Videosoft Terms and Conditions

Videosoft Global Ltd (company number 12929217), whose registered office is at 22 Wycombe End, Beaconsfield, England, HP9 1NB (Company) provides software and hardware solutions for the compression and transmission of live video, over a range of wireless networks.

These terms and conditions (Terms) are the terms on which the Company will provide software, products and services to the Customer. These Terms, together with the Order Confirmation issued by the Company in respect of the Customer’s Order, supersede all other terms and apply to the supply of software, products and services by the Company to the exclusion of all other terms the Customer may seek to impose or incorporate or which may be implied by custom, practice or course of dealing and the Customer hereby waives all rights it may have to rely on the same. Any quotation, order form or other document addressed to the Customer by the Company is not an offer to supply software, products or services and shall not form part of the Contract unless the Company expressly states otherwise in writing.

By placing an Order, the Customer agrees to these Terms.

Definitions and Interpretation
1. The definitions and rules of interpretation in this clause apply in these Terms.
  Applicable Law: any laws or regulations, regulatory policies, guidelines or industry codes in force from time to time, which apply to the Contract or its subject matter.
  
  Authorised Users: those employees, agents, and independent contractors of the Customer who are authorised by the Customer to access and use the Software.
  
  Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks are open for business.
  
  Confidential Information: shall mean all information that is proprietary or confidential of a party, including any and all commercial, financial and business information, technical information, and information relating to products, software, designs, specifications, diagrams, drawings, processes, methods, know-how, ideas, techniques, algorithms, inventions, materials, plans and presentations.
  
  Consultancy Services: any consultancy services to be provided by the Company to the Customer pursuant to an Order (other than the Support), as set out in the Order Confirmation, which may include the implementation and use of the Software, training in connection with the use of the Software, and configuration of the Software.
  
  Contract: the contract between the Company and the Customer, incorporating these Terms and the Order Confirmation.
  
  Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
  
  Customer: means the customer whose details are set out in the Order Confirmation.
  
  Customer Data: all text, information, data and any other material of the Customer, which is transmitted via the Software, or which is otherwise provided by the Customer to the Company under or in connection with the Contract.
  
  Documentation: any user documentation and information in respect of the use of the Software, made available by the Company from time to time (including any operating or technical information or documentation).
  
  Fees: the fees payable by the Customer to the Company for the Software and/or Services, as set out in the Order Confirmation or otherwise set out in the Contract.
  
  Force Majeure Event: means, in respect of a party, any event beyond that party’s reasonable control including: acts of God, flood, storm, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, war or armed conflict, civil commotion, threat of or preparation for war; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority; collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts (other than by the party seeking to rely on this clause); interruption or failure of utility service; non-performance of subcontractors.
  
  Initial Term: the initial term for the Customer’s Software license and/or provision of Services, as set out in the Order Confirmation (if applicable).
  
  Insolvency Event: means, in respect of a party, that: (a) it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; (b) it enters into a composition, compromise or arrangement to reschedule or restructure its indebtedness with or for the benefit of its creditors; (c) it compulsorily or voluntarily enters into liquidation (except for the purpose of a bona fide reconstruction or amalgamation); (d) it obtains or takes steps to obtain a moratorium within the meaning of section 1 of the Corporate Insolvency or Governance Act 2020; (e) an administrator, receiver, liquidator or manager is appointed over the whole, or a substantial part, of its undertaking or assets; (f) it ceases or threatens to suspend or cease carrying on all or a substantial part of its business; (g) a resolution is made or a notice is filed in connection with its winding up or dissolution; (h) any steps or action are taken in preparation for any of the aforementioned events; or (i) any event occurs or proceeding is taken with respect to it in any jurisdiction (including in the UK) to which it is subject that has an effect equivalent or similar to any of the aforementioned events.
  
  Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, 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.
  
  Nominated Email Address: the email address nominated by the Customer for the purpose of receiving notices and information under or in connection with the Contract, as set out in the Order Confirmation.
  
  On-Premise Software: the Software ordered by the Customer from the Company, as detailed in the Order Confirmation, and provided by the Company for installation on a Permitted Device, and to be hosted on the Customer’s own private network.
  
  Order: a request for the supply of Software, Products and/or Services made by the Customer to the Company (in writing or verbally). Unless expressly stated otherwise by the Company in writing, the Customer’s Order shall not form part of this Contract.
  
  Order Confirmation: written acceptance of the Customer’s Order issued by the Company and setting out the commercial terms which shall apply to such Order.
  
  Permitted Device: a Recording Device on which the Software may be installed.
  
  Price: means the price payable by the Customer to the Company for any Products, as set out in the Order Confirmation.
  
  Products: any hardware or other products ordered by the Customer from the Company, as detailed in the Order Confirmation.
  
  Quotation: aa written quotation issued by the Company for the supply of Software, Products and/or Services. Unless expressly stated otherwise by the Company in writing, the Quotation shall not form part of the Contract.
  
  Recording Device: a video processing unit or device used “in the field” which records a live video or audio, for example a CCTV camera, alarm system or audio microphone, and from which video footage is transmitted to a Viewing Device.
  
  Renewal Period: the renewal period for the Software license and/or provision of Services, as set out in the Order Confirmation (if applicable).
  
  SaaS Software: the Software ordered by the Customer from the Company, as detailed in the Order Confirmation, and provided by the Company on a “software as a service” basis, hosted by the Company.
  
  Services: the Support and any Consultancy Services ordered by the Customer from the Company, as detailed in the Order Confirmation.
  
  Software: the Company’s software which enables the transmission of videos and audio in real-time from a Recording Device to a Viewing Device, to be provided either as SaaS Software or On-Premise Software, and software which can be installed on a Recording Device or Viewing Device.
  
  Software Term: shall have the meaning given in clause 2.1.
  
  Software Updates: any update or patch to the Software which has been produced primarily to overcome any defect or error in the relevant software, excluding any new versions of or upgrades to the Software.
  
  Start Date: : the date set out in the Order Confirmation.
  
  Support: the support services to be provided by the Company to the Customer, as set out in the Support Schedule.
  
  Support Schedule: the support schedule setting out the Support that may be provided by the Company, as set out at www.videosoftglobal.com/support-schedule, and as may be updated or amended from time to time by the Company.
  
  Third Party Software: shall have the meaning set out in clause 3.4.
  
  Viewing Device: a device which receives a live transmission from a Recording Device using the Software.
  
  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 affects the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. Unless the context requires otherwise, the singular includes the plural and vice versa.
3. Clause, Schedule and paragraph headings are inserted for convenience only and shall not affect the interpretation of these Terms.
4. References to clauses and Schedules are to the clauses and schedules of these Terms, and references to paragraphs are to paragraphs of a Schedule.
5. References to the Contract include the Schedules to these Terms. The Schedules form part of the Contract and shall have effect as if set out in full in the body of these Terms.
6. A reference to a party includes that party’s personal representatives, successors and permitted assigns.
7. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision.
8. Any words following the terms other, including, include, for example, in particular, 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.
9. An obligation on a party not to do or omit to do anything includes an obligation not to allow that thing to be done or omitted to be done by any other person.
10. In the event of any conflict or inconsistency between the Order Confirmation and any provision in these Terms, the Order Confirmation shall take precedence. In the event of any conflict or inconsistency between the Order Confirmation and the Quotation, the Order Confirmation shall take precedence.
Software
1. Where the Customer has purchased a Software subscription and/or other Services, the term of the Customer’s Software subscription (and the provision of Services, if any) shall commence on the Start Date and shall continue for the Initial Term unless terminated earlier in accordance with these Terms. Thereafter, the Customer’s Software subscription and provision of the Services shall automatically renew for successive Renewal Periods, unless either party provides written notice of termination to the other party at least 60 days prior to the expiry of the Initial Term or then current Renewal Period (as applicable), in which case the Customer’s Software subscription and provision of the Services shall terminate upon the expiry of the Initial Term or the relevant Renewal Period (as applicable). The Customer shall not be entitled to give notice to terminate under this clause 2.1 unless all outstanding invoices have been paid in full. The Initial Term and Renewal Period shall together be the Software Term.
2. Where the Customer has purchased a subscription to use the On-Premise Software, as set out in the Order Confirmation:
  (a) the Company shall issue to the Customer a license key to enable the Customer to download and install the Software on Permitted Devices via a link. The Customer shall only be permitted to install the Software on the number of Permitted Devices set out in the Order Confirmation; and
  (b) the Customer shall, in consideration of the Customer paying the Fees and subject to the Customer complying with the terms of the Contract, have a non-exclusive, non-transferable license to use the Software and the Documentation, for its own internal business operations only, during the Software Term.
3. Where the Customer has selected the SaaS Software, as set out in the Order Confirmation:
  (a) the Company shall set up the SaaS Software, and issue to the Customer a license key to enable the Customer to download and install the Software required in order to use and access the SaaS Software, via a link; and
  
  (b) the Company shall, in consideration of the Customer paying the Fees, and subject to the Customer complying with the terms of the Contract, provide to the Customer, and allow Authorised Users, access to the SaaS Software, during the Software Term.
4. The rights granted under clause 2.2(b) and 2.3(b) are personal to the Customer and the Customer may not sub-license, transfer or assign such rights.
5. Any configuration services provided by the Company to the Customer shall be considered Consultancy Services for the purpose of these Terms.
6. In respect of the SaaS Software, the Company shall be entitled to make changes, modifications or additions, to the Software from time to time in its sole discretion, provided that any such change, modification or addition shall not have a material adverse effect on the performance of the SaaS Software. The Company shall be entitled to implement Software Updates to the Software.
7. In respect of the On-Premise Software, the Company shall notify the Customer via email to the Nominated Email Address of any Software Updates, or the Company may allow customers to register for email notifications of Software Updates, and the Customer shall be solely responsible for implementing any such Software Updates. If the Customer requires any assistance from the Company in installing such Software Update, any such assistance provided by the Company will be provided as Consultancy Services (for which an additional Fee may be payable). The Company has no responsibility to provide any Support in respect of an older version of the Software where a Software Update has been released and provided to the Customer by the Company and such Software Update has not been installed by the Customer.
8. The Company shall have no obligation to provide the Customer with new versions of the Software under the Contract.
Use of the Software Services and Customer’s obligations
1. The Customer undertakes that:
  (a) each Authorised User shall keep their password for accessing the Software secure and confidential at all times; and
  
  (b) it shall maintain a written, up-to-date list of current Authorised Users and provide such list to the Company within five Business Days of its written request at any time, and shall notify the Company if it becomes aware of any unauthorised use of a password used to access the Software.
2. The Customer shall, and shall procure that all Authorised Users shall:
  (a) comply with all Applicable Law (including the Regulation of Investigatory Powers Act 2000 and the Data Protection Legislation), and any instructions issued by a regulatory body, in its use of the Software;
  
  (b) use the Software and Documentation in accordance with the Contract, and shall be responsible for any Authorised User’s use of the Software or breach of the Contract;
  
  (c) obtain and shall maintain all necessary licenses, consents and permissions which are necessary to enable it to comply with its obligations under the Contract and in respect of its use of the Software;
  
  (d) provide the Company with all necessary cooperation and access to such information, premises, hardware, systems and network, as are required by the Company in order to perform the Services (including Customer Data, security access information and systems and technical information), and shall ensure that such information is accurate and complete;
  
  (e) ensure that it has all necessary hardware, desktop software, internet, network communications and other technology, and that the Customer’s computer equipment, systems, network and browser meet all technical requirements applicable to access and use of the Software specified by the Company from time to time; and
  
  (f) use reasonable endeavours to prevent any unauthorised access to, or use of, the Software (including implementing and maintaining adequate security measures and policies in accordance with good industry practice) and, in the event of becoming aware of any such unauthorised access or use, shall immediately notify the Company and shall give the Company all assistance that it reasonably requires to prevent such unauthorised access.
3. The Customer shall not, and shall procure that its Authorised Users shall not:
  (a) use the Software in any way that breaches any Applicable Law, or to commit any fraud or fraudulent activity;
  
  (b) use any of the Software to transmit any material that:
  
  (i) is unlawful, harmful, threatening, defamatory, obscene, indecent, infringing, harassing, racially, religiously or ethnically offensive, or otherwise objectionable;
  
  (ii) infringes any Intellectual Property Rights, rights of privacy, personality or publicity or other third party rights;
  
  (iii) contains unsolicited or unauthorised advertising or promotional content;
  
  (iv) facilitates or promotes illegal activity;
  
  (v) threatens the security and/or confidentiality of the Software Services; and/or
  
  (vi) causes damage to injury to any person or property;
  
  (c) in respect of the SaaS Software:
  
  (i) store, distribute or transmit any Viruses (or attempt to do the same) during the course of its use of the Software, or attack the Software via a denial-of-service attack or a distributed denial-of-service attack;
  
  (ii) attempt to access without authority, interfere with, damage or disrupt any part of the Software;
  
  (d) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form, all or any part of the Software, or copy, modify, translate, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any part of the Software and/or Documentation in any form or media or by any means (including by using any robot, spider or other automated device or manual process), save to the extent that any such actions are necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer where the Customer has purchased a subscription to use the On-Premise Software;
  
  (e) access all or any part of the Software and/or Documentation in order to build a product or service which competes with the Software; or
  
  (f) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit, or otherwise make the Software or Documentation available to any third party (except the Authorised Users), or use the Software to provide services to third parties.
4. The Customer’s use of any third party applications, software, services or products that are licensed by a third party to the Customer or its Authorised Users and which are used in connection with the Software (Third Party Software), and any exchange or other transfer of any information between the Customer and any third party provider, is solely between the Customer and the applicable third party. The Company makes no warranties of any kind and assumes no liability whatsoever for the Customer’s or its Authorised Users’ use of any Third Party Software, or any such exchange or transfer of data.
5. The Customer shall permit the Company or its designated representative, on giving reasonable notice, to audit the use of the Software by the Customer and Authorised Users, to establish whether such use is in compliance with the Contract.
6. The Customer acknowledges and agrees that the Company shall not be liable to the Customer for any service disruptions, interruptions, delays or failures to the Software, as a result of the Customer’s breach of its obligations under this clause 3.
7. The Software uses libraries from the FFmpeg project. The Company does not own FFmpeg. FFmpeg is licensed under the GNU Lesser General Public License v2.1 or later. A copy of this licence is available at www.gnu.org/licenses/old-licenses/lgpl 2.1.txt. FFmpeg is a trade mark of Fabrice Bellard, originator of the FFmpeg project. Clauses 3.3(c)(ii), (d), (e) and (f) shall not apply to FFmpeg as used within the Software.
Supply of Products
1. Where the Customer has ordered Products, this clause 4 shall apply.
2. The Company shall deliver the Products to the Customer at the location set out in the Order Confirmation. The costs of delivery shall be borne by the Customer in addition to the Price.
3. The Company shall be entitled to make deliveries of the Products in instalments.
4. Any delivery dates provided by the Company are approximate only and time for delivery is not of the essence. The Customer shall not be entitled to reject any delivery as a result of any delay in delivering the Products.
5. If the Company fails to deliver the Products, the Customer’s sole remedy shall be a refund of any sums paid in advance for the non-delivered Products, save that the Company shall have no liability to the Customer for any failure or delay in delivery of the Products that is caused by the Customer’s failure to provide the Company with adequate delivery instructions.
6. If the Customer fails to accept delivery of the Products on a delivery date notified by the Company to the Customer:
  (a) the Customer will pay to the Company all transit, storage and waiting time costs and any other loss, damage and expenses incurred by the Company arising from such failure;
  
  (b) delivery of the Products will be deemed to have completed at 9am on such delivery date; and
  
  (c) if the Customer fails to take delivery of the Products within seven days of such date, the Company shall have the right to re-sell or otherwise dispose of the Products.
7. Risk in the Products set out in the Order Confirmation shall pass to the Customer on delivery in accordance with clause 4.2.
8. Notwithstanding delivery, title to the Products supplied by the Company to the Customer shall not pass to the Customer until receipt of full payment by the Company, in clear funds, for the Products.
9. Until title to the Products has passed to the Customer, the Customer shall: (a) mark or identify the Products as belonging to the Company; (b) not encumber, charge or grant security over the Products; (c) notify the Company immediately if the Customer becomes subject to an Insolvency Event; (d) ensure that the Products are stored appropriately and kept in good condition; (e) insure the Products for an amount equal to at least their list price; and (f) provide such information relating to the Products as the Company may require from time to time.
10. If before title to the Products passes to the Customer the Customer becomes subject to an Insolvency Event, then, without limiting any other right or remedy to which the Company may be entitled: (a) the Company may at any time require the Customer to deliver up all Products in its possession; and (b) the Customer shall permit the Company, and grant the Company an irrevocable license, to enter any premises where the Products are stored and recover them.
Company obligations for provision of Services
1. The Company shall:
  (a) provide any Services with all reasonable skill and care, using personnel who are suitably qualified and trained; and
  
  (b) in respect of the Company’s attendance at the Customer’s premises in the provision of the Services, comply with reasonable policies of the Customer (including for security and health and safety) as have been provided to the Company.
Warranties and remedies
1. The Company warrants that, on delivery, the Products shall be free from material defects and be of satisfactory quality (within the meaning of the Sales of Goods Act 1979).
2. If any Products supplied by the Company to the Customer do not comply with the warranty set out in clause 6.1, the Customer shall:
  (a) within 7 days of receipt of such Products, notify the Company in writing, providing a description of the defect(s);
  
  (b) if requested by the Company and at the Customer’s cost, return such Products to the Company within the timeframe specified by the Company and/or send images of the Products to the Company, and provide the Company with a reasonable opportunity to examine the Products.
  
  Following inspection of the relevant Products, the Company shall notify the Customer if the relevant Products do not comply with the warranty set out in clause 6.1, and in such event, the Company shall, at its option, and subject to the Customer’s compliance with this clause 6.2, repair or replace the relevant Products (at the Company’s cost) or issue a refund to the Customer of the Price of the relevant Products.
3. The Company shall not be liable under clause 6.1 if:
  (a) the Customer makes any further use of the Products after giving notice to the Company in accordance with clause 6.2(a);
  
  (b) the defect arises because the Customer failed to follow the Company’s instructions as to the storage or use of the Products or good trade practice regarding the same;
  
  (c) the Customer altered or repaired the Products without the Company’s written consent; or
  
  (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
4. The remedy set out in clause 6.2 shall be the Customer’s sole and exclusive remedy and the Company shall have no further liability to the Customer for any defect in the quality of the Products.
5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded.
6. In respect of the On-Premise Software, the Company warrants that the Software will be free from material defects for a period of 12 months from the Start Date (the Warranty Period).
7. If, during the Warranty Period, the Customer notifies the Company that the Software does not comply with the warranty set out in clause 6.6, and such defect does not result from the Customer or anyone acting on behalf of the Customer, having amended the Software or used it outside the terms of the Contract for a purpose or context other than the purpose or context for which it was designed or in combination with any other software not provided by the Company, or the Software being loaded onto equipment which has not been approved by the Company, the Company shall seek to remedy the defect in accordance with and subject to any limitations of the Support Schedule, and if the Company is unable to repair the defect, the Company may terminate the Contract with immediate effect on written notice to the Customer, in which case, the Company shall refund any Fees paid by the Customer in advance for the Software in respect of any unused period of the Software Term during which the Customer has not had any use of the Software.
8. The Company gives no warranty or representation that the Software will meet the Customer’s requirements. The Customer shall be solely responsible for ensuring that the Software meets its requirements. The Software is provided “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract, including the implied conditions, warranties and other terms as to satisfactory quality and fitness for purpose.
9. In respect of the SaaS Software, the Company gives no warranty or representation that use of the Software will be uninterrupted, available or error free.
Support
1. For Customers who have purchased a subscription to use the SaaS Software, the Company shall provide Support to the Customer as part of the Customer’s subscription. For Customers who have purchased a subscription to use the On-Premise Software, Support shall be provided to the Customer only if the Customer has ordered Support and paid the relevant Fees for such Support, as set out in the Order Confirmation.
2. Support shall be provided to the Customer by the Company in accordance with the Support Schedule. The Company may amend the Support Schedule from time to time.
Suspension of the Software
1. The Company shall be entitled, without liability, to temporarily suspend access to and use of the SaaS Software:
  (a) to the extent required in order to improve, update, alter, replace, maintain or repair, the Software, or to implement Software Updates;
  
  (b) where required by any regulatory, governmental or other competent authority;
  
  (c) in the event that the Customer’s or any Authorised User’s use of the Software is in breach of any of the provisions of clause 3;
  
  (d) if any of the events set out in clause 12.1 (with respect to the Customer) or clause 12.2 occurs; or
  
  (e) as a result of, to deal with, or to protect the Software against, any actual, suspected or threatened security breach, Virus, or attack on any of the Software.
Fees and payment
1. The Customer shall pay to the Company in accordance with this clause 9:
  (a) the Fees in respect of any Software and Services ordered by the Customer, as set out in the Order Confirmation; and
  
  (b) the Price for any Products ordered by the Customer, as set out in the Order Confirmation.
2. Unless otherwise agreed by the Company in the Order Confirmation or otherwise in writing, the Company shall invoice the Customer for the Fees as follows:
  (a) in respect of any non-recurring Fees for the Software, in advance following issuance of the Order Confirmation,
  
  (b) in respect of any recurring Fees for the Software, in advance, at the frequency set out in the Order Confirmation;
  
  (c) in respect of the Fees for Support, annually in advance, with effect from the Start Date;
  
  (d) the Price payable for the Products on or before delivery;
  
  (e) the Fees for the provision of any Consultancy Services monthly in arrears. Fees for any Consultancy Services shall be payable on a time and materials basis.
3. The Customer shall be responsible for all expenses incurred by or on behalf of the Company in the provision of the Services, in respect of which receipts or other evidence of payment has been provided.
4. Unless set out otherwise in the Order Confirmation, the Customer shall pay each invoice in full and cleared funds within 30 days of the date of invoice to the bank account specified on the invoice.
5. If the Customer fails to make any payment due to the Company by the due date for payment, the Company may, without prejudice to any other rights and remedies it may have:
  (a) suspend the Customer’s use of and/or access to the Software and Services, and the Company shall be under no obligation to provide any Services while the invoice(s) concerned remain unpaid;
  
  (b) suspend delivery of any undelivered Products until payment of the overdue amount is received in full by the Company;
  
  (c) charge the Customer interest on a daily basis in respect of the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time, from the due date and continuing until payment of the overdue amount is received in full by the Company, whether before or after judgment; and/or
  
  (d) recover from the Customer any fees incurred by the Company (including debt recovery agency fees, legal fees and court costs) in recovering the overdue amount.
6. All amounts and fees stated or referred to in the Contract:
  (a) shall be payable in pounds sterling, unless stated otherwise in the Order Confirmation;
  
  (b) are non-refundable, and are exclusive of value added tax payable upon such sums, which shall be payable by the Customer in addition at the applicable rate;
  
  (c) shall be paid in full without any deduction, discount, set off or abatement except as required by law and the Customer shall not be entitled to assert any credit, set off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
7. The Company may increase the Fees at any time to take effect after the Initial Term, upon giving 60 days’ notice to the Customer. The Company may increase the Fees for any Consultancy Services at any time upon giving 60 days’ notice to the Customer.
Intellectual Property Rights
1. The Customer Data is the property of the Customer and/or its licensors. The Customer hereby grants a royalty-free, worldwide license to the Company to use the Customer Data as necessary to provide the Software to the Customer. The Customer warrants that it has all necessary rights in and to the Customer Data in order to grant the rights under this clause 10.1.
2. The Customer acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights subsisting in and/or relating to the Software and Documentation, and any modifications and enhancements made thereto (including in all Updates and new versions). Except as expressly granted under these Terms, the Customer shall not have the right to use, or acquire any other right, license, title or interest in or to, any Intellectual Property Rights of the Company or its licensors.
3. The Customer may not remove or obscure any trade marks, or any copyright, trade mark or proprietary notices featured, displayed or provided on the Software or any Products.
Limitation of liability
1. Nothing in the Contract excludes the liability of either party for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be limited or excluded under Applicable Law.
2. Without prejudice to clause 11.1, the Company shall have no liability:
  (a) 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 Customer acknowledges that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
  
  (b) for any impaired performance or non-performance of the Software arising from a failure to comply with any specifications or technical requirements relating to use of the Software notified by the Company from time to time; or
  
  (c) for any fault, failure or unavailability of any of the Software caused by the Customer’s or any third party’s software, or as a result of any failure, unavailability, speed or limitations of the Customer’s internet and network communications, computer equipment and/or web browser.
3. The Company shall not be liable whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any of the following types of losses, howsoever arising under the Contract:
  (a) loss of profits;
  
  (b) loss of sales or business;
  
  (c) loss of agreements or contracts;
  
  (d) loss of anticipated savings;
  
  (e) loss of opportunity;
  
  (f) loss of goodwill;
  
  (g) loss of use or corruption of software, data or information; or
  
  (h) special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
4. The Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract, in any calendar year, shall:
  (a) in respect of any defect in or issue with the Software, not exceed the Fees paid by the Customer to the Company in respect of the Software under the Order Confirmation;
  
  (b) in respect of any defect in or issue with a Product, not exceed the Price paid by the Customer to the Company in respect of the Product under the Order Confirmation; and
  
  (c) in respect of any defective Services, not exceed the Fees paid by the Customer to the Company in respect of the Services under the Order Confirmation.
Termination
1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
  (a) commits a material breach of any of the terms of the Contract, which is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so; or
  
  (b) is subject to an Insolvency Event.
2. The Company may terminate the Contract with immediate effect by giving written notice to the Customer, without liability, if:
  (a) the Customer fails to pay any amount due under the Contract within 14 days of the due date for payment; or
  
  (b) the Customer’s or any Authorised User’s use of the Software is in breach of clause 3.2 or 3.3.
Consequences of termination
1. On termination of the Contract for any reason:
  (a) all rights and licenses granted under the Contract shall immediately terminate and the Customer shall immediately cease using, and the Company may with immediate effect terminate the Customer’s and all Authorised Users’ access to and use of, the Software and Services;
  
  (b) the Customer shall immediately (at the Company’s option) destroy or return to the Company all copies of the Software that are in the Customer’s possession, custody or control as at the date of termination;
  
  (c) each party shall return and make no further use of any equipment, property, Confidential Information and other items (as applicable), and all copies of them, belonging to the other party;
  
  (d) the Customer shall immediately pay to the Company all sums due to the Company under the Contract, and in respect of any sums which have not yet been invoiced, the Company may raise invoices for such sums which shall become immediately payable;
  
  (e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced; and
  
  (f) the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
Data Protection
In respect of any personal data which is processed by the Company on behalf of the Customer in connection with the SaaS Software or in the provision of the Services, the parties shall comply with the Data Processing Schedule in Schedule 1.
Confidentiality
1. Each party shall keep all Confidential Information of the other party confidential and shall not disclose any Confidential Information to a third party without the prior written consent of the other party, and shall not use the Confidential Information of the other party for any purpose other than the performance of its obligations under the Contract.
2. Each party may only make the Confidential Information of the other party available to its employees who need to know the Confidential Information in order to perform its obligations or exercise its rights under the Contract, provided that such persons are subject to confidentiality obligations and the receiving party remains responsible for any breach of these confidentiality obligations by such personnel as if it were its own.
3. The Confidential Information shall not include any information that:
  (a) was in the other party’s lawful possession without any confidentiality obligations prior to its receipt hereunder; or
  
  (b) is or becomes publicly available through no act or omission of the receiving party.
4. A party may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and takes into account the reasonable requests of the other party in relation to the content of such disclosure.
Force majeure
1. If a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract (other than payment) by a Force Majeure Event, the affected party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations, and the time for performance of such obligations shall be extended accordingly. The party affected by such Force Majeure Event shall notify the other party as soon as reasonably practicable of the Force Majeure Event.
2. If the Force Majeure Event prevents, hinders or delays a party’s performance of its obligations under the Contract for a continuous period of more than 60 days, the party not affected by the Force Majeure Event may terminate the Contract by giving 30 days’ written notice to the other party.
Notices
1. Subject to clause 17.2, any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service to its address set out in the Order Confirmation or such other address as notified by that party in accordance with this clause from time to time. Notices may also be given by email if a party has notified the other party (in accordance with this clause) of the relevant email address to which notices must be sent and that service of notices by email will be accepted.
2. The Company may give notices to the Customer via email to the Nominated Email Address.
3. Notices shall be deemed to have been delivered: (i) at the time of delivery where delivered by hand; (ii) two Business Days after the date of posting where sent by domestic post; (iii) five Business Days after the date of posting where sent by international post; or (iv) one Business Day after transmission in the case of email (provided that no delivery failure notification is received by the sender).
4. This clause does not apply to the service of any proceedings or other documents in any legal action.
Non-Solicitation
1. Except as expressly permitted by these Terms, neither party will without the written consent of the other party at any time during the Software Term and for six (6) months after termination or expiration of the Software Term, directly or indirectly solicit, engage, employ, or endeavour to entice away from the other party any person who is or was during the preceding six (6) months an employee of the other party and engaged in the provision or receipt of the Services.
Export Compliance
1. The Customer shall: (a) not export the Software (or any license key) or allow Authorised Users to access or use the Software in breach of any applicable laws or regulations, which apply to either the Customer or Company, in any territory (Export Control Laws), or to any country for which the government, or any regulatory body or agency in a relevant territory requires, at the time of export, an export license or other governmental approval, without first ensuring that such license or approval has been obtained; (b) comply with all Export Control Laws, and not do anything which would cause the Company to breach such Export Control Laws; and (c) provide to the Company any assistance required by the Company to enable it to perform any activity required by any government, regulatory body or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
General
1. Assignment. The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
2. Entire agreement. The Contract, and any documents referred to in it (including the Order Confirmation), constitute the entire agreement between the parties and supersede, replace and extinguish any previous arrangement, understanding or agreement between them, whether written or oral, relating to its subject matter. Any descriptions, specifications, beta versions, samples, advertisements and statements provided by the Company (whether on the Company’s website or literature or otherwise) are approximate only and shall not form part of the Contract nor give rise to any liability for the Company. Each party acknowledges that it has not been given, nor entered into the Contract in reliance on, any warranty, statement, promise or representation other than as expressly set out in the Contract. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
3. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract 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. 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.
4. Severance. If any provision or part-provision of the Contract is found by any court to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
5. Variation. Save as expressly permitted otherwise in the Contract, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
6. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish or imply any partnership or joint venture between the parties, constitute one party the agent or employee of the other party, or authorise one party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
7. Third party rights. The Contract does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
Governing law and jurisdiction
1. 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. 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.

SCHEDULE 1

Data Processing Schedule

This Schedule applies in respect of any personal data which is processed by the Company on behalf of the Customer in the provision of the SaaS Software or the Services.

Definitions
The capitalised terms used in this Schedule shall have the meanings given to them in the Terms, unless otherwise defined herein. The following definitions will apply in this Schedule and its Appendix:

Customer Personal Data: any personal data which is processed by the Company on behalf of the Customer under the Contract.

Data Protection Legislation: all applicable legislation and regulations relating to personal data in force from time to time which apply to a party, relating to the processing of personal data, including the Data Protection Act 2018 (the UK DPA), the UK GDPR as defined in section 3(10) (as supplemented by section 205(4)) of the UK DPA (the UK GDPR), and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, in each case as may be further amended, extended, consolidated, re-enacted, replaced or superseded from time to time.

Data Subject Request: a request from a data subject to exercise the data subject’s rights under and in accordance with the Data Protection Legislation, including requests for access to personal data, rectification or erasure of personal data, restrictions of processing personal data, and portability of personal data.

The terms controller, processor, personal data, data subject, data protection impact assessment and personal data breach shall each have the meanings set out in the Data Protection Legislation.
General
The parties acknowledge that the Company may process the Customer Personal Data on behalf of the Customer in providing the SaaS Software or the Services under the Contract.
Customer’s obligations
1. It shall be the Customer’s responsibility to:
  (a) ensure that the Customer has a lawful basis and all necessary and appropriate consents and notices in place, to enable the Customer to process and to allow the Company to process the Customer Personal Data in the manner envisaged by this Schedule; and
  
  (b) ensure that instructions for the processing of Customer Personal Data comply with the Data Protection Legislation, and it shall be responsible for the provision of fair processing information, as required under the Data Protection Legislation, to relevant data subjects.
2. The Company shall have no liability to the Customer arising from the Customer’s failure to comply with the requirements set out in paragraph 3.1.
3. The Customer shall be solely responsible for:
  (a) the integrity, legality and accuracy of the Customer Data held on or processed using the SaaS Software; and
  
  (b) taking reasonable steps and observing good industry practice in respect of the measures it has in place to maintain the security of the Customer Data.
Processing obligations
1. The Company shall, in relation to any Customer Personal Data processed by the Company on the Customer’s behalf under the Contract:
  (a) process that Customer Personal Data to the extent necessary to perform the Company’s obligations under the Contract, unless otherwise required by law, regulation, court of competent jurisdiction or any other governmental or regulatory body;
  
  (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected;
  
  (c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential;
  
  (d) provide reasonable assistance, at the Customer’s request and cost, in responding to any request from a Data Subject, where the Customer does not have access to such information to be able to respond to the request, and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  
  (e) notify the Customer without undue delay on becoming aware of a personal data breach affecting the Customer Personal Data;
  
  (f) maintain information regarding its processing activities in relation to the Customer Personal Data.
2. The Company shall allow for audits by the Customer or the Customer’s designated auditor of the Company’s procedures relevant to the processing of Customer Personal Data, provided that in the case of any audit, the Customer shall:
  (a) comply with any reasonable requirements or security restrictions that the Company may impose to safeguard the Company’s systems, data held on the Company’s systems, and the Company’s own confidential or commercially sensitive information and to avoid unreasonable disruption to the Company’s business and operations; and
  
  (b) reimburse the Company for the time it expends in respect of such audit, at the Company’s then current professional services rates, and before the commencement of any audit, the parties shall mutually agree on the scope, timing and duration of the audit.
3. The Customer hereby consents to the Company appointing third party processors in respect of the Customer Personal Data under the Contract, provided that the Company shall notify the Customer of any intended changes concerning the addition or replacement of such processors and provide the Customer with the opportunity to object to such changes on information security grounds. If the Customer has not objected to any such changes within a period of 14 days of the date of notification of the changes, the Customer shall be deemed to have accepted such changes. The Company shall have a written contract in place with such third party processors which imposes obligations on the processors that are equivalent to those set out in this Schedule.
4. If at any time the Customer has reason to believe that the processing of any Customer Personal Data under the Contract is in breach of the Data Protection Legislation, the Customer shall immediately notify the Company.
Liability
The Company’s liability under or in connection with this Schedule shall be subject to the limitations and exclusions of liability set out in clause 11 of the Contract.

Appendix

The Company may process personal data on behalf of the Customer as follows:

Nature and purpose of processing

In cases where the Customer uses the SaaS Software, the compression and transmission of video content captured via Recording Device may involve the processing of Customer Personal Data using Software hosted by the Company.

The Company may also be provided with access to Customer Personal Data in the provision of Support.

Types of personal data

Any factors which would identify an individual, such as image and/or voice, which is recorded on a Recording Device

Categories of data subjects

Members of the public whose personal data is recorded on a Recording Device

Duration of processing

The Company shall process Customer Personal Data for the period that it is held on the SaaS Software during the term of the Contract.

Version 3 | 22.11.2023

Videosoft Terms and Conditions

SCHEDULE 1

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