These general terms and conditions (the “Agreement”) apply to all use of the “Guid3d” web-based and mobile applications, associated application programming interfaces, and the administration portal (the “Platform”) and is a legally binding contract between:
- Example 2
- Example 3
Guid3d Limited (a private limited company incorporated under the laws of England and Wales and having its registered place of business at 20-22 Wenlock Road, London, England. N1 7GU (the “Supplier”); and the natural person or corporate entity that has, through its authorised representative, subscribed to use the Platform (by subscribing online, submitting a request directly to an authorised
representative of the Supplier, or signing an order form referencing this Agreement and / or the Pricing Schedule with the Supplier or its authorised re-seller (an “Order Form”)) (the “User”). If the User does not agree to this Agreement then it must not use, and shall immediately stop using, the Platform. COMMENCEMENT AND DURATION This Agreement is effective and legally binding from: the effective date of the relevant Order Form; or the point in time that the User first uses the Platform, whichever occurs first (the “Effective Date”) and shall thereafter continue, unless and until terminated in
accordance with the provisions of the relevant Order Form or this Agreement, for the subscription period described in the relevant Order Form (the “Subscription Period”). PERMISSIONS AND CONDITIONS OF USE Licence: Subject to the User’s continuing compliance with this Agreement, the Supplier grants the User a non-exclusive and non-transferable right to permit its directors, employees, contractors, and officers (“Authorised Users”) to access and use the Platform during the Subscription Period solely for the permitted purposes described in clause 3.2. Permitted Purposes: The User shall use the Platform in accordance with the conditions of use described in clause 3.3 and for use in the User’s internal operations and for the limited purposes described in this Agreement only. Conditions of Use: The User shall not: permit anyone to access or
use the Platform who is not an Authorised User or subject the Platform to any form of automated or robotic processes; submit any material to the Platform unlawfully (including in breach of the Data Protection Legislation) or in facilitation of illegal activity; use the Platform in a way that could damage, disable, overburden, impair, or compromise the Supplier’s systems or security or interfere with other users of the Platform; use the Platform to: (a) threaten, harass or cause distress, annoyance, needless anxiety or discomfort to any other person or entity; (b) carry out any unlawful or fraudulent act; (c) upload data which is intended or is likely to deceive; (d) transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation; (e) knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware; (f) impersonate a person or entity; (g) engage in activities that may put the ongoing operational and commercial viability of the Platform at risk; have any right to copy, adapt, reverse engineer, de-compile, disassemble, modify, adapt or make error corrections to the Platform except, with
respect to de-compilation of the Platform only, to the extent expressly permitted by the Copyright, Designs and Patents Act 1988 and with prior written notice to the Supplier; access the Platform in order to build a platform or service which competes with the Platform or the business of the Supplier; or use the Platform to provide services to third parties. THE PLATFORM The Supplier makes the Platform available with reasonable skill and care and shall ensure that the Platform performs (in technical and functional respects) substantially in accordance with the description of the Platform located at https://www.Guid3d.co.uk (the “Platform Specification”). The Supplier will provide the User the ability to use the Platform and associated functionality on-demand. The Supplier has sole discretion and control over, and may modify at any time (with notice to the User), the functionality, performance, configuration, appearance and content of the Platform (and may reflect this in updates to the
Platform Specification) provided that, in each case such modifications do not result in a material reduction to, or loss of, the functionality, performance, transmission speeds, content, latency and/or accuracy of the Platform. The Supplier shall perform secure back-ups of User Data (as defined in clause 5.2 (DISCLAIMERS)) held in the Supplier’s own or external systems not less than once in every period of twenty-four (24) hours. The Supplier does not warrant or represent that the User’s use of the Platform shall ensure the User’s compliance with applicable laws (including Data Protection Legislation) and the parties agree that all information of a legal nature (including relating to Data Protection Legislation and SARS-CoV 19) available: (a) through the Platform; and/or (b) in the online help, FAQs, manuals, and/or questionnaires made available by the Supplier are used at the User’s own risk, and under no circumstances constitute the provision of legal advice by the Supplier. The provision of set-up, direct training, and other such professional services may be agreed between the parties from time to time in writing (including in an Order Form) and may be subject to charges and/or fees.
DISCLAIMERS Subject to clause 14.11 (LIABILITY) and except to the extent expressly set out in clause 4 (THE PLATFORM), the Supplier gives no warranties, representations, or other commitments to the User as to the quality, accuracy, and/or regulatory compliance of practical completion handover, homeowner handover and/or building management handover of the content created and/or uploaded by the User on the Platform. In the event of any loss or damage to any data or information submitted to the Platform by or on behalf of the User (including by the Supplier) (the “User Data”), the User’s sole and exclusive remedy shall be for the Supplier to use its reasonable commercial endeavours to restore the lost or damaged User Data from the last available back-up of such User Data maintained by the Supplier in accordance with clause 4.3. The Supplier shall have no liability 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 User acknowledges that use of the Platform may be subject to limitations, delays and other problems inherent in the use of such
CONFIDENTIALITY In this clause 6 (CONFIDENTIALITY) and where used elsewhere in this Agreement, “Confidential Information” means any and all information that is proprietary and/or confidential in nature and is either clearly labelled as such or would, by its nature, be considered by a reasonable business person to be confidential. The obligations contained in this clause 6 (CONFIDENTIALITY) shall not apply to Confidential Information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party without use or reference to the other party’s Confidential Information. Each party shall: (a) use commercially reasonable endeavours to hold the other party’s Confidential
Information in confidence (including by using the same care and discretion to avoid disclosure, publication or dissemination as it uses to protect its own similar information); and (b) subject to clause 6.4, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than in connection with the provision or receipt of the Platform (as the case may be). Either party may disclose the other party’s Confidential Information if and to the extent required by applicable law or by any regulatory body or securities exchange, provided that the disclosing party shall as soon as reasonably practicable and to the extent permitted by applicable law notify the other party in writing of the circumstances of such disclosure and the Confidential Information to which such disclosure applies. The User warrants and represents to the Supplier that it has the right to disclose the Confidential Information and to authorise the Supplier to use such Confidential
Information in connection with the Platform.
USER PERSONAL DATA Each party shall comply with their respective obligations set out in the Data Protection Addendum available through the Platform.
USE OF AGGREGATED DATA The Supplier may collect, group, anonymise and aggregate data and information submitted to the Platform (the “Aggregated Data”) for the purpose of analysing the performance of the Platform, optimising and making improvements to the Platform (including for efficiency and functional performance) and the Supplier’s business, analysing use of the Platform, informing the Supplier’s business decisions, revealing market trends, and monitoring user satisfaction and the User hereby gives its consent to the same. The Supplier shall ensure that Aggregated Data is not attributable to any particular User. USER’S OBLIGATIONS The User
shall: perform, or procure the performance of, if any, obligations and dependencies listed in the Order Form (including for the purposes of completing on-boarding); have responsibility for, and shall pro-actively manage: (a) the access control for the Authorised Users; and (b) the push notifications to Authorised User’s devices; comply with all applicable laws, regulations and binding codes of practice with respect to its activities under and in connection with this Agreement; obtain and shall maintain all necessary licences, consents, and permissions necessary for it to: (a) provide and/or make available the User Data and User Personal Data (as defined in the Data Protection Addendum) under this Agreement; and (b) connect its computing
environment to the Platform (including all hardware and equipment required to use the Platform); and be solely responsible for procuring and maintaining the hardware necessary to use the Platform and its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the internet. The User is responsible for all acts and omissions of Authorised Users as if such acts or omissions were its own. An obligation of the User contained in this Agreement (unless the context reasonably requires otherwise) includes an obligation on the User to ensure that an Authorised
User does not act, or omit to act, in breach of that obligation.
FEES AND PAYMENT The Service will commence at the User’s discretion and be triggered when representatives of the User request a service or commences use of the Platform. The “Fees” payable under and in connection with this Agreement shall be described in the relevant invoice and be completed in line with the cost structure outlined in this Agreement and the agreed Pricing Schedule The Fees shall be invoiced upon receipt of the request for the known development / plot numbers at the point of User Onboarding and paid annually in advance. Any future invoices will be generated based on any new User requests received and / or the developments / plots
created on platform and be invoiced upon request to be paid annually in advance. All amounts and Fees stated or referred to in this Agreement are exclusive of all sales taxes (including any value added tax). Value added tax shall be added to the Fees at the appropriate rate (if applicable).
INTELLECTUAL PROPERTY RIGHTS In this clause 11 (INTELLECTUAL PROPERTY RIGHTS) and where used elsewhere in the Agreement: “Intellectual Property Rights” means: (a) patents, registered designs, applications for any of the foregoing, the right to apply for and be granted any of the foregoing, rights in inventions; (b) copyrights, design rights, moral rights, publication rights, database rights; (c) trademarks and service marks, applications
for any of the foregoing, the right to apply for any of the foregoing, rights in trade names, business names, brand names, get-up, logos, domain names and URLs; (d) rights in know-how, trade secrets and confidential information, data exclusivity rights; and (e) all other forms of intellectual property right having equivalent or similar effect to any of the foregoing which may exist anywhere in the world. The User acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in: (a) the Platform (excluding the User Data); (b) all materials provided and/or made available as part of providing the Platform; and (c) any/all adaptations, add-ons, modifications, updates, and/or enhancements to the Platform and such materials (including at the request
and/or suggestion of the User or an Authorised User), (the “Supplier’s IPR”). The Supplier may freely incorporate into the Supplier’s IPR any feedback and/or suggested improvements to the Supplier’s IPR given by the User or an Authorised User. Except as expressly stated in this Agreement, the User shall have no right or interest in the Supplier’s IPR. The User owns all Intellectual Property Rights in and to all of the User Data and shall have sole responsibility for the legality, non-infringement, reliability, integrity, accuracy and quality of the User Data. The User hereby grants to the Supplier (and its representatives and sub-contractors) a non-exclusive, non-transferrable right to use the User Data strictly to the extent necessary for the Supplier (or the Supplier’s representative or sub-contractor as the case may be) to provide and make available the Platform. INDEMNITIES The User shall indemnify and hold harmless the Supplier, its affiliates, its and their officers, directors, sub-contractors, and employees against any Losses arising out of or in connection with any allegation or claim that the User Data: (a) infringe any Intellectual Property Rights; or (b) have been provided in breach of
applicable laws (the “User Indemnity”). The Supplier shall ensure that: (a) the User is given prompt notice of any allegation or claim to which the User Indemnity applies; (b) it provides reasonable co-operation to the User in the defence and settlement of such claim; and (c) the User is given, where possible, sole authority to defend or settle the claim. Subject to clause 12.4, the Supplier shall indemnify and hold harmless the User against any claim made against it by a third party to the extent that such claim alleges that the User’s use of the Platform in accordance with this Agreement infringes any Intellectual Property Rights belonging to that third party (the “Supplier Indemnity”), provided that the Supplier indemnity shall only apply if: (a) the Supplier is given
prompt notice of any such claim (and in any event is given notice within five (5) days of the User becoming aware of, or being notified of, the claim); (b) the User provides reasonable co-operation to the Supplier in the defence and settlement of such claim; and (c) the Supplier is given sole authority to defend or settle the claim. In the defence or settlement of any claim to which the Supplier Indemnity applies, the Supplier may procure the right for the User to continue using the Platform, replace or modify the Platform so that it becomes non-infringing or, if such remedies are not reasonably available, terminate or suspend this Agreement (and the User’s access to the Platform) on notice to the User without any additional liability to the User. In no event shall the Supplier, its employees,
agents or sub-contractors be liable to the User to the extent that the claim to which the Supplier Indemnity applies is based on: (a) a modification of the Platform by anyone other than the Supplier or its representatives; and/or (b) the User’s use of the Platform in a manner contrary to the instructions given to the User by the Supplier or applicable laws. The User shall have no rights and remedies in respect of infringement of any third-party Intellectual Property Rights except as expressly set out in clause 3. TERMINATION Each party shall have the right to terminate the Subscription Period for convenience (e.g., without cause) by providing
not less than one (3) month’s written notice provided that, where the User exercises its rights under this clause 13.1, the User shall not be entitled to receive a refund, rebate, and/or credit of any Fees that have been paid. Without affecting any other right or remedy available to it, either party may terminate this Agreement and the Subscription Period with immediate effect by giving written notice to the other party if the other party commits a Material breach (or a series of persistent breaches which together amount to a Material breach) of any term of this Agreement that: (a) is irremediable; or (b) if such breach is remediable, is not so
remedied within thirty (30) calendar days from written notice requiring remedy of the Material The Supplier may terminate this Agreement if the User (or an Authorised User) commits any breach (Material or otherwise) of any one or more of the following clauses: 3 (PERMISSIONS AND CONDITIONS OF USE); 6 (CONFIDENTIALITY); and/or 9 (USER’S OBLIGATIONS). On termination or expiry of this Agreement for any reason: (a) all rights and licences granted under this Agreement shall immediately terminate and
the User must cease using the Platform; (b) each party shall return, and make no further use of, any equipment, property, and other items (and all copies of them) belonging to the other party; and (c) the Supplier may destroy or otherwise dispose of any of the User Data in its possession unless the Supplier receives, no later than ten (10) calendar days from the effective date of the termination or expiry of this Agreement, a written request for the delivery to the User of such User Data. Termination or expiry of this Agreement (howsoever occurring) shall be without prejudice to any rights or liabilities which may have accrued up to the date of such termination or expiry and it shall not affect the coming into force or the
continuance in force of any of its provisions which are expressly or by implication intended to come into or continue in force on or after such termination or expiry. LIABILITY Nothing in this Agreement shall limit or exclude either party’s liability to the other to a greater extent than is permitted under applicable law for Losses resulting from: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; or (c) any matter in respect of which Losses may not be limited or excluded under applicable laws. Except as expressly provided otherwise in clause 14.3, nothing in this
Agreement shall limit or exclude Losses that are subject to the User Indemnity or the Supplier Indemnity. Subject to clause 14.1 and clause 14.2, neither party shall be liable to the other (or any third party claiming under or through the other) under any and all causes of action (whether such causes of action arise in contract (including under any indemnity or warranty), in tort (including negligence or for breach of statutory duty) or otherwise) for Losses that comprise: (a) loss of profit or revenue (except for the Fees); (b) loss of anticipated savings; (c) loss of contract or business opportunity; (d) depletion of goodwill; (e) loss
or corruption of data or information except as described in clause 5.2; or (f) any special, indirect or consequential loss, in each case, whether arising directly or indirectly under or in connection with this Agreement and whether or not reasonably foreseeable, reasonably contemplatable, actually foreseen or actually contemplated by a party. Subject to clauses 14.1, 14.2 and 14.3, each party’s total aggregate liability to the other (and to any third party claiming under or through the other) in each Contract Period and in respect of all causes of action (whether such causes
of action arise in contract (including under any indemnity or warranty), in tort (including negligence or for breach of statutory duty) or otherwise) arising in that Contract Period (as determined at the date when the liability giving rise to the cause of action arose) shall not exceed one hundred percent (100%) of the total Fees paid by the User to the Supplier in respect of the Contract Period in question. The parties agree that the
provisions of this clause 14 (LIMITATION OF LIABILITY) are considered by them to be reasonable in all the circumstances, having taken into account section 11 and the guidelines in schedule 2 of the Unfair Contract Terms Act 1977 and the nature of the services described in this Agreement and the Fees. FORCE MAJEURE Other than in respect of the User’s obligation to pay the Fees or agreed expenses, neither party shall have any liability to the other under this Agreement if it is prevented from or delayed in performing its obligations, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other
industrial disputes, failure of a utility service or transport or telecommunications network, epidemic or pandemic, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm. GENERAL Survival: The rights and obligations under provisions of this Agreement which expressly or by their nature survive termination shall remain in full force and effect. Sub-contracting: The Supplier may sub-contract the
performance of its obligations (or any part thereof) to any third-party service-provider provided that the Supplier shall remain responsible for all acts and omissions of such third party service-providers that result in a breach of the Agreement. Variations: No variation of this Agreement shall be effective unless it is in writing (which may be by e-mail) and agreed by the parties. No Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by applicable 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. Severability: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is
necessary to give effect to the commercial intention of the parties. Entire Agreement: This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this
Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Assignment: Except in respect of invoice financing or the recovery of a debt owed, neither party shall assign any of its rights under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or
delayed. Third Party Rights: This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Act 1999. No Partnership: Nothing in this Agreement or through use of the Platform is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other party, nor
authorise a party to make or enter into any commitments for or on behalf of the other party. Publicity: We may wish to publicise our involvement in this matter. We shall assume that you are happy for us to do so unless you instruct us to the contrary. Governing Law & Jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the courts of England and Wales shall have exclusive
jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including non-contractual disputes or claims).
In this Agreement:
the headings are for convenience only and shall not affect its interpretation;
any obligation on a party not to do something, includes an obligation not to agree, allow, permit or acquiesce to that thing being done;
any reference in this Agreement to any enactment or statutory provision or
subordinate legislation will be construed as a reference to it as from time to time replaced, amended, consolidated or re-enacted (with or without modification) and includes all orders, rules or regulations made under such enactment; references to a party shall be construed as the User or the Supplier and parties shall be construed as the User and the Supplier taken together;
any list, word, or phrase following the words including, include, in particular, for example, or any such similar expression shall be construed as having the phrase without limitation following them; the rule known as eiusdem generis shall not apply and accordingly, words introduced by the word other shall not be given a restrictive meaning by reason of the fact that such words are preceded by words indicating a particular class of acts,
matters or things; a reference to the performance of an obligation from a given date shall include that date; “Contract Period” means each calendar month or each successive period of twelve (12) calendar months from the Effective Date; “Losses” means all losses, liabilities, damages, costs, charges, and reasonably incurred expenses (including management time, legal fees, other professional advisers’ fees, and costs and disbursements of investigation, litigation, settlement, judgment, interest, fines, penalties and remedial actions) howsoever arising in connection with a party’s breach of the Agreement; and “Material” in the context of classifying the seriousness of a breach means that such breach is: (a) more than trivial but need not be repudiatory; and (b) if not remedied (or if not capable of remedy), may or is likely to have, a serious impact on the benefit which the innocent party would otherwise derive from performance of the Agreement in accordance with its terms.