GENERAL TERMS & CONDITIONS February 2021
1 DEFINITIONS
The following terms will have the meaning as set forth, either in the singular or in the plural.
| Agreement | the agreement with respect to Hardware, Software, Installation, Support, Maintenance, Services and hereinafter between Visually Connected Worldwide (referred to as VCW) and the Customer, including these Terms and Conditions, and any Data Protection Addendum, as required; |
|
Cloud Services and or Smart Services |
the services, support/maintenance provided and hosted by VCW; |
| Customer | the party with whom VCW has entered into an Agreement and who will be receiving the Services and/or Hardware herein; |
| Equipment | Equipment long term rented under the Rental Services; |
| GDPR | Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 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 (General Data Protection Regulation), together with the codes of practice, codes of conduct, regulatory guidance and standard clauses and other related legislation resulting from the GDPR as updated from time to time; |
| Intellectual Property Rights | Intellectual Property Rights shall mean patents, utility models, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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; |
| UK Data Protection Legislation |
All applicable data protection and privacy legislation in force from time to time in the UK including the GDPR, the Data Protection Act 2018, and any other relevant, applicable legislation as amended; |
| Hardware and software | The hardware (including the software, documentation and other ancillary materials) provided by VCW; |
| Maintenance and Support Services | The maintenance and support service with respect to the Hardware or software; |
|
Professional Services |
The installation of Hardware or other professional services provided by VCW; |
| Rental Services | The long-term rental of hardware and software offered by VCW; |
| Services | All services and activities offered by VCW, including but not limited to the Cloud Services, Smart Services, Maintenance and Support Services, Professional Services and Rental Services; |
| Smart Services | The smart services offered by VCW; |
| Terms and Conditions | These general terms and conditions, irrespective of the form in which these general terms and conditions are presented to the Customer. |
2 GENERAL CONDITIONS
2.1 The Terms and Conditions apply to and form part of all offers, proposals, agreements and other legal acts, either made orally, in writing, electronic or in any other form, concerning delivery of Services and/or Hardware by VCW. The Terms and Conditions shall also apply to all future transactions between the parties to the contract without requiring any reference there to again
2.2 Deviations from the Terms and Conditions shall only apply if and to the extent that they have been explicitly agreed upon in writing between VCW and Customer.
2.3 VCW explicitly rejects any applicability of any general (purchase) conditions used by Customer.
2.4 Quotations and prices shall not be binding on VCW, shall be without any obligation and shall be valid only as an invitation to Customer to place an order via their confirmation or acceptance in writing, unless explicitly otherwise stated in writing.
2.5 Customer warrants the accuracy and completeness of the measurements, requirements, performance specifications and other data on which VCW bases its offer and which have been stated by or on behalf of the Customer to VCW.
3 SERVICES
3.1 VCW will provide the Services to Customer with due care and in accordance with the stipulations set forth in the Agreement (including these Terms and Conditions).
3.2 VCW is entitled at its sole discretion to make such alterations to the Services as it sees fit as long as the service is in essence still in compliance with the Services as agreed;
3.3 In the event that VCW, at Customer’s request, has delivered additional services that are not part of the Services agreed upon in the Agreement, Customer will pay for these services in accordance with VCW’s standard tariffs. VCW’s shall not be under obligation to meet a request for additional service and may require the conclusion of a separate written agreement. Customer accepts that an alteration or expansion of the Services may affect the agreed or expected time of completion of the Services. Any alteration or expansion needs to be mutually agreed between Customer and VCW at agreed rates.
4 DELIVERY OF HARDWARE, SOFTWARE AND/OR SERVICES AND RETENTION OF TITLE
4.1 All terms of delivery of Services and Hardware only serve as guidelines. VCW will use its best efforts to observe the agreed delivery periods and/or other periods; however failure to meet these (delivery) periods shall not be considered a breach of this agreement, unless explicitly stated otherwise. Parties shall consult with each other as soon as possible in the event of an impending late delivery. VCW shall not be in default until after Customer has served VCW with a written notice of non-fulfilment that afforded a reasonable time for rectification and after VCW has failed to fulfil within such reasonable time.
4.2 Any risk of loss or damage of Hardware or of other facilities, software, documentation or other materials delivered in connection with the Services, will transfer to the Customer at the time of delivery.
4.3 In the event Customer purchases Hardware from VCW then all Hardware delivered to the Customer shall remain VCW’s property until all amounts owed by the Customer for the Hardware have been paid fully to VCW. These amounts include the amounts with respect to all the work to be performed with respect of the Hardware (if agreed upon) and all other amounts which the Customer owes VCW due to a breach of its payment obligation. Until obtaining ownership Customer shall refrain from selling, leasing or pledging the Hardware and shall not rent or loan them out or in any other way make them available to third parties under any title whatsoever.
4.4 Errors and omissions excepted in relation to the specification provided for the Hardware and Services.
4.5 All work in relation to the delivery of the Services and Hardware needs to be carried out in a continuous period, in a safe and secure environment that is clean, dust-free and ready for installation on the first day of the communicated program schedule. VCW may require assistance with a number of tasks required as part of the installation process. These will require to be completed in advance of the first day of program schedule and include, amongst other things;
(i) Power, power cable sockets, power and data cabling, cabling containment;
(ii) Network connections, sockets and switches;
(iii) Floor boxes and/or grommet holes as required;
(iv) Details of the client supplied IP connectivity and related addresses are to be supplied to VCW at least one week prior to installation.
(v) The disposal of any packaging or other waste is to be the responsibility of the Customer.
5 PRICE AND PAYMENT
5.1 Customer agrees to pay fees as consideration for the Services and/or Hardware provided by VCW.
5.2 All prices and tariffs are stated in GBP, unless otherwise agreed in writing, and are exclusive of value added tax (VAT) and other government levies. Travel time, costs of travel, costs of transport, insurance, rigging and hoisting, leasing temporary facilities and subsistence expenses, extra hours and other costs attached to the Services are not included in the prices and rates and may be billed separately by VCW.
5.3 VCW is entitled to annually increase the prices and tariffs in case any cost price increasing circumstances occur that affect the cost price of the Services and/or the Hardware.
5.4 Unless otherwise agreed in writing, delivery of Hardware and Services will be invoiced at the following stages:
(i) Projects over £25,000 will be invoiced 50% on order, 30% on delivery and 20% on completion;
(ii) Projects of £5,000 to £25,000 will be invoiced 50% on order and 50% on completion;
(iii) Projects under £5,000 will be invoiced on completion;
(iv) Hardware only supply will be invoiced 100% on order;
(v) New VCW customers will be invoiced on immediate payment terms until/unless a credit account is agreed.
(vi) Maintenance and Support Services agreements will be invoiced on a monthly, quarterly or ayearly basis, in advance. Where extra Maintenance and Support Services are requested by Customer, which are not included in the relevant Maintenance and Support Service agreement, these shall be chargeable at rates agreed from time to time.
All invoices will be paid by Customer in accordance with the conditions of payment stated on the invoice. In absence of specific conditions, Customer will pay within 30 (thirty) days from the invoice date, without any set-off or suspension on any account whatsoever, except where it has been decided by arbitration award or judgment of a Court, that Customer has a counter-claim capable of being set off or a ground for suspension.
5.5 Without prejudice to any other right or remedy VCW reserves the right to suspend delivery or to terminate the Agreement if there is any outstanding liability owing to it by the Customer, or if in its opinion the Customer will not be able to meet any future or existing commitment to it.
5.6 Objections to invoiced amounts shall be communicated to VCW in writing before the due date, in the absence of which Parties shall accept the accuracy of the invoiced amounts after expiry of the due date. VCW shall determine the amounts owed by Customer, unless Customer can demonstrate that VCW’s records are incorrect.
5.7 If Customer fails to pay an invoice within the term of payment, Customer will automatically be in default, without a warning or notice of default being required. From such moment until the day of full payment, interest shall accrue on the outstanding amount against a rate of English statutory interest, which is four percent (4%) plus the Bank of England base rate.
5.8 If Customer continues to be in default in its obligation to pay the outstanding invoice with accrued interest, VCW can place the matter in the hands of a lawyer or debt-collector agency. All costs incurred by VCW in respect of such collection will be borne by Customer.
5.9 Notwithstanding article 5.4 and 5.7, 13.2 and 13.3, if the Customer continues to be in default in its obligation to pay the outstanding invoice, with accrued interest, for a period of more than 60 (sixty) days, all (recurring and nonrecurring) amounts due for the Services and Hardware agreed upon for the remaining term of the Agreement, will immediately become due and payable.
5.10 All amounts paid by the Customer will first offset any extrajudicial cost, secondly any accrued interest and thirdly the original amount of the invoice, regardless of any payment description or any notice by that Customer.
6 SECURITY, DEPOSIT, BANK GUARANTEE
6.1 VCW is entitled to require security from Customer in the form of a bank guarantee, deposit or some other kind of security if in VCW’s opinion doubt exists about Customer’s ability to fulfil its payment obligation.
6.2 At such time as the need for security no longer exists, VCW shall notify Customer that the security or bank guarantee or other form of security may be discontinued or, as the case may be, shall refund the deposit. No interest shall be payable over the deposit.
7 COOPERATION OF THE CUSTOMER
7.1 The Customer shall always furnish VCW in a timely manner with all data, information, hardware, facilities, materials and cooperation that are useful and necessary to execute the Agreement properly and provide full cooperation. Labour cancellation fees may apply if these conditions are not met at the agreed date and time. If the Customer utilises its own employees in cooperating in the execution of the Agreement, these employees shall possess the necessary know-how, experience, training and abilities. Customer guarantees that the provided information will be correct and complete.
7.2 Customer represents and warrants to VCW that the hardware, including servers, software, telecommunication facilities (including internet) connections, or other facilities used in connection with the Services and/or Hardware provided by VCW meet all required technical specifications to enable the correct functioning of the Hardware and/or Services. Customer shall bear the risk of selecting, using and applying in its organisation the hardware, software, (internet) connections and other facilities necessary for the proper use of the Hardware and Services and shall also be responsible for the monitoring and security procedures and proper system management, unless otherwise agreed upon in writing. VCW is not liable for any damage or expenses due to transmission errors, malfunctions or the non-availability of these facilities, unless the Customer proves that such damage or expenses resulted from intentional acts or omissions or gross negligence on the part of VCW.
7.4 If the Customer does not provide VCW with the data, equipment, software or other cooperation necessary to execute the Agreement, or does not provide this in a timely manner or in accordance with the agreements made, or if the Customer otherwise does not fulfil its obligations, VCW shall be entitled to suspend execution of the Agreement in whole or in part, and it shall be entitled to charge the ensuing expenses in accordance with its usual rates, all of this without prejudice to VCW’s right to exercise any other legal right.
7.5 If and insofar employees of VCW perform work on the premises of Customer, Customer shall provide appropriate working conditions, access to all necessary facilities including but not limited to computer and telecommunication facilities and qualified personnel as may be reasonably requested by VCW. All facilities shall comply with all applicable statutory and other requirements and provisions concerning working conditions. The Customer shall indemnify VCW against claims by third parties, including VCW’s employees, who, in executing the Agreement, suffer injury which is the result of acts or omissions by the Customer or of unsafe situations in its organisation.
7.6 If any of the provisions of this article 7 are not met by the Customer and therefore the delivery of Services and/or Hardware is delayed and extra time and/or extra work needs to be invested by VCW, VCW has the right to charge and Customer acknowledges it is obliged to pay all fees due to this extra time and/or extra work.
8 INTELLECTUAL PROPERTY RIGHTS AND LICENSE
8.1 All Intellectual Property Rights regarding the Services and Hardware (including but not limited to the software, documentation, facilities or other materials that is used therefore) are owned and retained by VCW or its suppliers. VCW shall retain ownership of any suggestions, ideas, recommendations, feedback or other information provided by Customer or any other party related to the Services and Hardware. Neither delivery of the Services or Hardware nor the Agreement will imply any transfer or assignment of Intellectual Property Rights.
8.2 Customer shall receive a limited, non-exclusive and non-transferable license for the use of the Services for the term of this agreement and to receive the Services. Customer commits itself to adhere strictly to any conditions laid down in the Agreement or imposed in any other way.
8.3 In the event that the Services or Hardware contain any Intellectual Property Rights that need to be used by Customer for the proper performance of the Services or Hardware under this Agreement, VCW and its licensors (as applicable) shall retain ownership of any such Intellectual Property Rights (“Supplier Background IPR”) and, VCW grants to Customer a non-exclusive, non-transferable, revocable license to use such Supplier Background IPR for internal purposes during the term of the Agreement. Such license is solely granted for the use in connection with the Services or the Hardware and under the condition that the Customer fully complies with the Terms and Conditions and the stipulations in the Agreement. In case the Supplier Background IPR includes software, Customer is not entitled to:
(i) assign, sublicense, lease or otherwise make the software available to third parties;
(ii) decodify, decompile, modify, adapt, create derivative works based on the software or apply techniques of reverse engineering or any other techniques aimed to access the source code of the software, except where the rights to do so are mandatory by law and VCW has refused to satisfy any conditions to such rights;
(iii) incorporate or let others incorporate the software, in part or in whole, into another program, or otherwise exploit the software other than for its internal business purposes;
(iv) make a copy of the software, without the prior written consent of VCW, which consent will not be withheld in case of a back-up copy, unless VCW decides to provide such back-up copy itself;
(v) delete or alter any trademark, trade name, logo, copyright notice, notice of reservation of rights, or limitation or exclusion of liability included in any part of the software and/or in the documentation associated with it.
8.4 Any Intellectual Property Rights specifically developed or created for the Customer, not being Supplier Background IPR, shall vest and will be transferred to the Customer by VCW.
8.5 VCW shall be allowed to take technical measures to protect the software or with a view to agreed restrictions in the duration of the right to use the software. Customer shall not be allowed to remove or evade such a technical measure.
8.6 Customer is not entitled to receive upgrades and updates of the software, unless explicitly otherwise agreed upon in the Agreement.
9 CONFIDENTIAL INFORMATION AND PERSONAL DATA
9.1 During the Agreement and after its expiration or termination for whatever reason, Customer shall keep confidential all information it receives from VCW, including without limitation, information in relation to VCW’s affairs or business or method of carrying on business and all customer information and shall use such information only to the extent necessary to perform its obligations under this Agreement or as may be required by law.
9.2 The requirements of Article 9.1 shall not apply to the extent that such information is or becomes public knowledge through no fault of the Customer or was already known by the Customer prior to its disclosure by the Customer or is otherwise authorised by VCW for disclosure or required to be disclosed by law.
9.3 If and insofar VCW receives personal data that falls within the scope of the GDPR, the parties shall abide by the obligations set forth in the Data Protection Addendum, attached hereto.
10 AUDIT
10.1 During the term of the Agreement and for a period of one year after its termination, VCW may, at any time upon reasonable advance notice, conduct an audit at Customer’s premises to ascertain whether Customer’s use of the Service is in compliance with the provisions of the Agreement. VCW shall ensure that the audit will be conducted during normal business hours without causing unreasonable disruption of Customer’s business operation. Customer shall assist VCW in the conduct of such audit and shall grant VCW access to its premises and computer equipment in relation to the Hardware and/or Services delivered. In the event that such audit reveals any use of the Services by Customer other than in full compliance with the Agreement, Customer shall reimburse VCW for all reasonable costs and expenses related to such audit in addition to any other liabilities Customer may incur as a result of such non-compliance.
11 LIMITATION OF LIABILITY
11.1 This agreement sets for the full extent of VCW’s obligations and liabilities in respect of the Services and/or Hardware. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for particular purpose or any kind whatsoever that are binding on VCW except as specifically stated in this agreement. Any condition, warranty or other term concerning the Services and/or Hardware which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.
- 2 The total liability of VCW to Customer at any given time, for any reason whatsoever, is limited to the compensation of the following damages and to the maximum amounts stated from case to case:
(i) direct damages resulting from a material breach of its obligations under the agreement will be limited to the fee that is or must be paid by Customer in the year that the damage occurs, up to a maximum of £ 10,000, per event, whereby a series of connected incidents or events will count as one incident or event. Direct damages in this respect exclusively mean:
all reasonable costs incurred by Customer in order to have VCW’s performances meet its obligations under the Agreement;
all reasonable costs incurred by Customer in order to prevent or limit any direct damages as meant in this article.
all reasonable costs incurred by Customer in order to establish the nature and scope of the direct damages as meant in this article.
(ii) damage to property, reasonable costs of repair or replacement, up to a maximum amount of £ 10.000,- per event, whereby a series of connected incidents or events will count as one incident or event.
11.2 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence; fraud or fraudulent misrepresentation; or breach of the terms implied by Section 8 of the Supply of Goods (Implied Terms) Act 1973.
11.3 Any and all liability for indirect damages, including but not limited to consequential damages, loss of profit, loss of turnover, damage through stagnation of operations, loss of anticipated savings, loss of use or corruption of software, data or information, de-staffing, penalties and charges owed to third parties and impaired goodwill or damage of reputation, is excluded.
11.4 Establishment of any right to compensation shall in each instance be conditional upon Customer reporting such damage to VCW in writing within three months of its occurrence.
12 FORCE MAJEURE
12.1 There is no attributable failure by VCW if there is an event of force majeure. Force majeure includes but is not limited to embargoes, governmental restrictions, strikes, lockout, work stoppages or other labour difficulties, acts of God, riots, insurrections, wars or other military actions, government action, acts of terrorism, civil disorders, fires, floods, vandalism, sabotage or pandemics.
12.2 If the event of force majeure continues for a period of 60 (sixty) consecutive days, then Parties are authorised to dissolve the Agreement in writing without judicial intervention being required. Such dissolution does not oblige VCW to pay compensation for damage and/or loss. VCW is entitled to receive payment from the Customer for the delivery of Hardware and/or Services already made prior to the force majeure situation.
13 TERMINATION AND SUSPENSION
13.1 VCW is entitled to suspend, terminate or rescind the Agreement, by notifying Customer (and without any judicial intervention being required and without becoming liable for damages) if Customer has failed to perform an obligation under the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within 7 (seven) days (or another reasonable term stated by VCW) after being notified in writing (including e-mail) of such breach. The suspension, termination or rescission does not release the Customer from any payment obligation as inserted in article 5, unless VCW is in default with regard to such Hardware or Services.
13.2 Both parties are entitled to suspend, terminate or rescind the Agreement with immediate effect by notifying the other party (and without any judicial intervention being required and without becoming liable for damages), if either party:
(i) suspends, or threatens to suspend payments of its debts or is unable to pay debts as they fall due or is deemed unable to pay its debts under the law;
(ii) suspends, ceases, or threatens to suspend or cease carrying on all or a substantial part of its business;
(iii) commences negotiations with all or any class of its creditors with a view to make a general assignment for the benefit of its creditors;
(iv) suffers or permits the appointment of a receiver or a manager for its business assets;
(v) files a petition or gives notice for or in connection with the winding up of their business.
13.3 VCW is entitled to suspend, terminate or rescind the Agreement with immediate effect by notifying the other party (and without any judicial intervention being required and without becoming liable for damages), if Customer undergoes a substantial change of management or control (within the meaning of section 1124 of the Corporation Tax Act 2010) reasonably deemed by the other party to be incompatible with its legitimate interests.
14 FINAL PROVISIONS
14.1 The Agreement constitutes the full agreement between the parties with respect to the utilisation of the Services and the Hardware and it replaces any prior agreements concerning the subject hereof.
14.2 The Agreement is personal and as such Customer is not entitled to assign its rights and obligations under it, except with the prior written permission of VCW. VCW shall be entitled to assign or otherwise transfer its rights and obligations under the Agreement without requiring the consent of Customer.
14.3 If and to the extent that any provision contained in these Terms and Conditions should prove not valid for whatever reason, the other provisions of these Terms and Conditions shall remain in full force and effect. VCW and Customer shall negotiate a new provision that shall approximate the contents and the scope of the original provision as closely as possible.
14.4 During the term of the Agreement and one year thereafter, Customer shall not engage or otherwise employ, directly or indirectly, members of the staff of VCW or contractors used by VCW in the performance of the Services or delivery of the Hardware, who are or were involved in executing the Agreement, unless the Customer has received prior written permission of VCW.
14.5 The Agreement is governed by the law of England and Wales.
14.6 Parties will first use their reasonable efforts to resolve any dispute that may arise out of the Agreement or any breach thereof. If a dispute cannot be settled amicably through ordinary negotiations within a timeframe acceptable to either party, either party may submit the dispute for resolution in accordance with article 14.7
14.7 All disputes that may arise under or in connection with the agreement shall be exclusively submitted to any competent court within England.
15 ADDITIONAL TERMS FOR CLOUD SERVICES AND / OR SMART SERVICES
The provisions set forth in these Terms shall apply if VCW delivers and sells Cloud Services and /or Smart Services to the Customer. These provisions apply in addition to the General Terms.
15.1 VCW will use its best effort to provide the Cloud Services and Smart Services in a professional and workmanlike manner and with minimum disruptions. However, VCW cannot guarantee that the Cloud Services and Smart Services will always function without disruptions, delay or other imperfections. Since the Cloud Services and Smart Services will be transmitted through Internet and a public (telecommunication) network, power outages, Internet or other disruption may occur, and users may experience some disruptions in the Cloud Services and Smart Services.
15.2 VCW may change the technical features of the Cloud Services and Smart Services in order to keep pace with the latest demands and technological developments, at its own discretion.
15.3 VCW will use its best effort to ensure the security and confidentiality of all communications on the Cloud Services and Smart Services, in accordance with the specifications agreed upon and taking into account the exceptions laid down by law (if relevant).
15.4 Only if expressly agreed upon in writing, VCW will install the Cloud Services, Smart Services and/or the Hardware or have it installed. Any requirement by VCW to install the Cloud Services, Smart Services and/or the Hardware does not include the requirement to install software or to convert any data. If VCW has undertaken to perform installation, the Customer shall provide a suitable installation site with all necessary facilities, such as cable work and telecommunications facilities, before delivery and installation of the Cloud Service, Smart Services and Hardware and follow all instructions of VCW necessary for the installation. To enable VCW to perform the necessary work, the Customer shall give VCW access to the installation site during VCW’s normal working days and hours from 8.00 a.m. to 6.00 p.m. in the relevant region.
16 RESTRICTIONS OF CUSTOMER
16.1 Customer is entitled to use the Cloud Services and Smart Services for internal purposes only and therefore, it may not resell, transfer or rent the Cloud Services and Smart Services, nor incorporate or let others incorporate the Cloud Services and Smart Services into another service or otherwise exploit these other than for its internal business purposes.
16.2 Customer may use the Cloud Services and Smart Services solely for lawful purposes and in accordance with the ‘fair use policy’ of VCW. In this respect Customer may not:
(i) use or distribute components designed to compromise system security and more specifically may not use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, damage or disassemble the Cloud Services and Smart Services, or to deliberately or recklessly disrupt Cloud Services and Smart Services;
16.3 Customer shall not have the right to make any changes to the Cloud Services and Smart Services (including changes to accompanying software or facilities provided in connection with the Cloud Services and Smart Services) or to relocate facilities provided in connection with the Cloud Services and Smart Services or damage them.
16.4 VCW reserves the right, without prejudice to any other provisions of the Agreement and/or these Terms and Conditions, to issue reasonable instructions concerning the use of any Hardware sold to Customer which utilises Cloud or Smart Services, the Cloud Services or Smart Services themselves (including the software and facilities provided in connection with the Cloud Services and Smart Services) as may be necessary in the interests of the safety, quality or security or for any other valid reason that VISUALLY CONNECTED WORLDWIDE reasonably deems appropriate.
17 ADDITIONAL TERMS FOR HARDWARE AND SOFTWARE
The provisions set forth in these Terms for Hardware and software shall apply if VCW delivers and sells Hardware to the Customer. These provisions apply in addition to the General Terms.
17.1 The price of the Hardware and software shall not include the costs of transport, insurance, installation, leasing temporary facilities and the like.
17.2 The Hardware and software will be delivered to the location specified in the Agreement. If no location has been agreed, delivery will take place by offering the Hardware and software at VCW’s premises and / or warehouse, so that Customer can collect it themselves. Customer is obliged to collect the Hardware and software immediately upon its arrival, failing which VCW shall be entitled to charge the costs of such delay, transport, return and / or storage related to this default to Customer.
17.3 Customer is not entitled to receive upgrades, updates and/or Professional Services with respect to the Hardware and software, unless it’s specifically agreed upon in writing.
17.4 Upon delivery, the Customer must immediately check the Hardware in question for any defects or damage. Any visible defects must be reported to VCW in writing within 3 (three) Working Days (a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business) after the delivery of the Hardware, with reference to the invoice number or, in the absence thereof, the number of the dispatch note or order confirmation. If this period has expired without written notice (complaint) regarding a defect in the Hardware, the Hardware shall be deemed to have been accepted by the Customer. In any case, the Hardware is deemed to be accepted if the Customer has taken the Hardware into use, has delivered it to third parties, or has commissioned it, unless a complaint has been lodged within the stipulated period of 3 (three) Working Days.
17.5 The warranty with regard to the Hardware delivered by VCW is limited to the warranty granted by the manufacturer of the Hardware or the supplier of the software (delivered in connection with the Hardware), both in terms of its substance and its duration. Therefore, only the warranty conditions and warranty period of such
manufacturer/supplier apply to the delivered Hardware, or software delivered in conjunction with said Hardware, replacing any deviating provisions in these Terms and Conditions. The Customer accepts the intended warranty conditions of the manufacturer/supplier. These warranty conditions are supplied along with the Hardware or, in the case of software, constitute part of the license terms. It follows from the foregoing that VCW only has a warranty obligation if and insofar as it (or the Customer directly) can claim a warranty obligation from the manufacturer or supplier. The processing of the defective Hardware will be carried out according to the procedure of the manufacturer or supplier and the instructions given by VCW.
17.6 Without prejudice to the provisions in the warranty conditions of the manufacturer, supplier or VCW, the warranty will at least lapse if:
(i) without the prior written permission of VCW, supplier or the manufacturer, repairs, modifications or extensions have been made to the Hardware or software by the Customer or by others;
(ii) changes, repairs or extensions have been made to the Hardware or software that VCW has indicated that this can lead to the lapse of the warranty;
(iii) in VCW’s opinion the Hardware has been used or maintained carelessly, incorrectly or inexpertly;
(iv) changes have been made to the warranty certificate or any seal of the Hardware has been broken;
(v) type numbers, serial numbers and/or warranty stickers are damaged, altered or removed;
(vi) any defects have arisen by not connecting or using the Hardware or software as prescribed and/or not connecting or installing (approved) other products to the Hardware or software;
(vii) defects have arisen due to deviating environmental conditions, insofar as such conditions have been stipulated or by other external causes such as fire or water damage.
17.7 The warranty period is not extended or renewed by carrying out the work performed, or replacement products supplied within the context of the warranty.
17.8 VCW is under no obligation to repair defects that have been reported after the expiry of the warranty period set by the manufacturer or supplier, unless Parties have agreed in the Agreement upon the delivery of Maintenance and Support Services, which includes such a duty to repair. Work and costs of repair that are delivered or made outside the scope of the warranty will be charged by VCW in accordance with its usual rates.
17.9 Only in the event of the warranty conditions of the manufacturer or the supplier in the relationship between VCW and the Customer for whatever reason being deemed to not be applicable or are declared inapplicable, the following applies with regard to the warranty:
(i) The warranty period for the Hardware is one year after the date of delivery of the Hardware and in the case of software, one year after delivery of the license code.
(ii) The warranty includes the free repair or replacement of (parts of) the Hardware in the event of defects in materials and/or workmanship of which the Customer proves that these have occurred within the stipulated warranty period.
(iii) If VCW replaces parts/Hardware to fulfil its warranty obligation, the replaced parts/Hardware will become VCW’s property, if VCW so desires.
(iv) Any costs that exceed the sole obligation of replacement as described, such as transport costs, travel and accommodation costs as well as costs of disassembly/assembly are payable by the Customer.
(v) The warranty expires in case of circumstances as mentioned in article 17.6.
18 ADDITIONAL TERMS FOR MAINTENANCE AND SUPPORT SERVICES – GENERAL
The provisions set forth in these Additional Terms for Maintenance and Support shall apply if VCW provides its Maintenance and Support Services. These provisions apply in addition to the General Terms.
18.1 VCW will provide the Maintenance and Support Services solely with respect to the Hardware and/or software specified in the Agreement. The Maintenance and Support Services may consist of (i) maintenance service, including the remedy of errors, (ii) the provision of maintenance releases or new versions of software and/or (ii) preventive maintenance services. Change requests do not fall under the scope of the Maintenance and Support Services.
18.2 VCW will use its best efforts to provide the Maintenance and Support Services in a professional and workmanlike manner. VCW shall provide the services on the basis of a best efforts obligation, unless and in so far it has explicitly undertaken in the Agreement to achieve a specific result and the result in question is sufficiently determined.
18.3 VCW may sub-contract any part of its obligations with respect to the Maintenance and Support Services to a third party, for example a local partner or a supplier, without the prior written consent of Customer.
18.4 The Maintenance and Support Services shall only be provided to the contact persons of Customer named in the Agreement. Maintenance and Support Services are dependent on the ability of the contact person to communicate and be available. Therefore, VCW may set forth certain requirements on the part of the contact person to ensure fulfilment of VCW’s obligations.
18.5 Customer will provide all cooperation required by VCW for the purpose of the Maintenance and Support Services, including the temporary suspension of use of the Cloud Services or the Hardware by Customer if VCW deems this to be necessary. If Customer fails to provide the requested cooperation, VCW may suspend or limit the Maintenance and Support Services. If the Maintenance and Support Services are provided on the basis of information to be provided by Customer, this information shall be prepared in accordance with the conditions to be imposed by VCW and provided at the risk and expense of Customer. Customer shall at all times guarantee that all materials, information, software, procedures and instructions that it makes available to VCW for the purpose of providing the Maintenance and Support Services is accurate and complete and that all data carriers issued to VCW meet VCW’s specifications.
19 MAINTENANCE AND SUPPORT SERVICES
19.1 VCW will provide Maintenance and Support services by phone or by e-mail, to the contact persons set out in article 18.4, during the business hours agreed upon in the service description. If no business hours are agreed upon, the standard business hours in England (8:00 a.m. to 6:00 p.m. each Working Day) will apply.
19.2 VCW’s obligations are conditional upon Customer being able to provide a full and detailed description of a defect and any other information or documentation which facilitates VCW in reproducing the occurred defect and solving this defect. Customer will first use its best effort to analyse the cause of the error. VCW’s obligations are conditional upon the defect being reproducible.
19.3 In the Agreement a defect will mean a substantial failure to meet the functional specifications set out in the applicable Agreement. In case of a defect, Customer shall provide VCW a detailed notice of the defect. After receiving the notice VCW shall to the best of its ability, do its utmost to fix the defect or in case of software, to make improvements in later, new versions of the software. Depending on the urgency, the results shall be provided to the Customer in the manner and within the time period set out in the Agreement. In case of defects with respect to software, VCW shall be entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the software.
19.4 In the event that that the support services apply to software as well, VCW will support only the version of the software that was originally the subject of this Agreement. For clarity, VCW will only be liable to support a version of the software that existed at the moment the parties entered the contract.
19.5 VCW does not warrant that the Hardware, software, or Cloud Services shall operate without interruption, errors or other defects or that all defects can be corrected.
19.6 If the maintenance services apply to software or hardware that were not provided by VCW, Customer shall make all relevant (technical) documentation and the software source code available to VCW, and grant VCW the right to use same, if VCW deems this to be useful or necessary for carrying out the support service. Customer guarantees that it is entitled to make this data and/or documentation available for the purposes of support by VCW. Customer shall grant VCW the right to use and adapt the software, including the source code and technical (development) documentation, within the context of performing the agreed support service. Customer shall indemnify VCW against any claims by third parties in relation to the provision of this data and/or documentation and VCW’s use thereof within the context of the support service.
19.7 Only if and insofar expressly agreed upon in writing, VCW will be obliged to convert any data.
20 REMOTE ACCESS
20.1 If the Maintenance and Support Services is carried out long-distance or online, the Customer shall for its part ensure that VCW has unrestricted access to all necessary software, services and systems and that the proper infrastructure and telecommunication facilities are in place, in a timely manner. Customer will comply with all instructions and requirements of VCW in this respect. VCW shall be entitled to suspend or limit the services if the remote access including Customer’s infrastructure and telecommunication facilities do not meet the requirements or instructions imposed by VCW.
21 NEW VERSIONS, MAINTENANCE RELEASES AND REPAIR
21.1 Only if this has been agreed upon in the Agreement, VCW will provide Customer with new versions and/or maintenance releases with respect to the software used in the Cloud Services, Smart Services or in the Hardware. Such provision of new versions and/or maintenance releases shall take place at VCW’s discretion.
21.2 VCW may require Customer to adapt its system (hardware, software etc.) if this is necessary in order to ensure the proper functioning of a new version and/or maintenance release.
21.3 VCW shall at its sole discretion decide not to repair any part of the Hardware, if in the opinion of VCW, such repair is not economically viable or is unrepairable as a direct result of obsolescence or unavailability of parts. It is agreed that VCW shall not be deemed as acting unreasonably in adhering to this and shall specify the reasons for the decision in writing upon request from the Customer.
21.4 VCW shall submit a quotation for replacement Hardware to the Customer for approval. In the case where the Hardware is not a ‘like for like’, the quotation will not cover any subsequent programming, commissioning, labour and project management costs.
21.5 In the event the Hardware is deemed as being ‘Beyond Economic Repair’ (BER) and reasonable endeavors are applied to provide a temporary replacement, the temporary replacement will be provided for a maximum period of 30 (thirty) days.
22 EXCLUDED SERVICES
22.1 The Maintenance and Support Services shall not include the fixing of defects arising from or related to:
(i) usage errors or improper use of the Hardware or the Cloud Services or Smart Services;
(ii) changes, repairs or extensions to the Hardware or the Cloud Services or Smart Services, other than those carried out by or on behalf of VCW;
(iii) use of the Hardware or the Cloud Services or Smart Services contrary to the applicable conditions or contrary to the instructions inserted in the documentation provided by VCW;
(iv) changes to or errors, defects or shortcomings in the Hardware, the Cloud Services or the Smart Services that are not included within the scope of the Maintenance and Support Services to be carried out by VCW;
(v) failure by the Customer to have Maintenance and Support Services carried out on Hardware, the Cloud Services or the Smart Services in a timely manner
(vi) the use of an older version of software that is no longer maintained by VCW;
(vii) any problem with the functioning or the use of external systems or software, or the hardware configuration, including without limitation the operating system of the software platform and/or hardware upgrades;
(viii) any problem related with the unsuitability or incompatibility of the hardware and systems used by Customer;
(ix) the operation or use of the Cloud Services or Smart Services in a way that is not compatible with the latest release of the documentation provided by VCW to Customer;
(x) Support related to third party’s software or hardware not supplied by VCW(unless otherwise explicitly agreed upon in the Agreement);
(xi) other causes that are not attributable to VCW.
22.2 Furthermore, the Maintenance and Support Services shall not include the recovery of scrambled or lost data.
22.3 If VCW carries out maintenance and support services in connection with the provisions of article 22.1, VCW shall be entitled to invoice the costs of these services or other work in accordance with its standard rates. This shall not affect the other fees payable by Customer in respect of the Maintenance and Support Services.
23 ADDITIONAL TERMS FOR PROFESSIONAL SERVICES
The provisions set forth in these Additional Terms for Professional Services shall apply if VCW provides its Professional Services. These provisions apply in addition to the General Terms.
23.1 VCW will use its best efforts to provide the Professional Services with due care, in a professional and workmanlike manner and in accordance with the applicable service description. VCW shall provide all services on the basis of a best efforts obligation, unless and in so far it has explicitly undertaken in the written agreement to achieve a specific result and the result in question is sufficiently determined.
23.2 If it has been agreed that the Professional service will be provided in stages, VCW is entitled to delay the start of the Professional Services associated with a stage until such time as Customer has approved the results of the previous stage in writing.
23.3 VCW shall be obliged to follow timely and reasonable instructions issued by Customer during the performance of the Professional service unless the Customer issues instructions that change or extend the content or scope of the agreed Professional service. If such instructions are followed, however, Customer shall pay for that work or services in question in accordance with VCW’s standard rates. The Customer accepts that such additional work or services may affect the agreed or expected time of completion of the Professional Services and the mutual responsibilities of the Customer and VCW.
23.4 VCW is at all times entitled to replace its employees with one or more other employees or subcontractors with the same qualifications.
23.5 Customer will provide all materials, information and other cooperation required by VCW for the purpose of providing the Professional Services. Customer shall prepare and provide all information and material in accordance with the conditions and instructions imposed by VCW. These information and materials are provided at the risk and expense of Customer. Customer guarantees that all materials, information, and instructions that it makes available to VCW for the purpose of providing the Professional Services is accurate and complete and that all information provided to VCW meet VCW’s specifications.
23.6 VCW shall carry out the work during VCW’s standard business hours.
23.7 Except where agreed otherwise in writing, the use by Customer of advice issued by VCW shall in all cases be at Customer’s risk and expense.
24 ADDITIONAL TERMS FOR LONG TERM RENTAL SERVICES
The provisions set forth in these Additional Terms for Rental Services shall apply if VCW provides its Rental Services. These provisions apply in addition to the General Terms.
24.1 The parties enter into the Equipment rental for the period and at the price specified in the rental agreement. This period starts on the day that VCW delivers the Equipment. By signing the delivery note, the Customer confirms they have received the rented items in good condition. The rental ends on the end date agreed in the rental agreement if the Customer has returned all the Equipment to VCW in good condition.
24.2 If the Customer cancels the order to rent Equipment fewer than 14 (fourteen) days before the order is executed, VCW may charge the costs already incurred for executing the order, subject to a minimum of 50% of the agreed price.
24.3 If the Contract for Rental Services is cancelled by the Customer after VCW has dispatched the Rental Equipment, VCW will charge the Customer the full Contract value.
24.4 If VCW has not received the Equipment back or has not received it all in good condition by the end date, the end date will be considered reached when the Customer returns all the Equipment to VCW in good condition.
24.5 If the Customer returns the Equipment to VCW within the agreed rental period, the initially agreed rent will remain payable for the entire agreed period.
24.6 The Customer undertakes to pay the agreed rent and the fees and costs resulting from an agreement.
24.7 The Customer undertakes to return the Equipment, in good condition and with all accessories, to VCW right after the end of the rental period, i.e. by 10 a.m. on the day after the rental period ends, to an address specified by VCW, failing which the Customer will be in default with no need for a further reason or notice of default.
24.8 If the Customer does not return all the rented Equipment to VCW undamaged, for whatever reason, VCW may charge all necessary repair costs to the Customer. VCW has no other burden of proof than to submit a specified invoice for the defects it has identified and the resultant repair costs.
24.9 Unless agreed otherwise, the Customer strictly may not provide, sell or sublet the Equipment to third parties. If the Customer sublets the Equipment with VCW’s consent, the Customer still remains fully responsible and liable.
25 RISK AND OBLIGATION TO INSURE
25.1 The Customer must use and maintain the Equipment that VCW provides in sound condition in accordance with its nature and purpose.
25.2 Throughout the rental period, the Customer bears the full risk for the rented Equipment, no matter what event, act or omission causes any damage, thus including force majeure. The Customer must compensate all damage to the rented Equipment based on its replacement value.
25.3 The Customer must insure and keep the rented Equipment insured during the rental period through a reputable company at new-for-old value.
26 REPAIRS
26.1. During the rental period, any necessary changes or repairs to the rented Equipment will be performed by or on behalf of VCW. The Customer may have any changes or repairs performed by expert personnel only with VCW’s prior written consent and using only original parts.
26.2 All repair costs resulting from normal wear and tear of the rented Equipment are payable by VCW. All repair and other costs resulting from overloading, incompetent use, and so on are payable in full by the Customer. The Customer must immediately report any defects in the rented Equipment to VCW in writing.
26.3 During the rental period, VCW may always check the condition and manner of use of the rented Equipment. The Customer must grant access to the rented Equipment immediately on VCW’s request.
26.4 Unless VCW gives its express written consent, the Customer may not take, or allow a third party to take, the rented Equipment from installation site, give it to a third party to use, or transfer all or part of any right under an agreement to third parties.
27 OTHER OBLIGATIONS OF THE CUSTOMER
27.1 The protective or packaging material supplied with any rental agreement remains VCW’s property. If any protective or packaging material is missing when the Customer returns the rented Equipment, VCWwill charge the Customer for each item’s missing packaging.
27.2 VCW may terminate a rental agreement with immediate effect and no judicial intervention if the Customer fails to fulfil a material obligation under that rental agreement. In that case, the Customer will at least owe VCW compensation equal to the sum of the rent instalments stipulated in the relevant agreement, less what the Customer has already paid, plus fees and costs, notwithstanding VCW’s right to claim full compensation from the Customer. VCW may then also repossess the Equipment immediately.
27.3 The Customer must allow anyone who wishes to exercise any right to or regarding the Equipment – in particular the bailiff levying attachment for outstanding taxes – to examine the rental agreement immediately, so as to inform them that the rented items belong to VCW, and then notify VCW of this immediately by registered letter, submitting all relevant documents, or otherwise forfeit a penalty equal to the purchase price of the rented Equipment.
27.4 If there is a delay in the return of the Equipment, VCW may charge the Customer an amount at least equal to the agreed rental price per day, plus a 25% surcharge, for each day or part of a day that the Equipment is delivered late, notwithstanding VCW’s further rights to compensation for the full damage it has suffered.
27.5 The Customer is liable for all damage VCW suffers because of loss or damage to the Equipment while the Customer has or should have had the Equipment in its possession. Theft on location is at the Customer’s expense and risk.
27.6 Immediately on VCW’s request, the Customer must pay a deposit that VCW will determine.
27.7 If damage to the rented Equipment occurs, VCW may deduct the repair costs and any late return charges from the refundable deposit.
27.8 VCW will never be liable for any damage or loss resulting from fire, shocks, injuries or any other cause attributable to the improper functioning or deterioration of the Equipment, any part of it, or any wiring to or from the Equipment.
27.9 VCW will never be liable for damage to tapes, diskettes and other data carriers, regardless of the cause of the damage, or for any damage resulting from the total or partial deletion, deterioration or garbling of images and files recorded or to be recorded, even if that deletion, deterioration or garbling is due to malfunctioning of the Equipment with fittings or an error by VCW’s personnel.
27.10 To prevent damage caused by losing recordings and files, VCW recommends always making a working copy and not using the original for screening displays and so on.