Buyer Content” Means the Buyer’s software, data, documents, audio, video or any other content placed on the system;
Confidential Information” of a party (the “Disclosing Party”) means all information of the Disclosing Party, which has value by virtue of not being publicly known and which is disclosed or otherwise made available to the other (the “Receiving Party”) under this Agreement;
“SaaS Shop” is the portal through which VCL SaaS and PaaS products can be ordered and managed;
“VCL SaaS Shop Agreement” (VSSA) means the order form document which lists the Services Buyer has chosen and the related fees and together with these Terms forms a written Contract between the Parties;
“Fee(s)” means the fee(s) set out in the VSSA;
“Force Majeure” means any event beyond the reasonable control of the affected party;
“Initial Term” means the minimum term for which VCL will provide the Services as set out in the VSSA (normally 3 months);
“Open Source Software” means any software licensed under any form of opensource licence meeting the Open Source Initiative’s Open Source Definition (https://opensource.org/osd-annotated) or substantially similar licences;
“One Time Installation Fee” means any initial installation charge as set out on the VSSA or as otherwise agreed in writing between the Parties;
“Services” means the SaaS Shop services to be provided by VCL as set out in the VSSA;
“Service Levels” means service level commitments set out in the SLA where applicable;
“Third Party Software” Means software which is not owned by VCL or the Buyer (but excluding Open Source Software) In this Agreement, unless the context otherwise requires, words suggesting the singular include the plural and vice versa and words suggesting the masculine include the feminine and vice versa. Heading are used for ease of reference only and do not affect the interpretation of this Agreement.
This means the agreement made by the Parties which comprises the the VSSA Contract and these terms and conditions collectively the “Agreement” and which shall be interpreted in the order of precedence as stated in the framework conditions in the event of any inconsistency or conflict (and subject to clause 8.2 in below in respect of Third Party Software), namely in the following order of precedence:
These terms and conditions.
The Agreement shall be deemed to have been accepted by the Buyer upon the first of (I) the purchase of SaaS or PaaS product through the SaaS Shop, (ii) the Buyer’s signature of the VSSA, (iii) the Buyer’s instruction to commence work, (iiv) VCL starting work on the provision of the service or (v) the Buyer’s payment of any agreed fee.
Variations or additions to the Agreement can be made. However, authorised representatives of both Parties must agree to the variations or additions beforehand in writing.
Provision of Service
VCL warrants that it will deliver the Services described in the SaaS Shop and in the VSSA with reasonable skill and care.
VCL agrees to deliver the Services within a reasonable time. Both Parties will use all reasonable endeavours to meet any target date, project plan or timetable referred to in the Agreement.
Fees and Payment
The VSSA sets out the charges for the Services.
All fees, costs and expenses referred to in the VSSA are exclusive of VAT, sales and similar taxes of any kind.
The Buyer shall pay all fees, costs and expenses related to the Service upon VCL presenting its VCL’s invoice.
In the event that invoices are not paid within 30 days from presentation of the invoice, VCL will be entitled to suspend performance of the Services and/or to charge interest on any outstanding amount.
In this section “Confidential Information” means any information (in whatever form) which is of a confidential nature and which relates to a Party’s business or that of its group companies (for the purposes of this Agreement, a group company is a company controlling, controlled by or under common control with a Party to this Agreement), the provision of the Services or the Agreement and which is disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) or which the Receiving Party learns during the provision of the Services or otherwise as a result of entry into this Agreement.
The definition of Confidential Information does not include any information: which is already known by the Receiving Party without an obligation of confidence; or which is or comes into the public domain without breach of this Agreement; or which is independently developed or created by the Receiving Party without use of the Confidential Information supplied; or lawfully received from a third Party without obligation of confidence.
The Receiving Party will treat the Disclosing Party’s Confidential Information with the same degree of care as it treats its own confidential information and, as a minimum, with reasonable care.
During the provision of the Services and for three (3) years from completion thereof or other termination of this Agreement, the Receiving Party agrees that it will keep the Disclosing Party’s Confidential Information confidential and subject to clause 5.5 below not disclose such Confidential Information to any third Party.
The prohibition referred to in clause 5.4 above will not apply where disclosure of the Confidential Information is:
Reasonably required by a company within the same group;
Reasonably required by the Parties’ advisors or sub-contractors;
Provided that any disclosure as a result of the exceptions in clauses 5.5.1 and 5.5.2 above and 5.5.4 below will only be made if such third Party is under a no less onerous obligation of confidentiality than as set out in this Agreement.
Reasonably required if as a part of the provision of the Services the Buyer requires VCL to work with any third Party supplier or other group company of the Buyer;
Required by a court or by law or by a regulatory authority. The Receiving Party shall give as much notice to the Disclosing Party as is reasonably practicable in the circumstances, and the Receiving Party shall assist the Disclosing Party in limiting the extent of such disclosure;
Consented to in writing by the other Party.
VCL may need access to the Buyer’s facilities, information and resources for and during the delivery of the Service. The Buyer, without charge to VCL, will provide access to these to the extent reasonably requested by VCL and shall cooperate with VCL to the extent reasonably required to achieve the objectives set out in the Agreement.
Buyer shall ensure that its network and other IT infrastructure complies with the relevant specifications and is suitable for accessing the Services as notified to it by VCL. VCL shall not be responsible for Services failure caused by Buyer’s IT infrastructure hardware or Buyer’s network problems.
When using the Services the Buyer shall not transmit any viruses or any material deemed unlawful, defamatory, obscene or racially or ethnically offensive or any other illegal activity. VCL reserves the right to withdraw the Services if this clause is breached.
The Buyer shall ensure that each Buyer authorised user shall keep a strong and secure password for their use of the Services. Such password shall be kept confidential and shall be changed frequently.
Buyer shall be responsible for regularly backing up all Buyer data and VCL shall not be liable for any data loss as a result of insufficient Buyer backups being taken.
Intellectual Property and Rights of Use.
Intellectual Property (“IP”) means all forms of intellectual property, including, without limitation, property in and rights under copyright, patents, conceptual solutions, circuit layout rights, performance rights, design rights, designs, database rights, trade names, trademarks, service marks, methodologies, ideas, processes, methods, tools and knowhow and entitlement to make application for formal (or otherwise enhanced) rights of any such nature.
IP and rights to IP owned by either Party on the date of the Agreement or created outside the terms of this Agreement and all modifications thereto and derivative versions thereof created during the Services (“Background IP”) shall remain the property of that Party.
The Buyer hereby grants to VCL a royalty-free, non-exclusive licence to use the Buyer’s Content as required to allow VCL to perform its obligations under the Agreement.
VCL shall have no right, title or interest in IP owned by the Buyer. IP created or developed by VCL within the provision of the Services (“Foreground IP”) and rights to such IP will be owned by VCL.
VCL hereby grants a non-exclusive, non-transferable, non-sub-licensable revocable right to access and use any software required as part of the Services in object code only (where software) for the duration of the Service. At the end of the Service the right referred to in herein will be terminable by VCL. Access and use of any software required as part of the Service may be withdrawn or disabled in the event of prolonged non payment of VCL invoices.
VCL warrants that to the best of VCL’s knowledge and belief the results of the Service shall not infringe the copyright of any third party.
Buyer warrants that it or its third parties own all rights, title and interest in the Buyer Content and that Buyer is able to grant the rights to VCL required by this Agreement.
Third Party Services/Software
VCL may provide such open source and third party software and/or services as part of the Service as described in the SaaS Shop and detailed in the VSSA as a requirement and may also provide product support for them if detailed specifically in the VSSA as a requirement, on the licensing terms for such open source and third party software.
Buyer agrees that the use of Third Party Software is in accordance with the Third Party Software owners standard licence terms and is at Buyer’s sole risk and VCL are not responsible in any way for their performance, features or failures and gives no warranty in this regard.
Buyer agrees that its use of Open Source Software will be in accordance with the open source licence terms and is at Buyer’s sole risk and VCL are not responsible in any way for their performance, features or failures and gives no warranty in this regard.
The Buyer’s rights to use the Software are subject to the usage rights granted by the Third Party Software owner. The Buyer acknowledges that the usage rights of Third Party Software may vary from product to product and agrees to abide by such rights. The Buyer is deemed to accept the usage rights in relation to the software set out in the VSSA by placing the order with VCL or by VCL commencing the Services, whichever is the sooner.
The Buyer agrees that any software provided by VCL or Third Party Software owner will remain the property of the VCL and/or Third Party Software owner respectively and cannot be taken, transferred, sub-licenced or re-assigned. Clause 8.5 does not apply in respect of Open Source Software used as part of the Services.
VCL shall use its reasonable endeavours to make available to the Buyer access to the Services but it shall not, in any event, be liable for interruptions of Service or down-time of the hosted server (including but not limited to where the Services are unavailable due to planned maintenance, emergency maintenance or faults attributable to any third party, including hosting suppliers);
Hosted Services on the Cloud
Hosting services are provided as part of the VSSA, the Buyer shall be solely responsible for its data and of the means by which the Buyer acquires data. The Buyer agrees that the Services are used for its own internal use only and shall not transfer or assign or lease their use in any way nor use them commercially to provide products to any End-Users. Buyer shall use reasonable endeavours to prevent unauthorised access to, or use of, the Services. The Services may be subject to limitations made by VCL. Any such limitations will be specified in the applicable user documentation or on the SaaS shop web site.
Buyer shall be responsible for security, protection and back up of all of its Buyers Content.
Either Party may at any time and without cause terminate the Agreement on completion of the first 3 months Service, giving 30 days written notice of termination to the other Party.
Upon termination under clause 11.1, the Buyer shall pay VCL all sums due in respect of the Service provided and expenses incurred prior to termination.
Either Party may terminate the Agreement forthwith by written notice if the other Party 6 commits an act of bankruptcy or goes into liquidation or is put into liquidation (other than for a proper commercial purpose and whilst solvent) or a receiver is appointed or an administration order is made in respect of it.
Either Party may terminate the Agreement forthwith by written notice if the other Party commits a material breach of the Agreement and, provided that such breach is capable of remedy, has failed to remedy the breach within 30 days of receipt of a written notice from the other Party identifying that the breach has occurred.
Involvement by either Party in unethical business practices shall always be considered a material breach which is not capable of remedy. Such practice includes, but is not limited to, either Party or anyone acting on a Party’s behalf (with or without the knowledge of that Party):
engaging in any unethical or illegal activities in connection with the Services or any agreement related to the Services;
offering or giving any bribes or gifts to any individual or organisation involved in any way with the Services;
requesting or accepting any bribes or gifts from any individual or organisation involved in any way with the Services;
offering or paying any commission or other payment to any individual or organisation involved in any way with the Services unless the full circumstances of such commission or payment are declared in writing to the other Party and, where applicable, any end-Buyer in advance; or
accepting any commission or other payment from any individual or organisation involved in any way with the Services unless the full circumstances of such commission or payment are declared in writing to the other Party and, where applicable, any end-Buyer in advance
a breach of Third Party Software owner’s AUP.
Termination shall not affect any accrued rights or liabilities arising out of the Agreement.
Limitations and Exclusions
Neither party excludes liability for death or personal injury to any person due to its negligence or the negligence of its employees or any other liability which cannot be lawfully excluded or limited.
For liability for physical damage to or loss of the other Party’s tangible property as a result of default (whether in contract, tort or under any other cause of action), liability will be capped at £1,000,000 in respect of any one incident or series of connected incidents and is further capped at a maximum aggregated amount of £1,000,000 per annum in respect of all claims falling within the ambit of this clause.
In respect of any liability other than those falling within clauses 12.1 and 12.2 above, VCL’s total liability arising out of or in connection with the Agreement (whether in contract, tort or under any other cause of action) shall not exceed in aggregate 125% of the total fees paid by the Buyer for the Services which gave rise to the claim during the preceding 12 months.
Neither Party shall in any circumstances be liable to the other whether in contract, tort (including negligence) or otherwise for:
Any loss of profit, loss of contracts, loss of benefit, loss of production, loss of availability, loss of data, loss of anticipated savings, loss of reputation, loss of goodwill or loss of use suffered or incurred directly or indirectly by the other Party.
Any consequential, indirect or special loss or damage howsoever arising and of whatsoever nature.
Any punitive or exemplary damages.
Nothing in this Clause 10 shall affect or limit the Buyer’s obligation to pay sums properly due under the Agreement.
The express terms of this Agreement shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law.
Nothing in this Agreement shall limit a Party’s liability for fraud or fraudulent misrepresentation.
Non-Solicitation and the Transfer of Undertakings and (Protection of Employment) Regulations 2006 (SI 2006/246) (‘TUPE’)
The Buyer shall not, either during the provision of the Services or for a period of six months from completion of the Services, employ or offer employment to any member of VCL’s project team.
The Buyer agrees that if TUPE applies on the start date of the provision of the Services, it will use its reasonable endeavours to obtain, and shall disclose to the Service Provider any such information as it does so obtain, details of the identity, terms of employment (including pension arrangements) and all other relevant details of transferring employees.
The Buyer shall indemnify VCL (or shall procure that the legacy provider of Services shall indemnify VCL) from and against all losses, costs, awards, liabilities and expenses (including reasonable legal fees) incurred by VCL in connection with or as a result of any claim by any employee or former employee of the Buyer or the legacy provider that is being transferred in respect of such person’s employment with the Buyer or the legacy provider, during the period up to and including the Services commencement date.
Third Party Rights
No person or entity other than the Buyer shall have any rights to enforce any of the terms of the Agreement against VCL under the Contracts (Rights of Third Parties) Act 1999.
VCL does not accept any liability, howsoever arising, under the Agreement to any person or entity other than the Buyer to the extent permitted by law.
Neither Party shall assign the Agreement without the other Party’s prior written consent (not to be unreasonably withheld or delayed). This clause shall not prevent VCL from sub-contracting all or part of the Services.
Each Party warrants to the other that it has complied with and will continue to comply with the provisions of the Data Protection Act 1998 (DPA) and the General Data Protection Regulation 2016 (GDPR) when in effect, in relation to the Agreement.
Buyer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Buyer Content.
Where VCL is processing any personal data the Buyer shall be the Data Controller and VCL shall be the Data Processor as defined in the DPA and the Buyer shall be liable to ensure that it is legally entitled to transfer such personal data.
VCL shall only be authorised to use such personal data for the provision of the Service unless VCL is required to disclose under a legal obligation.
Service maintenance shall take place in accordance with a schedule to be mutually agreed unless such Service maintenance is an emergency in which case VCL shall use reasonable endeavours to provide sufficient notice to the Buyer to enable it to protect its data.
Service maintenance shall not form part of any Service Level availability calculation.
Where the Buyer is required to give notice in writing to VCL, the notice must be addressed to the individual who signed the Agreement on behalf of VCL at the address set out in the Agreement with a copy to the Company Secretary, at Viewdeck Consulting Limited,3rd Floor, 207 Regent Street, London, UK, W1B 3HH.
Where VCL is required to give notice in writing to the Buyer, the notice will be addressed to the person who signed the Agreement (or that person’s successor) at the address stated in the Agreement (or current place of business if VCL knows this to be different).
All notices in writing must be sent by post or delivered by hand to the addressee.
In the absence of evidence of earlier delivery:
A notice sent by post will be deemed to have been served two business days after posting.
A notice delivered by hand will be deemed received on delivery.
Neither VCL nor the Buyer will be liable for any failure to perform their obligations, or delay in the performance of their obligations, if the failure or delay is due to causes outside their reasonable control.
Neither Party shall make any statement about the Service to the press or the public without the other Party’s written consent.
Buyer recognises and acknowledges that VCL may be required to make a regulatory announcement concerning this Agreement in accordance with London Stock Exchange rules and no such prior written consent shall be required in such circumstances.
If any provision or part of a provision of the Agreement is held to be invalid, illegal or unenforceable that part shall be severed and the remaining provisions shall continue to be valid and enforceable as if the Agreement had been executed with the invalid provision omitted.
Bribery & Corruption
The Parties hereby confirm that they have “adequate procedures” in place in accordance with the Bribery Act 2010.
Applicable Law & Jurisdiction
The Agreement shall be governed by and construed in accordance with the laws of England.
Any dispute arising out of or in connection with the Agreement will be subject to the exclusive jurisdiction of the English Courts.