Our Customer Terms And Conditions

Last updated: August 2023

These Vizzy Customer Terms and Conditions, together with any applicable Order Form and Documentation, (collectively the “Vizzy Customer Agreement”) set out the terms on which Thinking Sky Blue Limited (trading as “Vizzy”), a company registered in England and Wales under company number 12990046, whose registered office is at The Dairy, Manor Courtyard, Aston Sandford, Bucks, England, HP17 8JB (“we”,“us”,“Vizzy”) agrees to provide the Customer with the Vizzy Services.

Please read these Vizzy Customer Terms and Conditions carefully. By either: (a) accepting these Vizzy Customer Terms and Conditions (such as by ticking a box agreeing to the Vizzy Customer Terms and Conditions); (b) accessing or using the Vizzy Services or Vizzy Platform (or authorising the access or use of the same); or (c) by signing an Order Form, you acknowledge and agree that you are either a Customer or acting on behalf of a Customer and that you are authorised to act on the Customer’s behalf (in which case any references to“you” and “your” shall be understood to mean the Customer). In each case, you agree to be bound by these Vizzy Customer Terms and Conditions, Vizzy’s Terms of Use and our Privacy Policy.

If there is any inconsistency between the provisions of: (i) an Order Form; (ii) the Vizzy Customer Terms and Conditions; and (iii) Documentation, the provisions of the Order Form(s) shall prevail to the extent of any inconsistency, followed by the Vizzy Customer Terms and Conditions, followed by any applicable Documentation.

We may modify these Vizzy Customer Terms and Conditions from time to time by updating them on the Website or by direct written notice to the Customer. If a modification is material, as reasonably determined by Vizzy in its sole discretion, then we will make commercially reasonable efforts to notify you of the change. Continued access or use of the Vizzy Platform and/or Vizzy Services will constitute acceptance of the new Vizzy Customer Terms and Conditions. If you do not agree with the updated Vizzy Customer Terms and Conditions, you shall, and shall procure that Authorised Users, immediately stop using the Vizzy Platform and Vizzy Services under the terms of the applicable Plan.

Definitions
1. The following words and expressions will have the following meanings:
2. Admin User: means an Authorised User who has been specifically appointed by a Customer as its representative in respect of managing the Plan and Authorised Users under that Plan, as more particularly described under an applicable Order Form.
3. Authorised User: any employee, independent contractor or prospective employee of the Customer who is authorised by the Customer to use the Vizzy Platform and/or Vizzy Services and the Documentation subject to purchase of a corresponding User Subscription, as further described in clause 2.1 and subject to the Vizzy Customer Agreement and the chosen Plan.
4. Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
5. Confidential Information: means all information (however recorded or preserved) disclosed by a party, including any information which is marked as confidential or which a recipient ought to reasonably consider the other party to consider confidential, including but not limited to: (i) any information which relates to the business, affairs, customers, clients, licensors, suppliers, new products, plans, research, intentions, or market opportunities of the disclosing party; and (ii) information relating to the operations, processes, product information, ideas, formulas, source code, data, Intellectual Property Rights or software of the disclosing party (or in relation to Vizzy, any of its third party licensors).
6. Customer: the entity that is procuring the Vizzy Services and which is identified as such on an applicable Order Form, or in the online sign-up process.
7. Customer Data: data, other than User Data, that is inputted by the Customer, Authorised Users, or Vizzy on the Customer's behalf for the purpose of accessing the Vizzy Platform and/or using the Vizzy Services or facilitating the Customer's use of the same.
8. Data Protection Laws: any applicable laws, rules, regulations, regulatory guidance, self-regulatory guidelines, industry standards, implementing legislation, or third-party terms relating to privacy, security, data protection, including but not limited to, as applicable the: (i) UK Data Protection Act 2018 and the GDPR as it forms part of UK law by virtue of section 3 of the European (Withdrawal) Act 2018; and (ii) Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; and (iii) EU e-Privacy Directive (Directive 2002/58/EC); in each case as may be amended, superseded or replaced from time to time.
9. Documentation: the documents, videos and other materials made available to the Customer by Vizzy in paper format or online which sets out a description of the Vizzy Services in accordance with the chosen Plan.
10. Effective Date: means the earlier of: (i) the date on which the Vizzy Platform or Vizzy Services are first accessed or used; (ii) the date on which the Vizzy Customer Terms and Conditions are accepted; or (iii) the Effective Date in the applicable Order Form.
11. Excess Data Storage Fees:means those fees payable by the Customer for excess data storage, as more particularly described in clause 9.5 of these Vizzy Customer Terms and Conditions and which may be more particularly described in an applicable Order Form.
12. Fees: the fees payable by the Customer to Vizzy for the Vizzy Services, as more particularly set out in the Order Form(s), including any applicable Additional User Subscriptions, Excess Data Store Fees or applicable support fees.
13. Force Majeure Event: means any event or occurrence not within a party’s reasonable control, including without limitation, acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat or preparation for war, armed conflict, impositions of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, collapse of buildings, fire, explosion or accident, loss of electrical power, loss of telephone, internet or wide area network, as well as other similar infrastructure and/or material shortages.
14. Initial Term: the initial term during which the Customer wishes to receive the Vizzy Services, as set out in the Order Form or when otherwise selecting a Plan.
15. Intellectual Property Rights: patents, patentable rights, copyright, design rights, rights in computer software, utility models, trademarks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in get-up, goodwill, rights to sue for passing off or unfair competition, and rights to preserve the confidentiality of information (including know-how and trade secrets), and any and all other intellectual and industrial property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
16. Invites: means each unique link generated by the Customer and sent to an individual in order to enable such individual to become an Authorised User. Invites are deemed activated and allocated on execution of the Vizzy Customer Agreement.
17. Normal Business Hours: 8.00am to 6.00pm local UK time, each Business Day.
18. Order Form: means the document, or in the case of the online sign up process, the web page, containing details of the Plan and the Fees, in each case as agreed by Vizzy and the Customer.
19. Plan: the chosen product/s subscription plan setting out the number of Authorised Users and Admin Users for your subscription and the level of support provided.
20. Plan Features: the features requested as part of the Plan including the level of customisation available in respect of each Authorised User’s profile and any data limits as set out in the Order Form(s).
21. Renewal Period: the period described in 14.1.
22. Subscription Term: has the meaning given in 14.1.
23. User Data: information relating to a particular Authorised User in response to the standard Vizzy-led structure of an individual profile and which is not derived from or created by Customer’s own prompt or question.
24. User Subscription: means permission for an Authorised User to access and use the Vizzy Services, in accordance with the terms of that Plan.
25. Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
26. Vizzy Content: all data, information and material owned by or licensed to Vizzy and comprised within the Vizzy Platform and any part of the Vizzy Services but excluding Customer Data.
27. Vizzy Platform: the web-based platform accessible via vizzy.com or such other domain or sub-domains as may be used or provided or by Vizzy from time to time, including such parts which are restricted for Customer’s sole use as part of the Vizzy Services.
28. Vizzy Services: the digital recruitment and/or HR tools and features and related professional and development services from time to time provided by Vizzy to the Customer under this Vizzy Customer Agreement, including via the Vizzy Platform, which is accessed via the Website, as more particularly described in the Order Form.
29. Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
30. Website: means https://vizzy.com/ or such other URL as Vizzy shall designate from time to time.
  Unless the context otherwise requires: (a) references to the singular include the plural and vice versa and references to any gender include every gender; (b) references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority; (c) a reference to “in writing” or “written” includes email; (d) References to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time; and (e) any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
User subscriptions
1. In consideration of the full payment of the Fees, and subject to the terms of the Vizzy Customer Agreement, Vizzy hereby grants to the Customer a non-exclusive, non-transferable revocable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Vizzy Services and the Documentation during the Subscription Term, solely for the Customer's internal business operations and subject to the limitations of the Customer’s applicable Plan. Except for the limited license rights expressly granted under this clause 2.1, nothing in the Vizzy Customer Agreement operates to transfer or to grant, to the Customer or any Authorised User, any license or other rights to use any of the Vizzy Services or Intellectual Property Rights, which shall at all times remain the sole and exclusive property of Vizzy or its licensors.
2. In relation to the Authorised Users, the Customer undertakes and shall procure that:
  1. the maximum number of Authorised Users that it authorises to access and use the Vizzy Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
  2. it will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Vizzy Services;
  3. each Authorised User shall keep a secure password for their use of the Vizzy Platform and shall keep their password confidential;
  4. it shall permit Vizzy or Vizzy's designated auditor to audit the Vizzy Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with the Vizzy Customer Agreement. Each such audit may be conducted no more than once per quarter, at Vizzy's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
  5. if any of the audits referred to in clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Vizzy's other rights, the Customer shall promptly disable such passwords and Vizzy shall not issue any new passwords to any such individual; and
  6. if any of the audits referred to in clause 2.2(d) reveal that the Customer has underpaid Fees to Vizzy, then without prejudice to Vizzy's other rights, the Customer shall pay to Vizzy an amount equal to such underpayment as calculated in accordance with the rates agreed between the parties in writing (or where not agreed in writing, Vizzy’s then current rates) within ten (10) Business Days of the date of the relevant audit.
3. The Customer shall not, and shall procure its Authorised Users do not, access, store, post, distribute or transmit or otherwise make available any Viruses, or any material during the course of its use of the Vizzy Services that:
  1. infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person;
  2. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, or is otherwise objectionable or prohibited;
  3. facilitates illegal activity;
  4. depicts sexually explicit images;
  5. promotes unlawful violence;
  6. is discriminatory on any ground; or
  7. are false or misleading causes damage or injury to any person or property; and
    Vizzy reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
4. The Customer shall not and shall procure its Authorised Users do not:
  1. except as may be allowed by any applicable law or to the extent expressly permitted under this Vizzy Customer Agreement:
    1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Vizzy Platform and/or Documentation (as applicable) in any form or media or by any means; or
    2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Vizzy Platform; or
  2. access all or any part of the Vizzy Services and Documentation in order to build a product or service which competes with the Vizzy Services; or
  3. use the Vizzy Services and/or Documentation to provide services to third parties; or
  4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Vizzy Services and/or Documentation available to any third party except the Authorised Users, or
  5. engage in any fraudulent activity or further any fraudulent purpose; or
  6. violate any applicable laws or regulations; or
  7. use the Vizzy Services to cause harm or interfere with others' use of the Vizzy Services.
5. The Customer shall, and shall procure that its Authorised Users will, use all reasonable endeavours to prevent any unauthorised access to, or use of, the Vizzy Services and, in the event of any such unauthorised access or use, notify Vizzy as soon as reasonably possible.
6. The Customer shall procure that its Authorised Users comply with Vizzy's Terms of Use and User Generated Content Policy, as available on the Website and/or Vizzy Platform from time to time. Without restricting any other right or remedy Vizzy may have directly against an Authorised User, Customer shall be fully responsible to Vizzy in the event of Customer's Authorised User's breach of Vizzy's Terms of Use and User Generated Content Policy.
7. The rights provided under this 5 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
Change in number of User Subscriptions
1. Subject to the provisions of this clause 3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the applicable Order Form.
2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Vizzy in writing. Vizzy shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.
3. If Vizzy approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within thirty (30) days of the date of Vizzy’s invoice, pay to Vizzy the relevant fees for such additional User Subscriptions at the rate set out in the Customer’s Order Form (where provided), or at Vizzy’s then current rate for a User Subscription. Following full payment of fees for such additional User Subscriptions, Vizzy shall promptly activate the additional User Subscriptions. If such additional User Subscriptions are purchased by the Customer part way through the Initial Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Vizzy for the remainder of the Initial Term or then current Renewal Period (as applicable).
Provision of Vizzy Services
1. Subject to compliance by Customer and its Authorised Users with the terms of the Vizzy Customer Agreement and full, timely payment of all applicable Fees, Vizzy agrees to provide the Vizzy Services in accordance with the relevant Plan.
2. Customer acknowledges and agrees that Vizzy has the exclusive right to decide how to develop the Vizzy Services or any part thereof, including the Vizzy Platform. Vizzy may, in its sole discretion, remove or add features to the Vizzy Services at any time without any claims to compensation or any other remedies by Customer, providing this does not in a permanent, material adverse degradation of the Vizzy Services.
3. Portions of the Vizzy Services may utilise or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material may be made available in respect of the Vizzy Services, and Customer and Authorised Users’ use of such material is governed by their respective terms.
4. Vizzy shall use commercially reasonable endeavours to make the Vizzy Services available 24 hours a day, seven days a week, except for:
  1. planned maintenance carried out during the maintenance window of 6.00pm to 9.00am UK time; and
  2. unscheduled maintenance performed outside Normal Business Hours, provided that Vizzy has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
5. Vizzy will, as part of the Vizzy Services, provide the Customer with reasonable customer support services during Normal Business Hours. The Customer may have the opportunity to purchase enhanced support services separately at Vizzy’s then current rates.
Data protection
1. For the purposes of this clause 5, “data controller”, “data processor”, “data subject”, “personal data”, “process”, “processing” and “appropriate technical and organisational measures” shall be interpreted in accordance with applicable Data Protection Laws.
2. Vizzy and Customer each acknowledge that, for the purposes of Data Protection Laws:
  1. in respect of User Data, Vizzy and Customer each act as independent data controllers of personal data comprised in User Data; and
  2. in respect of Customer Data, Customer is the data controller and Vizzy is the data processor.
3. The parties agree that all personal data comprised in User Data and Customer Data shall be processed in accordance with the Data Protection Laws and the provisions of the Data Processing Addendum.
Third party providers
The Customer acknowledges that the Vizzy Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Vizzy makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Vizzy. Vizzy recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Vizzy does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Vizzy Services.
Vizzy's obligations
1. Vizzy undertakes that the Vizzy Services will be performed in all material respects in accordance with the Documentation and/or Order Form(s) and with reasonable skill and care.
2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Vizzy Services contrary to Vizzy’s instructions, or modification or alteration of the Vizzy Services by any party other than Vizzy or Vizzy’s duly authorised contractors or agents. If the Vizzy Services do not conform with the foregoing undertaking, Vizzy will, at its expense, use its reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.
3. Vizzy:
  1. does not warrant that:
    1. the Customer’s use of the Vizzy Services will be uninterrupted or error-free;
    2. that the Vizzy Services, Documentation and/or the information obtained by the Customer through the Vizzy Services will meet the Customer’s requirements; or
    3. the Vizzy Platform or the Vizzy Services will be free from Vulnerabilities or Viruses; and
  2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Vizzy Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4. The Vizzy Customer Agreement shall not prevent Vizzy from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Vizzy Customer Agreement.
5. Vizzy warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Vizzy Customer Agreement.
6. Vizzy shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy, as such document may be amended by Vizzy in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Vizzy shall be for Vizzy to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Vizzy in accordance with the archiving procedure described in its Back-Up Policy. Vizzy shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Vizzy to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
Customer's obligations
1. The Customer shall:
  1. provide Vizzy with:
    1. all necessary co-operation in relation to this Vizzy Customer Agreement; and
    2. all necessary access to such information as may be required by Vizzy;
      in order to provide the Vizzy Services, including but not limited to Customer Data, security access information and configuration services;
  2. comply with all applicable laws and regulations with respect to its activities under this Vizzy Customer Agreement;
  3. carry out its responsibilities in a timely and efficient manner. In the event of any delays by the Customer, Vizzy may adjust any agreed timetable or delivery schedule as reasonably necessary;
  4. procure that the Authorised Users use the Vizzy Services and the Documentation in accordance with the Vizzy Customer Agreement and any other guidelines or policies provided by Vizzy from time to time, and shall be directly liable for any Authorised User's breach of this Vizzy Customer Agreement;
  5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Vizzy, its contractors and agents to perform their obligations under this Vizzy Customer Agreement; and
  6. ensure that its network and systems comply with any relevant specifications provided by Vizzy from time to time.
2. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. Customer shall and shall procure that its Authorised Users remove any or all Customer Data or User Data from the Vizzy Service promptly:
  1. where any such Customer Data or User Data is, or could reasonable be deemed, in breach of the Vizzy Customer Agreement; and
  2. promptly, upon Vizzy’s reasonable request.
3. Customer grants and, to the extent required, shall procure that its Authorised Users grant to Vizzy a non-exclusive, royalty-free, perpetual, worldwide license to:
  1. host, use, copy, store, collect, process, transmit, retain, publish and display the Customer Data to the extent permitted in the Vizzy Customer Agreement or as otherwise necessary to enable Vizzy to provide the Vizzy Services, and to enable Vizzy to perform its obligations in the Vizzy Customer Agreement and under any third party license, or otherwise required by law regulation or order; and
  2. use the Customer Data on an anonymous basis such that Vizzy may aggregate such anonymised Customer with the anonymised data of other Customers and Authorised Users of its Vizzy Services. Ownership of such anonymised and aggregated data and all Intellectual Property Rights in that data will vest in Vizzy upon its creation.
4. If Customer or its Authorised Users elect to provide Vizzy with any suggestions, comments, improvements, ideas or other feedback or materials related to the Vizzy Services, Customer hereby assigns, and as applicable shall procure that its Authorised Users shall assign, and shall if requested in the future assign, all right, title and interest in and to such feedback to Vizzy, without any compensation or other duty to account to the Customer or its Authorised Users (as applicable) and shall automatically waive and procure the waiver of any moral rights in such feedback. Customer shall procure that its Authorised Users will promptly take such actions as Vizzy may reasonably request from time to time (including execution of affidavits and other documents) to effect, perfect or confirm Vizzy’s ownership rights.
5. Where a Customer appoints Admin Users, the Customer warrants and represents that each Admin User has the authority to act on behalf of the Customer.
6. Customer warrants, represents and undertakes (on its own behalf, and on behalf of its Authorised Users) that: (i) Customer has the right, power and capacity to agree to the Vizzy Customer Agreement and (where applicable) to assign, and/or grant the rights as set out in the Vizzy Customer Agreement (including in respect of the Customer Data and User Data); (ii) the Customer Data and User Data will not infringe the rights (including Intellectual Property Rights) of any third party, and that Customer shall obtain and grant any license, waivers or permissions as needed to give effect to any rights granted to Vizzy; and (iii) Customer and the Customer Data and User Data shall comply with all applicable laws.
7. Vizzy reserves the right to suspend or restrict access to the Vizzy Services if: (i) Vizzy reasonably believe that a Customer, or its Authorised Users, are in breach of the Vizzy Customer Agreement; or (ii) Vizzy suspects or detects any Viruses, malware, Trojan horses, time bombs, or other similar harmful software connected to a Customer or its Authorised Users. Vizzy shall not be liable to any Customer or to any third party for any such suspension.
Charges and payment
1. The Customer shall pay the Fees to Vizzy in accordance with the Order Form. Save as required by law, all payments to be made by Customer to Vizzy under the Vizzy Customer Agreement will be made in full and without any set-off, deduction or withholding, including, without limitation, on account of any counterclaim.
2. The Customer shall on the Effective Date provide to Vizzy valid, up-to-date and complete credit card details or approved purchase order information acceptable to Vizzy and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
  1. its credit card details to Vizzy, the Customer hereby authorises Vizzy to bill such credit card: (i) on the Effective Date for the Fees payable in respect of the Initial Term; and (ii) subject to clause 14.1, on each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period;
  2. (b) its approved purchase order information to Vizzy, Vizzy shall invoice the Customer: (i) on the Effective Date for the Fees payable in respect of the Initial Term; and (ii) subject to clause 14.1, at least thirty (30) days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period,
  3. and the Customer shall pay each invoice within thirty (30) days after the date of such invoice.
3. If Vizzy has not received payment in accordance with this clause 9, then without prejudice to any other rights and remedies of Vizzy:
  1. Vizzy may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Vizzy Services and Vizzy shall be under no obligation to provide any or all of the Vizzy Services while the Fees concerned remain unpaid; and
  2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Barclays Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
4. All amounts and fees stated or referred to in this Vizzy Customer Agreement:
  1. shall be payable in the currency set out in the Order Form;
  2. are, except as otherwise expressly set out, non-cancellable and non-refundable;
  3. are exclusive of value added tax, which shall be added to Vizzy's invoice(s) at the appropriate rate.
5. If, at any time whilst using the Vizzy Services, the Customer exceeds the amount of storage space specified in the Order Form, Vizzy shall charge the Customer, and the Customer shall pay, Vizzy any applicable Excess Data Storage Fees.
6. Vizzy shall be entitled to increase all or any part of the Fees at the start of each Renewal Period upon no less than sixty (60) days' prior notice to the Customer.
Proprietary rights
1. The Customer acknowledges and agrees that Vizzy and/or its licensors own all Intellectual Property Rights in the Vizzy Services and the Documentation. Except as expressly stated herein, this Vizzy Customer Agreement does not grant the Customer any rights to any of Vizzy’s Intellectual Property Rights, or any other rights or licences in respect of the Vizzy Services or the Documentation.
2. Vizzy confirms that it has all the rights in relation to the Vizzy Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Vizzy Customer Agreement.
Confidentiality
1. Vizzy and Customer each undertake to maintain the confidentiality of the other’s Confidential Information and to use no less adequate security measures with respect to the other party’s Confidential Information than it uses in respect of its own. Customer shall procure that its Authorised Users comply with the provisions of this clause 11.
2. No party shall make, or permit any person to make, any public announcement concerning the Vizzy Customer Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. Notwithstanding any other provisions in this clause 11, Vizzy will be entitled to, and in each case without first obtaining Customer’s prior written consent, reference the Customer and its use of the Vizzy Services and to use Customer’s name and brand insignia in any form of media, for sales, marketing and other promotional purposes, in particular as a commercial reference in Vizzy’s commercial documents (including but not limited to in case studies and articles).
3. Except as expressly stated herein, no party makes any express or implied warranty or representation concerning its Confidential Information.
4. The above provisions of this clause 11 shall continue to apply after termination or expiry of the Vizzy Customer Agreement.
Indemnity
1. The Customer shall defend, indemnify and hold harmless Vizzy against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Vizzy Services and/or Documentation, provided that:
  1. the Customer is given prompt notice of any such claim;
  2. Vizzy provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
  3. the Customer is given sole authority to defend or settle the claim.
2. Vizzy shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Vizzy Services or Documentation in accordance with the Vizzy Customer Agreement infringes any United Kingdom Intellectual Property Rights effective as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
  1. Vizzy is given prompt notice of any such claim;
  2. the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Vizzy in the defence and settlement of such claim, at Vizzy's expense; and
  3. Vizzy is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Vizzy may procure the right for the Customer to continue using the Vizzy Services, replace or modify the Vizzy Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Vizzy Customer Agreement on two (2) Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
4. In no event shall Vizzy, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  1. a modification of the Vizzy Services or Documentation by anyone other than Vizzy; or
  2. the Customer's use of the Vizzy Services or Documentation in a manner contrary to the instructions given to the Customer by Vizzy; or
  3. the Customer's use of the Vizzy Services or Documentation after notice of the alleged or actual infringement from Vizzy or any appropriate authority.
5. The foregoing states the Customer's sole and exclusive rights and remedies, and Vizzy's (including Vizzy's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any Intellectual Property Right.
Limitation of liability
1. Except as expressly and specifically provided in the Vizzy Customer Agreement:
  1. the Customer assumes sole liability and responsibility for the Customer Data and for results obtained from the use of the Vizzy Services and the Documentation by the Customer, and for conclusions drawn from such use. Vizzy shall have no liability for any damage caused by errors or omissions in any Customer Data, User Data, information, instructions or scripts, or any actions taken by Vizzy at the Customer's or its Authorised Users' direction;
  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Vizzy Customer Agreement; and
  3. the Vizzy Services and the Documentation are provided to the Customer on an “as is“ basis.
2. Nothing in this Vizzy Customer Agreement excludes the liability of Vizzy:
  1. for death or personal injury caused by Vizzy's negligence; or
  2. for fraud or fraudulent misrepresentation.
3. Subject to clause 13.1 and clause 13.2:
  1. Vizzy shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Vizzy Customer Agreement; and
  2. Vizzy's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Vizzy Customer Agreement shall be limited to the total Fees paid during the twelve (12) months immediately preceding the date on which the claim arose.
Term and termination
1. The Vizzy Customer Agreement shall, unless otherwise terminated as provided in this clause 14, commence from and including the Effective Date and shall continue for the Initial Term and, thereafter, this Vizzy Customer Agreement shall be automatically renewed for successive periods of equal duration to the Initial Term (each a Renewal Period), unless:
  1. either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case this Vizzy Customer Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
  2. otherwise terminated in accordance with the provisions of this Vizzy Customer Agreement.
2. Without affecting any other right or remedy available to it, either party may terminate this Vizzy Customer Agreement with immediate effect by giving written notice to the other party if such other party:
  1. fails to cure any material breach of the Vizzy Customer Agreement within fourteen (14) calendar days after receipt of written notice of such breach;
  2. becomes the subject of a petition in bankruptcy, or other proceeding, petition, notice, resolution, or order relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or
  3. fails to pay any amounts due under the Vizzy Customer Agreement and remains in default not less than fourteen (14) days after being notified in writing to make such payment.
3. Vizzy may terminate this Vizzy Customer Agreement at any time without cause and without notice. In cases of immediate termination without cause by Vizzy, Vizzy will refund you the paid but unused portion of the Fees for the remainder of the Initial Term or Renewal Period as the case may be.
4. On termination or expiration of the Vizzy Customer Agreement for any reason:
  1. all licences granted under this Vizzy Customer Agreement shall immediately terminate and the Customer and any applicable Authorised Users shall immediately cease all use of the Vizzy Services and/or the Documentation including any Confidential Information, and shall where requested by Vizzy (and to the extent permitted by applicable laws) return or destroy any Confidential Information;
  2. Vizzy may destroy or otherwise dispose of any of the Customer Data in its possession unless Vizzy receives, no later than ten (10) days after the effective date of the termination of the Vizzy Customer Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Vizzy shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Vizzy in returning or disposing of Customer Data;
  3. all Fees incurred prior to the termination date shall be paid by Customer in accordance with the Vizzy Customer Agreement;
  4. 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 Vizzy Customer Agreement which existed at or before the date of termination shall not be affected or prejudiced.
Force Majeure
Vizzy shall have no liability to the Customer nor shall it be in breach of the Vizzy Customer Agreement if it is prevented from or delayed in performing its obligations under the Vizzy Customer Agreement or from carrying on its business due to a Force Majeure Event. In such circumstances, Vizzy shall be entitled to a reasonable extension of time for performance of its obligations and Customer shall continue to pay the Fees in respect of the Vizzy Services which Vizzy continues to supply notwithstanding the occurrence of a Force Majeure Event. If the period of delay or non-performance continues for one (1) month, the party not affected may terminate the applicable Plan by giving fifteen (15) calendar days’ written notice to the affected party.
Notices
1. Any notice or other communication given under or in connection with the Vizzy Customer Agreement will be in writing, in the English language (or any other language expressly agreed between the parties), marked for the attention of the specified representative of the party to be given the notice and must be:
  1. sent to that party’s address by pre-paid mail delivery service providing guaranteed next Business Day delivery and proof of delivery; or
  2. sent by e-mail to that party’s e-mail address as shared by that party.
2. Any notice given in accordance with this clause 16 will be deemed to have been served:
  1. if given as set out in clause 16.1(a) at 9.00am on the second Business Day after the date of posting; and
  2. if given as set out in clause 16.1(b) at the time of sending the e-mail.
Genaral
1. In performing its obligations and exercising its rights under the Vizzy Customer Agreement, each party shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
2. No failure or delay by a party to exercise any right or remedy provided under the Vizzy Customer Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any right or remedy.
3. If any provision or part-provision of the Vizzy Customer Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Vizzy Customer Agreement. If any provision or part-provision of the Vizzy Customer Agreement is deemed deleted the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
4. The Vizzy Customer Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and undertakings between them, whether written or oral, relating to its subject matter. Except for express provisions in the Vizzy Customer Agreement (and any express provisions contained in any documentation which is expressly incorporated), all other warranties, conditions, terms, representations, statements, undertakings and obligations, whether express or implied by statute, common law, custom, usage or otherwise are hereby excluded to the maximum extent permitted by law.
5. Each party agrees that in entering into the Vizzy Customer Agreement, it does not rely on (and shall have no remedy in respect of) any statement, representation (including any misrepresentation), warranty or undertaking (whether negligently or innocently made) of any person (whether a party to the Vizzy Customer Agreement or not and, in each case, whether contractual or non-contractual) which is not expressly set out in the Vizzy Customer Agreement.
6. The Customer shall not, without the prior written consent of Vizzy, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Vizzy Customer Agreement. Vizzy 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 Vizzy Customer Agreement.
7. Nothing in the Vizzy Customer Agreement and no action taken by the parties in connection with it will create a partnership or joint venture or relationship of employer and employee between the parties or save as expressly provided otherwise in the Vizzy Customer Agreement, give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
8. The Vizzy Customer Agreement does not confer any rights on any person or party (other than the parties to the Vizzy Customer Agreement and, where applicable, their successors and permits assignees) pursuant to the Contracts (Rights of Third Parties) Act 1999.
9. Except as expressly provided in this Vizzy Customer Agreement, the rights and remedies provided under the Vizzy Customer Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
10. The Vizzy Customer Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including any non-contractual disputes or claims) shall be governed and construed in accordance with the laws of England and Wales. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Vizzy Customer Agreement or its subject matter or formation (including any non-contractual disputes or claims). Notwithstanding the foregoing, Vizzy shall, in addition to any other remedies available, be entitled to seek injunctive or other appropriate equitable relief in any court of competent jurisdiction for any actual or threatened misuse of its Intellectual Property Rights or Confidential Information.