Giraffe360 offers a service that:
(a) allows users to create high-dynamic-range images, 3D scans and videos of properties, and to collect data relating to such properties using Giraffe360 camera equipment (each such image, scan, video or captured data set being a “Capture Asset”);
(b) processes such Capture Assets through a cloud-based production service to create virtual tours, floorplans and other high quality photography (collectively, the “Giraffe360 Content”); and
(c) makes such Giraffe360 Content available to you to view, download and manage through a content management platform that Giraffe360 makes available as a service at Giraffe360.com/app (the “Content Management System”), (collectively, the “Giraffe360 Service”).
This Agreement (comprising the Order Form and these Terms of Service) sets out the terms and conditions upon which you may use the Giraffe360 Service, Giraffe360’s camera equipment and Giraffe360 Content, and any application or functionality Giraffe360 makes available through the Giraffe360 Service.
By signing an Order Form, you agree to and accept these Terms of Service and the Order Form.
2. INFORMATION ABOUT GIRAFFE360
The Giraffe360 Service is provided by Giraffe360 Limited, a company registered in England with company number 11274984 and its registered office at 9th Floor 107 Cheapside, London, United Kingdom, EC2V 6DN (“Giraffe360”).
3.1 In these Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:
“Additional Services” means the additional services to be provided by Giraffe360 to the Client, as agreed between the parties and described in the Order Form;
“Additional Services Fee” means the amount set out in the Order Form relating to the provision of the Additional Services;
“Agreement” means the agreement between the Client and Giraffe360, comprising the Order Form and the Terms of Service, for the provision of the Giraffe360 Service;
“Billing Period” means the period specified in the Order Form;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Camera Unit” means the digital camera equipment that Giraffe360 makes available for the capturing of high quality images and digital information and automatic uploading of such images and information to the Content Management System, together with tripod, cables and carrying bag;
“Capture Asset” has the meaning given to it in the Introduction;
“Capture Session” means the period from each activation of the Camera Unit to the next deactivation of the Camera Unit;
“Change Plan” has the meaning given to it in clause 9.2;
“Change Request” has the meaning given to it in clause 9.1;
“Client” or “you” means the person identified on the Order Form;
“Client Account” means an account with an ID and password that the Client uses to access the Content Management System;
“Client Data” means the Giraffe360 Content and any other content or data that the Client makes available to Giraffe360 and that is hosted by Giraffe360 in connection with the provision of the Giraffe360 Service;
“CMS Access Fee” means the amount set out in the Order Form, or such other amount that the parties may agree, relating to the Client’s ongoing access to the Content Management System following termination of all Subscriptions;
“CMS Access Period” means the period commencing on the Delivery Date (or, where the Client orders multiple Subscriptions, the earliest Delivery Date) and ending on:
(a) the date on which all Subscriptions under the Agreement expire or are terminated; or
(b) if the Client notifies Giraffe360 that it wishes to continue having access to the Content Management System after this date, the date on which the Agreement is terminated in accordance with clause 4.4 or clause 16.;
“Confidential Information” means information which is identified as confidential or proprietary by either party, or by the nature of which is clearly confidential or proprietary;
“Content Management System” has the meaning given to it in the Introduction;
“Data Fee” means the amount set out in the Order Form, or such other amount as the parties may agree, relating to the Client’s use of the Content Management System;
“Delivery Address” means the address specified in the Order Form, or such other location as the parties may agree in writing;
“Delivery Charges” means the amounts set out in the Order Form relating to the delivery of the Camera Units to the Client and return of the Camera Units by the Client;
“Delivery Date” means the date on which a Camera Unit is delivered to the Client at the Delivery Address;
“Security Deposit” means the amount set out in the Order Form;
“DPA” has the meaning given to it in clause 11.1;
“Extended Renewal Date” means the date that is the last day of an Extended Subscription Period;
“Extended Subscription Period” has the meaning set out in clause 4.3;
“Fees” means the Subscription Fees and, where applicable, the Delivery Charges, Set-up Fees, Data Fees, Additional Services Fees, CMS Fees and Overage Fees;
“First Billing Period” means:
(a) in relation to a Subscription, the Billing Period commencing on the first day of the Initial Subscription Period;
(b) in relation to the payment of Overage Fees and Data Fees, the Billing Period commencing on the Delivery Date or, where the Client orders multiple Subscriptions, the earliest Delivery Date; or
(c) in relation to the CMS Access Fee, the Billing Period commencing on the day after the termination or expiry of all Subscriptions;
“Giraffe360 Content” has the meaning given to it in the Introduction;
“Giraffe360 Service” has the meaning given to it in the Introduction;
“Group” means, in relation to a company, that company, any subsidiary or holding company (each having the meanings in sections 1161 and 1162 of the Companies Act 2006) from time to time of that company, and any subsidiary from time to time of a holding company of that company;
“Initial Renewal Date” means the date that is the last day of the Initial Subscription Period;
“Initial Subscription Period” means the period specified in the Order Form;
“Invoice Due Period” means the period specified in the Order Form;
“Order Form” means the order form signed (whether electronically or otherwise) by the parties, and which, amongst other things, identifies the Client and sets out the Fees;
“Overage Charging Period” means:
(a) the Initial Subscription Period (or, where the Client orders multiple Subscriptions, the period commencing on the earliest Delivery Date and ending on the latest Initial Renewal Date); or
(b) an Extended Subscription Period (or, where the Client orders multiple Subscriptions, the period commencing on the latest Initial Renewal Date or latest previous Extended Renewal Date (as applicable) and ending on the next Extended Renewal Date),
“Overage Fee” means the amount set out in the Order Form, or such other amount that the parties may agree, payable by the Client in respect of any Projects created and managed by the Client through the Giraffe360 Service in excess of the Project Limits;
“Prepayment Fee” means the amount set out in the Order Form, or such other amount that the parties may agree, payable by the Client and refundable by Giraffe360 as set out in clause 14.2.
“Prohibited Personal Information” means any of the following:
(a) personal data identified in Article 9 of Regulation (EU) 2016/679 or relating to criminal convictions and offences;
(b) documents or information relating to court, tribunal or arbitration proceedings;
(c) cardholder or sensitive authentication data (as defined in the Payment Card Industry Data Security Standard) or information relating to an individual’s finances;
(d) national identity or other government issued identity numbers;
(e) education records;
(f) information relating to children under the age of sixteen (16); or
(g) any other information or documents that are either marked as sensitive, private or confidential or that would reasonably be considered as sensitive, private or confidential;
“Project” means a collection of up to forty (40) Capture Assets created:
(a) by the Client using the Giraffe360 Service from images and information collected by a Camera Unit in a single Capture Session in a single property;
(b) by the Client merging the Capture Assets in relation to the same property from multiple Capture Sessions, using the Content Management System within a twenty four (24) hour period from the date of the first Capture Session; or
(c) by Giraffe360 merging the Capture Assets in relation to the same property from multiple Capture Sessions;
“Project Limits” means the maximum number of Projects that the Client may have during an Overage Charging Period without being subject to Overage Fees, as set out in the Order Form;
“Set-up Services” means the services described in the Order Form, and any other configuration required to enable the Client to use the Giraffe360 Service;
“Subscription” means the hire of a Camera Unit by Giraffe360 to the Client;
“Subscription Fee” means the amount set out in the Order Form, or such other amount as notified by Giraffe360 to the Client under clause 4.4, relating to the Client’s use of and access to the Giraffe360 Service;
“Subscription Period” means, in respect of a Camera Unit, the duration of the relevant Subscription, being the Initial Subscription Period and any Extended Subscription Periods;
“Terms of Service” means these terms and conditions of service, as amended from time to time;
“Third Party Sites” has the meaning given in clause 8.3;
“VAT” means value added tax (and any equivalent tax payable in any jurisdiction);
“Virus” means any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices.
4. DURATION AND SUBSCRIPTION PERIODS
4.1 The Agreement shall commence on the date the Client signs (electronically or otherwise) the Order Form and shall continue for the CMS Access Period.
4.2 Each Subscription shall commence on the applicable Delivery Date and shall continue, unless and until it is terminated in accordance with clause 4.3 or clause 16., for the applicable Subscription Period.
4.3 Each Initial Subscription Period shall automatically extend for a further period of the same duration as the Initial Subscription Period (an “Extended Subscription Period”) at the end of the Initial Subscription Period and at the end of each Extended Subscription Period thereafter, unless either party gives written notice to the other party to terminate the relevant Subscription at the end of the Initial Subscription Period or the then-current Extended Subscription Period (as applicable), such notice to be given no later than thirty (30) days prior to the expiry of the Initial Subscription Period or Extended Subscription Period (as applicable).
4.4 After termination of all Subscriptions under the Agreement, either party may terminate the Agreement upon giving to the other not less than thirty (30) days’ written notice.
5. USE AND CARE OF CAMERA UNITS
5.1 Giraffe360 shall hire to the Client such number of Camera Units as agreed between the parties and specified in the Order Form for the applicable Subscription Period(s) on the terms and conditions of the Agreement.
5.2 Subject to the payment to Giraffe360 of the Delivery Charges and Prepayment Fees (and, where applicable, the Security Deposit) in relation to each Subscription, Giraffe360 shall deliver the Camera Unit(s) to the Client as agreed between the parties and specified in the Order Form.
5.3 All Camera Units shall at all times remain the property of Giraffe360 and the Client shall have no right, title or interest in or to the Camera Units (save the right to possession and use of the Camera Units subject to the terms and conditions of the Agreement).
5.4 The risk of loss, theft, damage or destruction of a Camera Unit shall pass to the Client on the transfer of physical possession of the Camera Unit to the Client or to anyone who accepts delivery of the Camera Unit on behalf of the Client at the Delivery Address. Each Camera Unit shall remain at the sole risk of the Client during the applicable Subscription Period, and any further period until such time as the Camera Unit is redelivered to Giraffe360 (the “Risk Period”).
5.5 The Client shall give immediate written notice to Giraffe360 in the event of any loss of or damage to the Camera Unit arising out of or in connection with the Client’s possession or use of the Camera Unit.
5.6 The Client shall, in respect of each Subscription:
(a) maintain at its own expense each Camera Unit in good and substantial repair in order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted);
(b) take such steps as may be necessary to ensure, so far as is reasonably practicable, that each Camera Unit is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) not make (or permit any other person to make) any repair or alternation to the Camera Unit without the written consent of Giraffe360;
(d) keep Giraffe360 fully informed of all material matters relating to the Camera Unit;
(e) permit Giraffe360 or its duly authorised representative to inspect the Camera Unit at all reasonable times and for such purpose to enter upon any premises at which the Camera Unit may be located, and shall grant reasonable access and facilities for such inspection;
(f) not, without the prior written consent of Giraffe360, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Camera Unit or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(g) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Giraffe360 in the Camera Unit;
(h) not suffer or permit the Camera Unit to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process; if all Camera Unit are so confiscated, seized or taken, the Client shall notify Giraffe360 and the Client shall at its sole expense use its best endeavours to procure an immediate release of the Camera Unit and shall indemnify Giraffe360 on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(i) not use the Camera Unit for any unlawful or unethical purpose;
(j) ensure that at all times the Camera Unit remain identifiable as being Giraffe360’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Camera Unit;
(k) deliver up each Camera Unit at the end of the applicable Subscription or on earlier termination of that Subscription at such address as Giraffe360 requires, or if necessary allow Giraffe360 or its representatives access to the Client’s premises or any premises where the Camera Unit is located for the purpose of removing the relevant Camera Unit; and
(l) not do or permit to be done anything which could invalidate the insurances referred to in clause.
5.7 The Client shall be responsible for any loss of or damage to any Camera Units during the Subscription Period and the Risk Period, and the Client undertakes to indemnify Giraffe360 on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the client to comply with the terms of clause 5.6.
6. SET-UP SERVICES AND ADDITIONAL SERVICES
6.1 Giraffe360 shall provide any Set-up Services and Additional Services to the Client with reasonable skill and expertise, in accordance with the Agreement.
6.2 In performing the Set-up Services and Additional Services, Giraffe360 shall comply with the Client’s reasonable instructions, and the Client shall provide Giraffe360 with access to any premises, information or systems as Giraffe360 may reasonably require in order to provide the Set-up Services and/or Additional Services.
7. ACCESS TO THE CONTENT MANAGEMENT SYSTEM
7.1 Giraffe360 grants the Client a non-exclusive, non-sublicensable, non-transferable licence, during the CMS Access Period, to access and use the Content Management System in accordance with and subject to the terms and conditions of the Agreement.
7.2 The Client must:
(a) treat any username and password used to access the Content Management System or Client Account as Confidential Information;
(b) not disclose such information to any third party; and
(c) take appropriate safeguards in accordance with good industry practice to prevent unauthorised access to the Content Management System.
7.3 The Client is responsible for maintaining the confidentiality of its login details for its Client Account and for any activities that occur under its Client Account.
7.4 Giraffe360 encourages the Client to use “strong” passwords (using a combination of upper and lower case letters, numbers and symbols) with its Client Account.
7.5 The Client must prevent any unauthorised access to, or use of, the Content Management System, and must promptly notify Giraffe360 in the event of any such unauthorised access or use. If the Client has any concerns about the login details for its Client Account, or thinks any of them may have been misused or stolen, the Client shall notify Giraffe360 in writing at firstname.lastname@example.org or at: Suite LP52866, 20-22 Wenlock Road, London, N1 7GU, United Kingdom.
8. CLIENT’S OBLIGATIONS WITH RESPECT TO THE GIRAFFE360 SERVICE
8.1 The Client:
(a) must comply with all applicable laws and regulations with respect to its use of the Giraffe360 Service and its activities under the Agreement;
(b) must use the Giraffe360 Service in accordance with the terms of the Agreement;
(c) must notify Giraffe360 in writing if there are any changes to any of the Client’s contact details as set out in the Order Form;
(d) must ensure that its network and systems, including its internet browser and operating systems, comply with any relevant specifications provided by Giraffe360 in writing (including e-mail) from time to time;
(e) is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Giraffe360 Service; and
(f) must not do, or allow any other persons to do, any of the following:
(i) access, store, distribute, or transmit any Virus through the Giraffe360 Service;
(ii) use the Giraffe360 Service to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive;
(iii) use the Giraffe360 Service in a manner that is illegal or causes damage or injury to any person or property;
(iv) use any automated system, including without limitation “robots”, “spiders”, or “offline readers”, to access the Giraffe360 Service in a manner that sends more request messages to the Giraffe360 Service than a human can reasonably produce in the same period of time by using a conventional online web browser;
(v) attempt to interfere with or compromise the integrity or security of the Giraffe360 Service,
and Giraffe360 reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Client Account or access to all or any part of the Giraffe360 Service by the Client, for any breach of any provision of this clause 8.1(f).
8.2 Giraffe360 may monitor the Client’s use of the Giraffe360 Service to ensure the quality of, and improve, the Giraffe360 Service, and verify the Client’s compliance with the Agreement.
8.3 The Giraffe360 Service may contain links to, or call the servers of, third party websites, data or services that are not under Giraffe360’s control, solely at the direction of and/or as a convenience to the Client (“Third Party Sites”). As such, Giraffe360 is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the Client’s risk.
8.4 The Client shall indemnify and defend Giraffe360, and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees) arising out of a claim brought by any other third party relating to the Client’s use of the Giraffe360 Service (except to the extent caused by Giraffe360’s negligence).
9. CHANGES TO THE SERVICE FEATURES
9.1 If the Client wishes to make a change to the Giraffe360 Service, it shall submit details of the requested change in writing to Giraffe360 (a “Change Request”).
9.2 Following receipt of a change request, Giraffe360 shall, within a reasonable time, provide the Client with a written estimate of:
(a) the time required to implement the change;
(b) the impact the proposed changes would have on the Fees, and any other additional costs to be paid by the Client in order to implement the change;
(c) any other material impact of the requested change to the Giraffe360 Service or the terms of the Agreement,
(the “Change Plan”).
9.3 The Client shall notify Giraffe360 within two (2) weeks of receiving the Change Plan whether it wishes to proceed with the changes set out in the Change Request in accordance with the Change Plan.
9.4 Subject to clause 19., Giraffe360 shall not make any changes to the Giraffe360 Service unless it receives confirmation from the Client in accordance with clause 9.3.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Except as expressly set out in the Agreement, Giraffe360 does not grant to the Client any rights to or licenses in respect of the Giraffe360 Service.
10.2 The parties agree that all rights in and to the Giraffe360 Content shall, on creation of the rights, vest in Giraffe360. To the extent that any rights in and to the Giraffe360 Content vest in the Client by operation of law, the Client hereby assigns to Giraffe360, by way of future assignment, all such rights to the Giraffe360 Content absolutely and with full title guarantee.
10.3 Giraffe360 grants to the Client a royalty-free, perpetual, non-exclusive, transferable, sublicensable licence to copy, reproduce, adapt, make derivative works from and distribute the Giraffe360 Content created in connection with the Client’s use of the Giraffe360 Service.
10.4 Save as set out in the Agreement, the Client will not, when using the Giraffe360 Service:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Giraffe360 Service in any form or media or by any means;
(b) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Giraffe360 Service;
(c) access all or any part of the Giraffe360 Service in order to build a product or service which competes with the Giraffe360 Service, or use or attempt to use the Giraffe360 Service to directly compete with Giraffe360; or
(d) erase or remove any proprietary or intellectual property notice contained in the Giraffe360 Service.
10.5 Giraffe360 may use the Client’s name, logo, and related trade marks in any of Giraffe360’s publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Client uses the Giraffe360 Service and alongside any testimonials that the Client has agreed to give. The Client grants Giraffe360 such rights as are necessary to use it name, logo, related trade marks and testimonials for the purpose of this clause 10.5.
10.6 The Client agrees to provide regular feedback to Giraffe360 in relation to its use of the Giraffe360 Service. By submitting feedback, the Client acknowledges that Giraffe360 may use and allow others to use this feedback in the Giraffe360 Service or otherwise without any restriction and without payment of any kind to the Client.
11. DATA PROTECTION
11.1 The Client shall ensure that the Captured Assets do not contain any Prohibited Personal Information.
11.2 Without prejudice to clause 11.1 the Client:
(a) must notify Giraffe360 if the Giraffe360 Content contains any Prohibited Personal Information that is not blurred or otherwise obfuscated or rendered illegible; and
(b) shall ensure that it does not distribute or otherwise make publicly available any Giraffe360 Content containing Prohibited Personal Information unless that Prohibited Personal Information is blurred or otherwise obfuscated or rendered illegible.
11.3 To the extent that Giraffe360 processes any personal data on behalf of the Client as a processor or subprocessor as a result of hosting the Client Data or otherwise as a result of the Client’s use of the Giraffe360 Service, it shall do so in accordance with the data processing addendum in Schedule 1 (the “DPA”).
11.4 For the purpose of this clause 11. the terms “controller”, “processor”, “data subject”, “personal data”, and “process” shall have the same meaning as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
12 CONFIDENTIAL INFORMATION
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include 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;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.
12.2 Each party shall hold the other party’s Confidential Information in confidence and, unless required by law, shall not make the other party’s Confidential Information available for use for any purpose other than as needed to perform or enforce the terms of the Agreement.
12.3 Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
12.4 Each party shall take a backup of its own Confidential Information and shall not be responsible to the other party for any loss, destruction, alteration, or disclosure of Confidential Information.
13. SECURITY DEPOSIT
13.1 Where the Client and Giraffe360 agree, in the Order Form, that the Client shall pay a Security Deposit to Giraffe360:
(a) the Client shall pay the Security Deposit promptly following the date on which the Client signs the Order Form and agrees to these Terms of Service;
(b) the Security Deposit is a deposit against any loss of or damage caused to the Camera Units while in the Client’s possession;
(c) if the Client causes any loss or damage to the Camera Units (in whole or in part), other than reasonable wear and tear, Giraffe360 shall be entitled to apply the Security Deposit against any such loss or damage;
(d) the Client shall pay to Giraffe360 any sums deducted from the Security Deposit within ten (10) days of a demand for the same;
(e) subject to the return of the Camera Unit(s) to which the Security Deposit relates, and any amounts that Giraffe360 may deduct from the Security Deposit in accordance with clauses 13.(b) and 13.(d), Giraffe360 shall refund the Security Deposit (or balance thereof) within ten (10) Business Days of the termination or expiry of the Agreement.
14. FEES AND PAYMENT
14.1 The Client will pay Fees as set out in the Order Form.
14.2 Save as otherwise agreed in writing between the parties, Giraffe360 shall submit to the Client an invoice:
(a) in respect of each Subscription:
(i) promptly following the date on which the Client signs the Order Form and agrees to these Terms of Service, in respect of the Prepayment Fees together with the Delivery Charges and any Set-up Fees and, if applicable, Additional Services Fees;
(ii) promptly on or around the Delivery Date, in respect of the Subscription Fees due for the First Billing Period, together with Additional Services Fees as applicable, less Prepayment Fees paid by the Client upon signing the Order Form;
(iii) thereafter, each Billing Period in respect of the Subscription Fees due for the following Billing Period, together with Additional Services Fees as applicable;
(b) in respect of any Data Fees and Overage Fees due in the First Billing Period or subsequent Billing Periods, at the end of the First Billing Period or such subsequent Billing Period; and
(c) in respect of the CMS Access Fee due for the Client’s continued use of the Content Management System following termination of all Subscriptions, on the first day of the First Billing Period and each subsequent Billing Period during the remainder of the CMS Access Period.
14.3 Giraffe360 shall calculate any Overage Fees due in the First Billing Period or subsequent Billing Periods based on its reasonable projection of the number of Projects that the Client will have during the relevant Overage Charging Period. At the end of each Overage Charging Period, Giraffe360 shall either charge or refund (as applicable) the Client the difference between the Overage Fees paid and the Overage Fees due for that Overage Charging Period. Any refund issued under this clause 14.3 may be in the form of a credit note applied by Giraffe360 against any other Fees due to Giraffe360 at the end of the relevant Billing Period.
14.4 The Client shall pay all invoices within the Invoice Due Period following the date of the relevant invoice. If Giraffe360 has not received payment in full within the Invoice Due Period following the date of the relevant invoice, and without prejudice to any other rights and remedies available to Giraffe360:
(a) Giraffe360 may, without liability to the Client, suspend or temporarily disable all or part of the Client’s access to or use of the Giraffe360 Service and Giraffe360 shall be under no obligation to provide any access to the Giraffe360 Service while the relevant sum remains unpaid;
(b) interest shall accrue on such due amounts at an annual rate equal to four per cent (4%) over the then current Bank of England base rate at the due date for payment of the relevant Fees, commencing on the due date for payment and continuing until the Fees have been paid in full, whether before or after judgment; and
(c) the Client shall reimburse Giraffe360 for all reasonable costs and expenses (including reasonable lawyers’ fees) incurred by Giraffe360 in collecting any overdue amounts.
14.5 All amounts and Fees stated or referred to in the Agreement:
(a) are payable in the currency specified in the Order Form; and
(b) are exclusive of VAT unless otherwise expressly stated, which shall be paid at the same time as payment of the Fees.
14.6 The Client shall be responsible for the collection, remittance, and payment of any and all taxes, charges, levies, assessments, and other fees of any kind imposed by governmental or other authority in respect of its use of the Giraffe360 Service, including (where applicable) payment of any customs fees or duties related to the importation of Camera Units.
15. AVAILABILITY AND SUPPORT
15.1 Giraffe360 will use commercially reasonable endeavours to:
(a) make the Giraffe360 Service available with an uptime rate of 98%;
(b) process Capture Assets into Giraffe360 Content within seventy-two (72) hours of such Capture Assets being uploaded (and merged, if applicable) to the Content Management Service, except for planned maintenance for which twenty four (24) hours’ notice will be given or unscheduled maintenance during normal business hours (UK time) or otherwise, for which Giraffe360 will use reasonable endeavours to give the Client advance notice.
15.2 Giraffe360 will use reasonable endeavours to provide a level of support and advice on the use of the Giraffe360 Service that is appropriate to the nature of any issues requiring support or advice during normal working hours (UK).
15.3 The Client shall provide all support reasonably required by Giraffe360 to perform its obligations under this clause 15., including providing reasonably detailed descriptions of issues and updates on the performance of the Giraffe360 Service.
16. SUSPENSION AND TERMINATION
16.1 Without prejudice to any other rights or remedies available to Giraffe360, if the Client fails to pay any sum due to Giraffe360 and such sum remains outstanding for a further thirty (30) days following notice requiring such sum to be paid, Giraffe360 may immediately terminate the Agreement on giving notice to the Client, without liability for Giraffe360 to the Client.
16.2 Without prejudice to any other rights and remedies available to Giraffe360, Giraffe360 may terminate the Agreement by notice with immediate effect, or such notice as Giraffe360 may in its sole discretion elect to give, if the Client:
(a) infringes Giraffe360’s intellectual property rights in the Giraffe360 Service;
(b) is in breach of clauses 10.4 and 12.;
(c) is in breach of any applicable law.
16.3 Without prejudice to any other rights and remedies available to Giraffe360, Giraffe360 may immediately suspend any Client Account, and the Client’s right to access and use the Giraffe360 Service without giving prior notice to the Client, if:
(a) the Client is in material or persistent breach of any of the terms of the Agreement;
(b) in Giraffe360’s reasonable determination, the Client is suspected of being in material breach of any of the terms of the Agreement,
and for the purposes of this clause , the parties acknowledge that any breach of clauses 10.4 and 12. will be a material breach of the Agreement.
16.4 Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:
(a) is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within thirty (30) days after receiving written notice requiring it to remedy the breach; or
(b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
On termination of the Agreement for any reason:
(a) all rights and licenses granted under the Agreement shall immediately terminate and the Client’s right to access and use the Giraffe360 Service will end;
(b) each party shall return to the other party or (at the other party’s request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority).
16.6 Giraffe360 shall permit the Client to download any Client Data (other than any Giraffe360 Content that is not supported or usable outside of the Giraffe360 Service) from the Giraffe360 Service for a period of three (3) days after the expiry or termination of the Agreement. Other than with respect to any Giraffe360 Content contained within the Client Data, Giraffe360 may thereafter:
(a) delete any Client Data at any time;
(b) retain Client Data upon expiry or termination of the Agreement in order to comply with applicable law, or as Giraffe360 may deem necessary to prosecute or defend any legal claim (in which case Giraffe360 may retain Client Data for a reasonable period of time pending resolution of such obligation or issue),in each case subject to the DPA.
16.7 Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.
16.8 Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiry or termination of the Agreement shall survive and continue in full force and effect.
17. LIMITED WARRANTIES
17.1 Giraffe360 warrants that the Camera Units are free from defects in workmanship and materials. Giraffe360 undertakes, at its option, to repair or replace any Camera Unit which is found to be defective as a result of faulty materials or workmanship within the applicable Subscription Period, provided that:
(a) the Client gives Giraffe360 notice of the defect promptly after the Client discovers (or ought to have discovered) the defect;
(b) after receiving notice, Giraffe360 is given a reasonable opportunity of examining the Camera Unit and the Client provides such reasonable assistance to Giraffe360 as Giraffe360 may request to determine the cause of any fault or defect in the Camera Unit, including (where requested by Giraffe360) returning the Camera Unit to Giraffe360;
(c) the defect does not arise as a result of:
(i) a failure by the Client to follow Giraffe360’s oral or written instructions as to the storage, use or maintenance of the Camera Unit or good trade practice;
(ii) improper use of the Camera Unit or use outside its normal application; or
(iii) the Client, or any other person other than Giraffe360, alters or repairs the Camera Unit without Giraffe360’s written consent.
17.2 Giraffe360 undertakes to make the Giraffe360 Service available as set out in clause , provided that the Client:
(a) complies with any directions, manuals or technical documentation provided by Giraffe360 with respect to the use of the Camera Unit and the uploading of Capture Assets to the Content Management Service;
(b) complies with clause 15.3, and the Client’s sole and exclusive remedy, and Giraffe360’s sole liability, with respect to any failure by Giraffe360 to provide the Giraffe360 Service in accordance with clause is for Giraffe360 to use commercially reasonable efforts to repair the affected part of the Giraffe360 Service so that it is available in accordance with clause .
17.3 Other than as set out in clause 17.1, the Giraffe360 Service is provided on an “AS IS” basis and Giraffe360 gives no representations, warranties, conditions or other terms of any kind in respect of the Giraffe360 Service, whether express or implied, including (but not limited to) warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement.
17.4 Except as expressly provided for in the Agreement:
(a) all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
(b) Giraffe360 will not be responsible for any interruptions, delays, failures, or non-availability affecting the Giraffe360 Service or the performance of the Giraffe360 Service which are caused by third party services (including Third Party Sites), errors or bugs in third party software, hardware, or the Internet on which Giraffe360 relies to provide the Giraffe360 Service, or any changes to the Giraffe360 Service made by or on behalf of the Client, and the Client acknowledges that Giraffe360 does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.
18. GIRAFFE360’S LIABILITY
18.1 Subject to clause , Giraffe360 will not be liable to the Client, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the Agreement in conditions that fall into any of the following categories: loss (whether direct or indirect) of profit, goodwill, business, business opportunity, revenue, turnover or reputation; loss (whether direct or indirect) of anticipated saving or wasted expenditure; loss of or damage to data; or any special, indirect or consequential damage or loss, costs or expenses.
18.2 Nothing in the Agreement excludes or limits Giraffe360’s liability for death or personal injury caused by Giraffe360’s negligence, for fraud or fraudulent misrepresentation, or for any indemnities given in the Agreement.
18.3 Subject to clause , Giraffe360’s aggregate liability for all claims arising in any calendar year under the Agreement in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise shall be limited to the Subscription Fees paid or payable by the Client to Giraffe360 in that calendar year.
19. CHANGES TO THE GIRAFFE360 SERVICE
The Client recognises that Giraffe360 is always innovating and finding ways to improve the Giraffe360 Service with new features and services. The Client therefore agrees that the Giraffe360 Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Giraffe360 Service.
20.1 Written communications
Applicable laws may require that some of the information or communications that Giraffe360 sends to the Client should be in writing. When using the Giraffe360 Service, the Client accepts that communication with Giraffe360 will mainly be electronic. Giraffe360 will contact the Client by e-mail or provide the Client with information by posting notices on the Content Management Service. For contractual purposes, the Client agrees to this electronic means of communication and the Client acknowledges that all contracts, notices, information and other communications that Giraffe360 provides to the Client electronically comply with any legal requirement that such communications be in writing.
All notices given by the Client to Giraffe360 must be submitted to email@example.com or at the address below:
20-22 Wenlock Road
London, N1 7GU
Giraffe360 may give notice to the Client at either the e-mail or postal address the Client provides to Giraffe360, or any other way that Giraffe360 deems appropriate. Notice will be deemed received and properly served immediately when posted on the Content Management System or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
20.3 Transfer of any rights and obligations
The Client may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Client’s rights or obligations arising under the Agreement, without Giraffe360’s prior written consent.
20.4 Events outside a party’s control
Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party unless an approved sub-contractor of Giraffe360, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this clause shall excuse the Client from any payment obligation under the Agreement.
20.5 Third party rights
Other than as expressly stated in the Agreement, a person who is not a party to the Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
20.7 Rights and remedies
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.8 Entire agreement
The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
20.9 No partnership or agency
Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of the Agreement shall not be prejudiced.
20.12 Law and jurisdiction
This Agreement shall be governed by, and construed in accordance with, English law, and each party hereby submits to the exclusive jurisdiction of the courts of England.
Data processing Schedule
1.1 This DPA applies as set out in clause 11.3 of the Agreement.
1.2 In the event of a conflict between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.
2.1 Unless otherwise set out below, each capitalised term in this DPA shall have the meaning set out in the Agreement and the following capitalised terms used in this DPA shall be defined as follows:
“Client Personal Data” means any personal data contained in the Client Data, including:
(a) images and information relating to properties photographed by the Client using the Camera Unit
(b) any other personal data that Giraffe360 processes on behalf of the Client or a member of the Client’s Group during the Term in connection with the Client’s use of and access to the Giraffe360 Service;
“Data Protection Laws” means the GDPR, any national implementing or supplementary legislation and any other applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of Client Personal Data;
“European Economic Area” or “EEA” means the Member States of the European Union together with Iceland, Norway, and Liechtenstein;
“GDPR” means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council and, where applicable, the “UK GDPR” as defined in The Data Protection, Privacy and Electronic Communications (Amendment Etc.) (EU Exit) Regulations 2019;
“Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Client Personal Data;
“Subprocessor” means any processor engaged by Giraffe360 who agrees to receive from Giraffe360 Client Personal Data.
2.2 The terms “personal data”, “controller”, “processor”, “data subject”, “process” and “Supervisory Authority” shall have the same meaning as set out in the GDPR.
3. DATA PROCESSING
3.1 Giraffe360 will only process Client Personal Data in accordance with:
(a) the Agreement, to the extent necessary to provide the Giraffe360 Service to the Client; and
(b) the Client’s written instructions,
unless processing is required by European Union, UK or Member State law to which Giraffe360 is subject, in which case Giraffe360 shall, to the extent permitted by applicable law, inform the Client of that legal requirement before processing that Client Personal Data.
3.2 The Agreement (subject to any changes to the Giraffe360 Service) and this DPA shall be the Client’s complete and final instructions to Giraffe360 in relation to the processing of Client Personal Data.
3.3 Processing outside the scope of this DPA or the Agreement will require prior written agreement between the Client and Giraffe360 on additional instructions for processing.
3.4 The Client shall provide all applicable notices to data subjects required under applicable Data Protection Laws for the lawful processing of Client Personal Data by Giraffe360 in accordance with the Agreement.
3.5 The Client will obtain any consents required under applicable Data Protection Laws for the lawful processing of Client Personal Data by Giraffe360 in accordance with the Agreement.
4.1 The Client agrees that Giraffe360 may use Subprocessors including Amazon Web Services EMEA SARL and Intercom R&D Unlimited Company (and members of its Group) to process Client Personal Data, provided it enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regard to their processing of Client Personal Data as are imposed on Giraffe360 under this DPA.
4.2 Giraffe360 shall provide the Client with 15 days’ notice of any proposed changes to the Subprocessors it uses to process Client Personal Data (including any addition or replacement of any Subprocessors). If the Client (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Agreement, the Client may request that Giraffe360 moves the Client Personal Data to another Subprocessor and Giraffe360 shall, within a reasonable time following receipt of such request, use all reasonable endeavours to ensure that the Subprocessor does not process any of the Client Personal Data.
4.3 Giraffe360 shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the Client for the acts and omissions of any Subprocessor as if they were the acts and omissions of Giraffe360.
5. INTERNATIONAL TRANSFERS
5.1 Giraffe360 shall not transfer the Client Personal Data to a recipient in a country or territory outside the EEA or the UK unless:
(a) the recipient, or the country or territory in which it processes or accesses the Client Personal Data, ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of Client Personal Data as determined by the European Commission; or
(b) the transfer is based on the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593, or any subsequent version thereof released by the European Commission (which will automatically apply), or another legally recognised transfer method.
6. DATA SECURITY, AUDITS AND SECURITY NOTIFICATIONS
6.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Giraffe360 shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including (where appropriate) any measures listed in Article 32(1) of the GDPR.
6.2 The Client may, upon reasonable notice and at reasonable times, audit (either by itself or using independent third party auditors) Giraffe360’s compliance with the security measures set out in this DPA, including by conducting audits of Giraffe360’s data processing facilities. Giraffe360 shall assist with, and contribute to any audits conducted in accordance with this paragraph 6.2, provided that such audits are not carried out more than once a year.
6.3 Upon the Client’s request, Giraffe360 shall make available all information reasonably necessary to demonstrate compliance with this DPA.
6.4 Where required under Article 28(3)(h) of the GDPR, Giraffe360 shall immediately notify the Client in the event that Giraffe360 believes the Client’s instructions conflict with the requirements of the GDPR or other EU or Member State laws.
6.5 If Giraffe360 or any Subprocessor becomes aware of a Security Incident, Giraffe360 will:
(a) notify the Client of the Security Incident promptly,
(b) investigate the Security Incident and provide such reasonable assistance to the Client (and any law enforcement or regulatory official) as required to investigate the Security Incident; and
(c) take steps to remedy any non-compliance with this DPA.
6.6 Giraffe360 shall treat the Client Personal Data as the Client’s Confidential Information, and shall ensure that any employees or other personnel that have access to the Client Personal Data have agreed in writing to protect the confidentiality and security of the Client Personal Data and do not process such Client Personal Data other than in accordance with this DPA.
7/ ACCESS REQUESTS AND DATA SUBJECT RIGHTS
7.1 Save as required (or where prohibited) under applicable law, Giraffe360 shall notify the Client of any request received by Giraffe360 from a data subject, whether directly or through a Subprocessor, in respect of their personal data included in the Client Personal Data, and shall not respond to the data subject.
7.2 Giraffe360 shall provide the Client with the ability to correct, delete, block, access or copy the Client Personal Data in accordance with the functionality of the Giraffe360 Service.
7.3 Giraffe360 shall notify the Client of any request for the disclosure of Client Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.
8.1 Where applicable, taking into account the nature of the processing, and to the extent required under applicable Data Protection Laws, Giraffe360 shall:
(a) use all reasonable endeavours to assist Client by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to requests for exercising data subject rights laid down in the GDPR; and
(b) provide reasonable assistance to the Client with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the Client, in each case solely in relation to processing of Client Personal Data and taking into account the information available to Giraffe360.
9. DURATION AND TERMINATION
9.1 Subject to paragraph 9.2 below, Giraffe360 shall, within fourteen (14) days of the date of termination of the Agreement:
(a) if requested to do so by the Client, return a complete copy of all Client Personal Data by secure file transfer in such a format as notified by Client to Giraffe360; and
(b) delete and use all reasonable efforts to procure the deletion of all other copies of Client Personal Data processed by Giraffe360 or any Subprocessors.
9.2 Giraffe360 and its Subprocessors may retain Client Personal Data to the extent required by applicable law, or as Giraffe360 may deem necessary to prosecute or defend any legal claim, provided that such Client Personal Data is retained only to the extent and for such period as required by applicable laws or pending resolution of any issue, and always provided that Giraffe360 shall ensure the confidentiality of all such Client Personal Data.