Conditions
1. Interpretation
1.1. Definitions:
2. Business Hours: 09:00am – 5:00pm (GMT) on a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
3. Charges: the charges payable by the Customer for the supply of the Deliverables and Services by The Virtual Tour Experts, as set out in the Order Form.
4. CMS System: the content management systems licensed by The Virtual Tour Experts to the Customer to enable the Customer to customise and edit the Deliverables.
5. Conditions: these terms and conditions.
6. Contract: these Conditions together with the Order Form and Proposal.
7. Customer: the customer identified on the Order Form or Proposal.
8. Customer Materials: all materials, equipment and tools, drawings, specifications, and data supplied by the Customer to The Virtual Tour Experts.
9. Deliverables: all documents, products, videos, images, photographs, and materials developed by The Virtual Tour Experts or its agents, subcontractors, and personnel as part of or in relation to the Services in any form (including drafts) as set out in the Order Form and Proposal (if any).
10. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up goodwill and the right to sue for passing off, rights in designs, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
11. Proposal: any specification agreed between the parties from time to time detailing the Deliverables.
12. Services: the services to be provided by The Virtual Tour Experts pursuant to the Contract, as described in Contract Details.
Interpretation:
(a) A reference to legislation or a legislative provision is a reference to it as it is in force as at the date of this Contract.
(b) Any words following the terms including, include 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.
(c) A reference to writing or written excludes fax but not email.
2. Commencement and term
The Contract shall commence on the Commencement Date shall continue, unless terminated earlier in accordance with its terms, or until the Deliverables have been delivered to the Customer when it shall automatically terminate without notice.
3. Supply of services
3.1. The Virtual Tour Experts shall supply the Services to the Customer materially in accordance with the Contract.
3.2. The Virtual Tour Experts reserve the right to amend the equipment used to provide the Services from time to time provided that the quality of the Services are not materially affected.
3.3. The Virtual Tour Experts shall:
(a) perform the Services with reasonable care and skill;
(b) comply with all applicable laws, statutes, regulations from time to time in force, provided that The Virtual Tour Experts shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
(c) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to The Virtual Tour Experts, provided that The Virtual Tour Experts shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(d) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that The Virtual Tour Experts may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after
4. The Deliverables
4.1. Any samples, drawings, descriptive matters, or advertising produced by The Virtual Tour Experts and any descriptions or illustrations contained in The Virtual Tour Experts catalogues, brochures or website are produced for the sole purposes of giving an approximate idea of the Deliverables described in them. They shall not form part of the Contract or have any contractual force.
4.2. The Virtual Tour Experts shall take reasonable steps during the design phase to agree and obtain sign off from the Customer of the Deliverables. Notwithstanding the previous sentence, The Virtual Tour Experts reserves the right to levy additional Charges if the Customer requires it to carry out more than two reiterations of the Deliverables.
5. Customer’s obligations and acknowledgment
5.1. The Customer shall:
(a) co-operate with The Virtual Tour Experts in all matters relating to the Services and Deliverables;
(b) (if required to enable The Virtual Tour Experts to carry out the Services), provide, for The Virtual Tour Experts, its agents, subcontractors, consultants, and employees, access to the Customer’s premises, and other facilities as reasonably required by The Virtual Tour Experts or any of them;
(c) provide, in a timely manner, such information as The Virtual Tour Experts may reasonably require, and ensure that it is accurate and complete in all material respects;
(d) ensure that they have all necessary permission, consents, and licences to enable The Virtual Tour Experts to provide the Services at the requested shoot location.
5.2. The Customer acknowledges and accepts that:
(a) the scheduled undertaking of any photoshoot by The Virtual Tour Experts and/or the quality of the Deliverables is dependent on several factors including weather conditions, lighting, space availability and accessibility to the relevant surroundings. Notwithstanding the previous sentence, The Virtual Tour Experts will work with the Customer to try and mitigate the negative impact of such factors;
(b) whilst The Virtual Tour Experts will ensure that the Deliverables operate on any agreed platforms and systems, future technological changes and advances may restrict or limit the performance of the Deliverables.
5.3. If The Virtual Tour Experts performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, The Virtual Tour Experts shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay, including a delay caused by the Customer’s breach of clause 5.1(d); and
(c) be entitled to recover any additional costs, charges or losses The Virtual Tour Experts reasonably sustains or incurs that arise directly or indirectly from such prevention or delay.
6. Hosting
6.1. If the Services including the hosting of the Deliverables by The Virtual Tour Experts, then The Virtual Tour Experts will use its reasonable endeavours to ensure that the relevant Deliverable is accessible online at all reasonable times. Notwithstanding the previous sentence, the Customer acknowledges and accepts that there can be outages from time to time. This includes:
(a) outage periods due to any cause other than faults by The Virtual Tour Experts including faults or negligence of the Customer, problems associated with equipment connected on the Customer’s side or downtime by any external service provider;
(b) outage periods reported by the Customer in which no fault is observed or confirmed by The Virtual Tour Experts;
(c) scheduled maintenance; and
(d) performance degradations and service loss due to denial of service attacks or other unlawful attacks.
7. Data protection
The Virtual Tour Experts shall act as data controller in accordance with the UK GDPR and Data Protection Act 2018. Personal data provided under this Contract shall be treated in accordance with The Virtual Tour Experts privacy policy as updated from time to time.
8. Intellectual property and licensing
8.1. Save in respect of the Customer Materials, The Virtual Tour Experts and its licensors shall retain all ownership (including Intellectual Property Rights) of all Deliverables. In the event that the Deliverables include images relating to private properties then The Virtual Tour Experts shall obtain the Customer’s prior consent to use the Deliverables.
8.2. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
8.3. Upon payment of the Charges in full, The Virtual Tour Experts grants the Customer, or shall procure the direct grant to the Customer of,
(a) a fully paid-up, worldwide, non-exclusive, non-sub-licensable, royalty-free, licence to use Deliverables for the purpose of receiving and using the Services and the Deliverables and for the marketing and promotion of the Customer’s business;
(b) (subject to any additional payment requirement pursuant to the Order Form or Specification) a non-exclusive, personal licence to use the CMS System for the purpose of editing, adding or deleting the Deliverables.
8.4. The Customer shall not sub-licence the licence provided to it in clause 8.3 without the prior written consent of The Virtual Tour Experts.
8.5. The Customer grants The Virtual Tour Experts a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract. In addition, the Customer grants The Virtual Tour Experts the perpetual right to use the Deliverables (or part of them) in its own marketing materials including as part of any case study, pitch, presentation or as part of its website or marketing literature.
8.6. The Customer shall indemnify The Virtual Tour Experts in full against any sums awarded by a court against The Virtual Tour Experts arising of or in connection with any claim brought against The Virtual Tour Experts for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by The Virtual Tour Experts.
9. Charges and payment
9.1. All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to The Virtual Tour Experts at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
9.2. Unless included in the Order Form, the Customer shall also pay The Virtual Tour Experts reasonable travel and expenses provided that the Customer has provided their prior written consent.
9.3. Unless otherwise set out in the Order Form, The Virtual Tour Experts shall invoice the Customer:
(a) 50% of the Charges on the Commencement Date;
(b) the remaining 50% of the Charges upon the last day of the shoot;
(c) an annual fee in respect of the hosting of the Deliverables;
(d) an annual or period fee (as set out in the Order Form) for the ongoing licence to use the CMS System;
(e) for the travel and expenses at the point that they are incurred.
9.4. The Customer shall pay each invoice due and submitted to it by The Virtual Tour Experts, within 14 days of receipt, to a bank account nominated in writing by The Virtual Tour Experts. In any event the Customer shall, unless otherwise agreed, pay the Charges set out in clause 9.2(a) before the first day of the shoot.
9.5. If the Customer fails to make any payment due to The Virtual Tour Experts under the Contract by the due date for payment, then, without limiting The Virtual Tour Experts remedies under clause 11, the Virtual Tour Experts:
(a) shall be entitled to charge the Customer interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 8% a year above the Bank of England’s base rate from time to time; and/or
(b) may suspend all Services until payment has been made in full.
9.6. All amounts due under the Contract from the Customer to The Virtual Tour Experts shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Limitation of liability
10.1. References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.2. Nothing in this clause 10 shall limit the Customer’s payment obligations under the Contract.
10.3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.4. Subject to clause 10.2 and clause 10.3 both parties total aggregate liability to the other shall not exceed the Charges paid and payable to The Virtual Tour Experts in the twelve (12) months preceding the breach.
10.5. Nothing in this Contract shall limit the Customer’s liability under clause 8.6.
10.6. Subject to clause 10.2 and clause 10.3, neither party shall be liable for loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
10.7. The Virtual Tour Experts has given commitments as to compliance of the Services as set out in this Contract. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.8. Unless the Customer notifies The Virtual Tour Experts that it intends to make a claim in respect of an event within the notice period, The Virtual Tour Experts shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11. Termination
11.1. Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(c) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
11.2. Without affecting any other right or remedy available to it, The Virtual Tour Experts may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
11.3. On termination of the Contract for whatever reason:
(a) the Customer shall immediately pay to The Virtual Tour Experts all of The Virtual Tour Experts outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, The Virtual Tour Experts may submit an invoice, which shall be payable immediately on receipt;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations 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 Contract which existed at or before the date of termination or expiry.
12. General
12.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
12.2. Assignment and other dealings.
(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without The Virtual Tour Experts prior written consent.
(b) The Virtual Tour Experts may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all its rights under the Contract.
12.3. Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party;
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.4. Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.5. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.6. Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
12.7. Notices.
(a) Any notices to be given under this Contract shall be in writing and are deemed to be effectively delivered if
(i) by hand when delivered, (ii) by post within 48 (forty-eight) hours of posting, or by email when dispatched to the emails set out in the Contract Details (or as updated in writing from time to time), when dispatched provided that such email is received with Business Hours.
(b) This clause 12.7 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.
12.8. Third party rights.
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.9. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, 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 (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.