and/or upgrades to new versions that Photospire generally makes available at no additional charge to its customers who are current on payment of all Fees.
(xvii) “User” an employee or independent contractor of Customer who is allowed to access and/or use the Photospire Products subject to and in accordance with this Agreement, but it excludes a competitor of Photospire.
(xviii) “Working Day” Monday to Friday except English public holidays (including English bank holidays).
1.2 Unless the context otherwise requires (i) words importing a gender include every gender and references to the singular include the plural and vice versa, and (ii) any words following the terms including, include, in particular, for example, such as, e.g. or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 Subject to and in accordance with the terms of the Agreement (including payment of the Fees) and in consideration of the Fees paid by Customer to Photospire, Photospire grants to Customer a revocable, non-exclusive, non-transferable, non-sublicenseable right for the period of the Term starting on Effective Date to access and/or use the Cloud Service and Materials in the Territory for its internal business purposes. This right does not include a right for Customer to allow access and/or use of the Cloud Service and Materials by, or for the benefit of, any person other than a User.
2.2 Customer. must not access and/or use the Cloud Service in any way that (i) is (or may be) in breach of the Agreement and/or applicable laws and regulations, (ii) could, may (or does) damage, disable, overburden, impair, compromise and/or disrupt the Cloud Service, including its security, integrity, and/or performance, and/or (iii) could, may (or does) interfere with other Cloud Service users and/or any other users’ Accounts.
2.3 Customer must not access and/or use the Cloud Service in any way to (i) send unsolicited communications and/or video content, junk mail, spam, or other forms of duplicative or unsolicited messages, (ii) store and/or transmit any content that infringes any person’s privacy or IPRs, (iii) post, transmit, upload, link to, send and/or store any content that is unlawful, hateful, abusive, obscene, harmful, threatening, defamatory, obscene, infringing, harassing, offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or age or in a way that is otherwise illegal, causes damage or injury to any person or property, and/or infringes a person’s rights (including IPRs and/or privacy rights), and/or (iv) post, transmit, upload, link to, send and/or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
2.4 Customer has no right to (or attempt to do the following) and shall not allow and/or permit a third party to copy, reproduce, adapt, reverse engineer, decipher, decompile, disassemble, modify, and/or make error corrections to the Cloud Service and the Materials except as permitted under applicable law and/or Photospire.
2.5 Customer shall not (or attempt to) (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, provide a bureau service or otherwise commercially exploit the Cloud Service and Materials, and/or allow and/or permit the Cloud Service and Materials to become the subject of any charge, lien and/or encumbrance.
2.6 Customer shall use the Cloud Service and Materials for the purpose set out in this Agreement and for no other purpose. Changes in the purpose and/or the scope of use must be approved beforehand by Photospire. Additional fees shall be payable by Customer on any such changes at Photospire’s then applicable rates.
(i) CUSTOMER RESPONSIBILITIES
2.7 Customer agrees to promptly undertake and fulfil the customer actions. set out in the Spec Sheet, an executed Order Form and/or SoW.
2.8 Customer shall not (or attempt to) access and/or use the Photospire Products (i) for the purpose of building a competitive product and/or service, (ii) copying its features and/ UI/UX, and/or (iii) use the Photospire Products, and/or permit them to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Photospire’s prior written consent.
2.9 Customer must not allow and/or permit a competitor of Photospire to access and/or use the Photospire Products.
3.1 Customer accepts full and entire responsibility for its selection of the ordered Photospire Products.
3.2 Provided that the Customer is current on payment of all Fees and in compliance with this Agreement and applicable law, Photospire will provide the ordered Photospire Products.
3.3 Photospire does not warrant, represent, and/or undertake nor provide any assurances that (i) the use of the Photospire Products will be uninterrupted, bug-free, fault-free and/or error-free, (ii) any result and/or operation (in each case, expected and/or intended) can be achieved. The Photospire Products are provided ‘as-is’ basis and ‘as available’.
3.4 All other conditions, warranties, representations, undertakings, assurances and/or other terms which might have effect between the parties, be implied and/or incorporated into this Agreement (and/or any collateral contract) whether by statute, common law or otherwise, are excluded, including the implied conditions, warranties and/or other terms as to satisfactory quality, fitness for purpose and/or the use of reasonable skill and care.
4.1 Customer shall pay to Photospire the Fees. All Fees due hereunder shall be due and payable within 30 days of the invoice date. Fees are non-refundable. All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which Customer shall be responsible and they are non-refundable. Photospire reserves the right to charge interest on all overdue payments at a rate of 1.5% per annum above the base lending rate of Bank of England from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount. All amounts due under this Agreement shall be paid in cleared funds and in full without any set-off, counterclaim, deduction or withholding (other than any deduction and/or withholding of tax as required by applicable law).
5.1 A party that receives (“Receiving Party”) Confidential Information from the other party (“Disclosing Party”) whether before or after the Effective Date shall (i) keep the Confidential Information secret and confidential, (ii) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with clause 6.2, (iii) not use the Confidential Information for any purpose other than the performance of its obligations or the enjoyment of its rights under this Agreement (“Permitted Purpose”), and (iv) use the Confidential Agreement for the Permitted Purpose.
5.2 The Receiving Party may disclose Confidential Information to its own officers, directors, employees, and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this clause 6 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Agreement). The Receiving Party shall ensure and procure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this clause 6. The Receiving Party may disclose Confidential Information to a court, governmental, regulatory authority or agency of a competent jurisdiction or as required by applicable law.
6.1 Customer shall have and retain its IPRs in its Customer Data.
6.2 Customer Data does not, shall not and will not include content that is unlawful, hateful, abusive, obscene, harmful, threatening, defamatory, obscene, infringing, harassing, offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or age or in a way that is otherwise illegal and/or causes damage or injury to any person and/or property, and/or infringes a person’s rights (including IPRs and/or privacy rights).
6.3 Without affecting any other right or remedy available to it, if Customer breaches clause 7.2, Photospire has the right to (i) remove from the Cloud Service any such content, and/or (ii) suspend immediately Customer’s access and/or use of the Cloud Service without giving notice to Customer.
6.4 Each party will comply with the The EU General Data Protection Regulation (GDPR). To the extent that Photospire processes personal data (and sensitive personal data) made available for and/or on behalf of Customer for the purposes of this Agreement, Customer shall be the data controller and Photospire shall be a data processor.
6.5 Photospire will maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of personal data (and sensitive personal data) it processes for and/or on behalf of Customer.
7.1 A party shall have and retain any and/or all IPRs in its Confidential Information.
7.2 Photospire (and/or its licensors) shall have and retain any and/or all IPRs in and/or relating to the Photospire Products and work developed or created by Photospire in the course of providing Professional Services, Training Services and/or Support. Photospire hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicenseable licence for the period of the Term starting on Effective Date to use such work for its internal business purposes in the Territory on the same terms and conditions as the Photospire Products. This licence does not include a right for Customer to allow access and/or use such work by, or for the benefit of, any person other than a User.
7.3 Customer shall have no rights and/or licences in and/or the Photospire Products other than the right to use them subject to and in accordance with this Agreement. Any rights that are not expressly granted by Photospire to Customer herein are hereby expressly reserved by Photospire.
7.4 Customer hereby assigns title, interest and rights in suggestions, enhancement requests, recommendations, and/or other feedback provided by Customer and/or Users in respect of and/or relating to the Photospire Products.
8.1 Nothing in this Agreement shall limit or exclude the liability of either party for (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), (ii) fraud or fraudulent misrepresentation, and (iii) any matter in respect of which it would be unlawful to exclude or restrict liability.
8.2 Photospire shall not in any circumstances have any liability for any losses and/or damages which may be suffered by Customer which fall within any and/or all of the following categories:
(i) special losses and/or damages even if Photospire was or is aware of the circumstances in which such special damage could arise;
(ii) loss of actual or anticipated profits (direct or indirect);
(iii) loss of actual or anticipated revenue (direct or indirect);
(iv) loss of actual or anticipated savings;
(v) loss of goodwill;
(vi) loss of business opportunity;
(vii) loss of customers;
(viii) incidental, consequential and/or indirect losses and/or damages of any kind howsoever arising and whether or not they are foreseeable, foreseen or known;
(ix) loss of reputation; and/or
(x) damage, loss and/or corruption of data and/or information.
8.3 Subject to clauses 9.1 and 9.2, the total maximum aggregate liability of Photospire arising under, in relation to and/or in connection with this Agreement and/or any collateral contract (whether in contract, tort (including negligence) or otherwise) shall in no circumstances exceed £1,000,000.
8.4 All references to “Photospire” in this clause 9 shall include Photospire, its affiliates, employees, contractors and suppliers of Photospire, all of whom shall have the benefit of the exclusions and limitations in this clause 9.
9.1 This Agreement shall (unless otherwise terminated in accordance with this Agreement) commence on the Effective Date and shall be effective for the Term.
9.2 Customer or Photospire may terminate this Agreement effective from the end of the Initial Term or any Renewal Term thereafter by giving not less than thirty (30) days’ advance written (or email) notice, such notice to expire at the end of the then current Term.
9.3 Without affecting any other right and/or remedy available to it, Photospire shall be entitled to suspend its performance of its obligations under the Agreement and/or terminate the Agreement with immediate effect by giving notice to Customer if Customer (i) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment, and/or (ii) breaches clause 2, and/or 7.2.
9.4 Without affecting any other right and/or remedy available to it, either party may terminate this Agreement with immediate effect by giving notice to the other party if the other party (i) the other party commits a material breach of a term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so, (ii) (a) ceases or threatens to cease to carry on its business or substantially the whole of its business other than for the purposes of amalgamation or reconstruction without insolvency, or (b) has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (other than for the purposes of amalgamation or reconstruction without insolvency) or (c) makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over any of its assets, or a court or arbitrator with authority to so determine, determines that the debtor is unable to pay its debts.
9.5 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
9.6 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations and/or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
On termination for any reason (i) all rights and licences granted to Customer under this Agreement shall cease, (ii) Customer shall cease all activities authorised by this Agreement, (iii) Customer shall immediately pay to Photospire any sums due to Photospire under this Agreement, and (iv) Customer shall immediately destroy or return to Photospire (at Photospire’s option) Materials and Photospire-supplied items then in its possession, custody or control and, in the case of destruction, certify to Photospire that it has done so.
10.1 If there is conflict/ambiguity between a ToS provision and a Schedule provision, the ToS provision shall prevail. If there is a conflict/ambiguity between (a) a ToS and/or Schedule provision and (b) an executed Order Form or SoW provision, then (a) shall prevail (unless expressly stated otherwise in the applicable executed Order Form or SoW. The Agreement provisions shall always prevail over Customer purchase orders and/or other Customer documentation even if they say otherwise.
10.2 No failure and/or delay by a party to exercise any right and/or remedy provided under this Agreement and/or by applicable law shall constitute a waiver of that and/or any other right/remedy, nor shall it prevent and/or restrict the further exercise of that and/or any other right and/or remedy.
10.3 This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all prior agreements, arrangements and understandings between them relating to that subject matter except as expressly stated in this Agreement.
10.4 Each party does not rely on any statement, representation, undertaking, assurance and/or warranty (whether it was made negligently or innocently and whether in writing) of any person (whether a party to this Agreement or not) (Representation) other than as expressly set out in this Agreement. The only rights and remedies available to it arising out of and/or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.
10.5 An Agreement provision is not enforceable by, (to be) relied upon or intended to benefit, any person who is not a party to this Agreement.
10.6 No Agreement variation shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.7 Customer shall not assign, delegate, transfer or otherwise dispose (“assignment”) of all or any of its rights, obligations and/or liabilities under this Agreement without Photospire’s prior written consent (such consent not to be unreasonably withheld or delayed). Any attempted assignment in breach of this clause shall be null and void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.8 Photospire may (i) use Customer’s name and logo in accordance with Customer’s branding guidelines supplied to Photospire in its marketing, PR and sales materials and activities, and (ii) develop a Customer case study to be included in such materials and activities.
10.9 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.
10.10 A party shall not be in breach of this Agreement nor liable for delay in performing, and/or failure to perform, any of its obligations under this Agreement (excluding Customer’s payment obligations), if such delay and/or failure results from events, circumstances or causes beyond its reasonable control such as failure of part of the power grid, ISP equipment failure, host equipment failure, security attack (e.g. DoS, phishing), malware attacks and infections, communications network failure, default of Photospire suppliers or contractors (Force Majeure).
10.11 Notices (including invoices) under this Agreement will be in writing. Notices may be given, and will be deemed received (i) by pre-paid first-class post: on the second Working Day after posting, (ii) by hand: on receipt of a signature at the time of delivery, (iv) by email 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received or on receipt of confirmation of receipt from the recipient. Notices will be sent to the email address or postal address of the Parties as set out in the Front Sheet. A Party may change the address and email address to which notices are to be delivered by giving not less than 7 Working Days’ notice to the other Party. This clause shall not apply to the service of any proceedings or other documents in any legal action, arbitration or other method of dispute resolution.
10.12 Subject to clause 11.13, any dispute arising out of or in connection with this Agreement shall first be escalated to the parties’ Contract Managers. If the dispute remains unresolved for 5 days, it shall be referred to a senior executive of each party who shall attempt resolution through negotiations. If the dispute remains unresolved for a further 5 days, either party may refer the dispute to the English courts. This clause shall not restrict a party from initiating any proceedings in respect of a matter where that party has reasonable cause to do so in order to avoid damage to its business and/or to protect or present any right of action it may have, and/or from applying for and/or obtaining emergency or interlocutory relief.
10.13 This Agreement and any dispute and/or claim arising out of (or in connection with) it, its subject matter and/or formation (including non-contractual disputes and/or claims) shall be exclusively governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.[/vc_column_text][vc_single_image media=”77812″ media_width_percent=”100″][vc_column_text]Notes: 1. Unused Video and GIFs expire at the end of the Initial Term or a Renewal Period (where the Agreement is renewed) do not roll forward. 2. No refunds are issued. 3. The specification in the Order Form represents the Cloud Service specification as at the Effective Date, and may subsequently be updated. Any updated specification will be deemed substituted for the above from (and including) the date upon which any such change is made. We will notify users via email for important feature and functionality announcements and include a list of updates in the Platform homepage. 4. We occasionally release features and functionality that we would like to test or evaluate on the Platform – they will be marked as ‘beta’, ‘preview‘, ‘early access’, ‘evaluation’ or similar terms (“Test Features”), they may not be as reliable as non-Test Features and they are provided subject to and in accordance with the Agreement. 5. Customer is responsible for (i) all activities conducted under User and logins, (ii) obtaining and maintaining any Customer Equipment (and any ancillary services) needed to connect to, access and/or use the Cloud Service; and (iii) ensuring and procuring that any Customer Equipment (and any ancillary services) used to connect to, access and/or use the Cloud Service is compatible with the Cloud Service. 6. “Customer Equipment” means the system, computer hardware, software, and/or network infrastructure of Customer, its contractors and/or its Users. 7. The Cloud Service includes Account Management. Account Management is the provision of quarterly review meetings to discuss performance or any other issues with your Photospire account manager. For emergency review meetings, contact your Photospire to arrange date and time.[/vc_column_text][vc_single_image media=”77814″ media_width_percent=”100″][vc_column_text]Notes: 1. “Availability” means the percentage of total time during which the Cloud Service is available to Customer, excluding Scheduled Downtime and Emergency Maintenance. 2. “commercially reasonable endeavours” in this SLA means the same degree of priority and diligence that Photospire uses to achieve the Availability Goal for its other similar customers. 3. “Customer Equipment” means the system, computer hardware, software, and/or network infrastructure of Customer, its contractors and/or its Users. 4. The above SLA represents the SLA specification for the Cloud Service as at the Effective Date, and this specification may subsequently be updated. Any updated specification will be deemed substituted for the above from (and including) the date upon which any such change is made. 5. If Customer experiences Availability issues, Customer shall notify Photospire using the process set out in the Photospire technical support policy (Schedule 4).[/vc_column_text][vc_single_image media=”77815″ media_width_percent=”100″][vc_column_text]Notes: 1. “commercially reasonable endeavours” means in this technical support policy the same degree of priority and diligence that Photospire uses to achieve the Service Goals for its other similar customers. 2. “Customer Equipment” means the system, computer hardware, software, and/or network infrastructure of Customer, its contractors and/or its Users. 3. This Schedule 3 represents the technical support policy specification for Support as at the Effective Date, and this specification may subsequently be updated. Any updated specification will be deemed substituted for the one set out in Schedule 3 from (and including) the date upon which any such update is made.
1.1 Photospire will use commercially reasonable endeavours to provide Support for the Cloud Service in accordance with the Service Goals below. This obligation will not apply in the Event of a Force Majeure. Photospire is not obliged to provide Out-of-scope Services. Support will be provided remotely. The provision of Support other than remotely (e.g. at the Customer premises) or the provision of Out-of-scope Services shall be charged at Photospire’s then applicable rates.
2- Support Requests
2.1 Only the Customer’s nominated support contact (Nominated Contact) shall raise a Support Request. Each Support Request shall include a description of the problem and the start time of the Incident. Before raising a Support Request, Customer shall perform its own root cause analysis to verify whether the Incident has not been caused by the Customer Equipment (and ancillary services) and/or third-party e.g. Customer contractor. Photospire may charge for any costs incurred by it to investigate any Incident that is not caused by Photospire at its then applicable rates.
2.2 The Nominated Contact shall promptly (a) notify Photospire of an Incident, and (b) provide such output and other data, documents, information, assistance, access to the Customer Equipment (and ancillary services), Customer files and/or personnel, as are necessary to assist Photospire to reproduce operating conditions similar to those present when Customer detected the relevant Incident and to respond to a Support Request. The Nominated Contact shall promptly respond to Photospire in the course of the provision of Support and maintain good communication with Photospire at all times. Photospire shall not be liable for any delay in providing Support if Customer does not comply with this technical support policy.
2.3 Photospire will categorise the severity of a reported Incident. If the Nominated Contact disagrees with Photospire’s categorisation, then they will discuss to resolve the disagreement. If they are unable to resolve the disagreement, then Photospire’s categorisation shall prevail.
Notes: 1. “Response time” is defined as the time it takes for Photospire to confirm that the reported Incident has been registered. 2. “Response” is confirmation to the Nominated Contact that the reported Incident was received and registered by Photospire. 3.“Resolution time” is defined as the time it takes for Photospire to investigate and implement a resolution, or to investigate and confirm to the Nominated Contact a reasonable time estimate for implementation of a resolution. 4. Response and Resolution time goals can only be guaranteed within Support Hours of 9:00. and 17:00 GMT on a Working Day, with reasonable goals outside of Support Hours to be communicated when an incident is reported. 5. Photospire may extend the Service Goals and, if it does so, will inform the Nominated Contact.