Brand Guardian - Terms of Service

Terms of Service

Last updated: Jan 27, 2025

These Brand Guardian Terms of Service govern Customer's use of the Services described in the applicable Order Form. The https://app.brandguardian.ai website and interconnected Brand Guardian application (“The Platform”), is operated and controlled by Wunderman Thompson Commerce (UK) Ltd, trading as VML Enterprise Solutions (‘VML’), on behalf of its Customers.

INTERPRETATION
1. In this Agreement, capitalised words not defined in the Order Form shall, unless the context requires otherwise, have the following meanings:
  "Access Rights" means the scope of access rights to the Software and the extent to which an Authorised User may use the Services as agreed in writing by VML and the Customer;
  "Additional Terms" means additional terms that may apply in relation to specific features of the Services and/or Software as notified to the Customer and/or Authorised Users from time to time;
  "Affiliate" means any present or future entity controlling, controlled by, or under common control with, a party;
  "Agreement" means (a) these Terms of Service, including its annexes; (b) the applicable Order Form; and (c) any data protection terms referenced in the Order Form or these Terms of Service;
  "Applicable Law" means all applicable legislation, rules, regulations or decisions which now have, or which have at the relevant time had, the force of law in an applicable jurisdiction and relate to the provision or receipt of the Services;
  "Authorised User" means a person designated by the Customer and authorised to access the service on behalf of the Customer, for whom a user account is created;
  "Base Software" means the version of third party software, from vendors such as Adobe or Sitecore, a connector is built to integrate with;
  "Business Day" means a working day in United Kingdom, Monday through Friday, excluding weekends and any bank holidays;
  "Commencement Date" means the commencement date of the Agreement as set out in the Order Form;
  "Confidential Information" means any information disclosed to either party by the other (or otherwise learnt or acquired by the other party in connection with this Agreement), either directly or indirectly, in writing, electronically, orally or otherwise which, from its nature, content or the circumstances in which it is disclosed or provided, might reasonably be supposed to be confidential or proprietary (including for clarity any disclosed information which is designated as "Confidential," "Proprietary" or some similar designation). Confidential Information shall in respect of both parties include all technical data, trade secrets and know-how, including, but not limited to, data research, products, services, suppliers, software, developments, inventions, processes, formulas, technology, models, algorithms, designs, drawings, hardware configuration information, marketing, licenses, prices, budgets and other business information. Confidential Information shall in addition in respect of VML include all computer software (both object and source codes) forming part of the Services and related Documentation or specifications; (ii) all techniques, concepts, methods, processes and designs embodied in or relating to the Services; (iii) all application program interfaces, system infrastructure, system security and system architecture design or relating to the Services (in each case whether or not designated as "Confidential", "Proprietary" or some similar designation);
  "Connector" means an add-on to a third party application or software, which allows the Authorised User to connect with the Services and access the Services directly from within such third party application or software;
  "Content" means any data, including text, audio and/or video files, electronic documents or images, or other material uploaded and/or imported to the Services by the Customer and/or Authorised Users on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services;
  "Documentation" means the standard technical and user documentation supplied by VML in conjunction with the Services. These will take the form of PDF document format and be emailed to the client;
  "Fees" means the amounts payable by the Customer as stated in the Order Form;
  "Force Majeure Event" means (a) fire, flood, earthquake, unusually severe weather or elements of nature or acts of God (b) acts of war (declared or undeclared), embargo, riot, acts of terrorism, act of a public enemy, civil disorder, rebellion, revolution; any internet or other network-related performance or availability issue within the Software or any event affecting a VML Service Provider in connection with the provision of the Services; or other causes beyond a party's control (which, for the avoidance of doubt, shall not include any industrial dispute (which shall include a strike, lock- out, or labour related action);
  "Implementation Services" means the services provided by VML to the Customer in order to set up, configure and/or extend the functionality of the Software for Customer's use as set out in the Order Form, as applicable;
  "Initial Term" means the initial term for the provision of the Services as specified in the Order Form;
  "Intellectual Property Rights" means copyright and related rights, trademarks, service marks, trade names and domain names, rights under licences, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, patents, rights to inventions, rights in designs, rights in computer software, models, algorithms, database rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and applications, renewals or extensions of, 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;
  "Market" means a specific business unit or market of the Customer to which the Services will be restricted, as may be specified in the Order Form;
  "Normal Business Hours" means 09.00 to 17.00 local time in United Kingdom, each Business Day;
  "Order Form" means a document setting out the commercial terms for the provision of the Services signed by VML and the Customer;
  "Registration Details" means, where relevant, the unique username(s) and password(s) provided by VML to a Customer and/or directly to an Authorised User for the purpose of providing access to the Services and the Software (or relevant parts thereof);
  "Renewal Term" means any renewal term as specified in the Order Form;
  "Rule" means the functionality of the Services, allowing the Authorised Users to analyse certain aspects of the Content;
  "Services" means the services provided by VML to the Customer, including the Software, described in the Order Form and these Terms of Service;
  "Software" means the online Brand Guardian software application provided by VML as part of the Services, available via the website https://app.brandguardian.ai, or via a Connector, described in the Order Form and these Terms of Service;
  "Support Services Policy" means VML's policy for providing support in relation to the Services as provided to the Customer as agreed in the Order Form;
  "Terms of Service" means the terms and conditions set forth in this document together with all its attachments, as may be amended from time to time;
  "Third Party Tools" means any third party software, service, account, platform or environment used by Customer subject to a license, subscription or service agreement between Customer and such third party;
  "Third Party Updates" means any updates, upgrades, bug or error fixes or corrections, additions, alterations, modifications, enhancements, patches relating to any third party (who is not a VML Service Provider) software with which the Services is intended to operate;
  "Virus" means (i) program code, programming instruction or set of instructions intentionally constructed with the ability to damage, destroy, disable, interfere with or otherwise adversely affect computer programs, data files or operations; or (ii) other code typically designated to be a virus, worm, Trojan horse, time lock or time bomb or anything similar, but for clarity shall not include any VML code or device intended to legitimately interfere with or restrict the operation of the Services and/or Software.
  "VML Service Provider" means a third party providing goods and/or services relating to a part of the Services and/or Software either to VML or directly to the Customer.
ACCEPTANCE AND TERM
1. The submission of an Order Form by the Customer shall amount to the acceptance by the Customer of this Agreement and shall be deemed to be an offer by the Customer to access the Services subject to this Agreement.
2. No Order Form placed by the Customer shall be deemed to be accepted by VML until VML has executed the Order Form or (if earlier) VML commences provision of the Services (including by granting the Customer and/or Authorised Users access to the Software).
3. All Services are supplied subject to the provisions of this Agreement to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under the Order Form, confirmation of order, purchase order, applicable specification or similar document).
4. This Agreement shall commence on the Commencement Date and shall continue for the Initial Term and shall renew automatically for successive Renewal Terms unless either party terminates it in accordance with clause 17 ("Term").
PROVISION OF THE SERVICES
1. VML shall perform the Implementation Services in accordance with the Order Form and these Terms of Service.
2. Subject to completion of the Implementation Services pursuant to clause 3.1 and in consideration of the payment by the Customer of the Fees, VML shall provide the Services and grant the Customer a licence to use the Software in accordance with clause 3.3.
3. VML grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable licence to itself access and use the Services and the Documentation and to allow its Authorised Users to access and use the Services and the Documentation for the duration of the Term for its internal business purposes, in accordance with the Access Rights and subject to the provisions of this Agreement. The rights granted under this clause 3.1 are granted solely to the Customer and its Authorised Users, unless expressly agreed otherwise in the Order Form.
4. The Customer acknowledges and agrees that it is licensed to use the Services and the Software only in accordance with this Agreement, the Additional Terms and strictly for its designated purpose. The Customer acknowledges and agrees that it shall not be entitled to sublicense the use of or access to the Software or Services to any third parties. All rights in and to the Services, the Software and the Documentation not expressly granted to the Customer pursuant to this Agreement are reserved by VML.
5. In the event that any part of the Services is provided by any VML Service Providers, which may include hosting providers, the Customer's use of such affected Services may be subject to Additional Terms relating to such VML Service Provider. VML is not responsible to the Customer for any errors, defects or unavailability of such third party services.
VML'S OBLIGATIONS
1. VML shall:
  1. comply with all Applicable Laws with respect to its activities under this Agreement;
  2. once the Implementation Services have been completed pursuant to clause 3.1, provide the Services substantially in accordance with the Order Form and Documentation and with reasonable skill and care, subject to clause 15;
  3. use personnel who are suitably skilled and experienced to perform the tasks assigned to them; and
  4. use reasonable endeavours to co-operate with any third party service provider working with or for the Customer from time to time as the Customer may reasonably request.
2. The obligation in clause 4.1.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to VML's instructions, or modification or alteration of the Services by any party other than VML or VML's duly authorised contractors or agents. If the Services do not conform with the undertaking under clause 4.1.1, VML will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 4.1.1.
3. Notwithstanding clauses 4.1 and 4.2, VML is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4. This Agreement shall not prevent VML from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
5. VML warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
CUSTOMER'S OBLIGATIONS
1. The Customer shall:
  1. comply with all Applicable Laws with respect to its activities under this Agreement;
  2. carry out all Customer responsibilities set out in the Order Form and/or these Terms of Service in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, VML may adjust any agreed timetable, delivery schedule and /or cost as reasonably necessary;
  3. ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms of Service, in particular the Access Rights, and shall be responsible for any Authorised User's breach of these Terms of Service;
  4. obtain and shall maintain all necessary licences, consents, and permissions necessary for VML, its contractors and agents to perform their obligations under the Agreement, including without limitation provide the Services;
  5. be responsible for procuring and maintaining all arrangements as may be necessary to enable it and Authorised Users to access the Services (including provision of hardware, software and telecommunications) and the Customer shall arrange and provide this at its sole cost and expense. The Customer acknowledges and agrees that the use of the Services and/or Software and their performance may be affected by the hardware, software and telecommunications the Customer uses and the quality of the Content; and
  6. comply with all other obligations set out in the Order Form.
2. The Customer shall not: (i) sub-licence, transfer, loan, copy, modify, adapt, merge, translate, reverse engineer, decompile or create derivative works based on the whole or any part of the Services or the Documentation or reproduce or deal in the Services or the Documentation or any part thereof in any way; (ii) provide or otherwise make the Services or the Documentation available in whole or in part to any third parties (including contractors or agencies working on the Customer's behalf), except with VML prior written consent and the third party entering into any confidentiality or licence agreement provided by VML; or (iii) remove VML trade mark, copyright notice or any other proprietary notice from the Services or the Documentation.
3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property; and VML reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to the Services in the event of a breach of the provisions of this clause 5.3.
4. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify VML.
5. The Customer shall be responsible for testing any relevant Third Party Updates to its satisfaction prior to the Customer installing any Third Party Updates to any third party software in a live environment, in order to ensure that such Third Party Updates meet the Customer's own requirements without causing any issues with the Customer's use of the Software.
6. The Customer will supply VML personnel with such information, resources, and assistance as VML may reasonably request and/or agreed in the relevant Order Form in order to provide the Implementation Services.
7. The Customer acknowledges and agrees that VML's ability to successfully perform the Implementation Services in a timely manner is contingent upon its timely receipt from Customer of such information, resources and assistance and VML will have no liability for deficiencies or delays in the Services resulting from the acts or omissions of Customer, its agents, or employees or performance of the Services in accordance with Customer's instructions.
AUTHORISED USER MANAGEMENT
1. The Customer and VML shall agree a list of Authorised Users to be issued with Registration Details and the nature of the Access Rights for each Authorised User. This may be amended by written agreement of the parties.
2. The Customer agrees that:
  1. it shall be responsible for all acts and omissions of its Authorised Users and shall ensure they comply with all terms of this Agreement, the Access Rights, the Documentation and the Additional Terms, if applicable;
  2. it shall be responsible for all Fees incurred by Authorised Users in their use of the Services;
  3. it shall immediately notify VML in writing if it becomes aware of any unauthorised disclosure of any Registration Details including by an Authorised User;
  4. it shall maintain a written, up to date list of current Authorised Users and provide such list to VML within 5 Business Days of VML's written request at any time;
  5. it shall keep any and all Registration Details provided to it by VML confidential such that they are not shared with any person or entity (other than the relevant Authorised User) and acknowledges and agrees that it shall take all reasonable precautions to prevent unauthorised or fraudulent use of them and shall be responsible for and liable in respect of all activity that occurs in relation to the Software using its Registration Details; and
  6. it shall immediately notify VML in writing if an Authorised User no longer requires or is no longer entitled to access to the Software. This shall include but not be limited to circumstances where an Authorised User ceases to be employed or contracted by the Customer, as applicable.
3. The Customer shall ensure that all individuals that are nominated to be Authorised Users have been made aware that they are required to use the Software responsibly, for its designated purpose only and in accordance with this Agreement, all applicable terms and conditions of use featured on the Software from time to time (or as otherwise provided to the Customer from time to time) and Applicable Laws. The Customer shall enforce such restrictions and acknowledges that it is responsible and liable for ensuring that Authorised Users act in accordance with such obligations.
4. During the Term the Customer may request that additional Authorised Users be given access to the Services. This request may be granted by VML in its sole discretion (acting reasonably) and is subject to the payment of the relevant Fees as set out in the Order Form. To the extent that the Customer requires additional Authorised Users be given access to the Services, it shall provide VML with a completed Order Form for such additional Authorised Users, and the approval of such Order Form shall be in accordance with the provisions of clause 2 above.
AVAILABILITY, SUPPORT AND MAINTENANCE
1. VML shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
  1. planned maintenance carried out during the maintenance window of 18.00 and 06.00 local time in United Kingdom; and
  2. unscheduled maintenance performed outside Normal Business Hours, provided that VML has used reasonable endeavours to give the Customer at least 8 Normal Business Hours' notice in advance.
2. VML will, as part of the Services, provide the Customer with VML's standard customer support services during Normal Business Hours in accordance with VML's Support Services Policy in effect at the time that the Services are provided, or as otherwise specified in the Order Form. VML may amend the Support Services Policy in its sole and absolute discretion from time to time.
3. In the event that Customer or an Authorised User detects any bugs, errors or defects in the Service, the Customer and/or Authorised Users may notify VML via http://support.brandguardian.ai/. VML will endeavour to respond to such complaint within 5 Business Days, and will inform the Customer of the undertaken or planned actions to resolve such bug, error or defect. Notwithstanding the foregoing, VML does not guarantee that any bugs, errors or defects in the Services will be corrected.
REPORTING
1. VML shall provide reports on a monthly basis detailing product usage by Market and Rules.
2. VML may make recommendation based on historical usage to move tiers.
3. VML shall inform Customer where 10% of allowance remains and again when allowance has been full utilised. Customer shall advise if they wish to move tiers, purchase one off top up or wait to start of next month before using the product again.
TECHNICAL REQUIREMENTS
1. The Services can be accessed:
  1. using a web browser via https://app.brandguardian.ai, subject to clause 8.2 below; or
  2. using Connectors specified in the Order Form, subject to clauses 8.3 and 8.4 below.
2. The Services can be accessed using the following browser types: Google Chrome, Mozilla Firefox, Microsoft Edge and VML supports compatibility with the last three versions of each browser type.
3. The Connectors and their upgraded versions are made available to the Customer by means specified in the Order Form. The use of Connectors requires access to the relevant third party application or software for which the Connectors are designed ("Base Software"), which access shall be procured by the Customer. VML provides Connectors only for Base Software and compatible versions of such software specified in the Order Form. Any changes (including manual or automatic updates) to the Base Software may result in the Connector being incompatible with such amended and/or updated version of the Base Software. The Customer shall notify VML in writing prior to introducing any changes or updates to the Base Software.
4. In the event that a Connector becomes incompatible with the Base Software, the Customer shall promptly notify VML of this fact in writing, and VML will use its best endeavours to reestablish compatibility with the updated Base Software within 14 (fourteen) days from receiving written notice.
5. For the avoidance of doubt, the Services and Fees do not include access to any third party software. Customer will give VML personnel such access to its networks, systems, software, platforms, Third Party Tools and its (Customer) personnel as is reasonably necessary for VML to provide the Services to Customer. Customer warrants and undertakes that it has the necessary rights and licenses to allow VML to access and use any Third Party Tools to which it grants VML access for purposes of providing the Services.
FEES AND payment
1. The Customer shall pay VML the Fees in accordance with this Agreement and the payment terms set out in the Order Form.
2. All Fees are stated exclusive of VAT (or equivalent local taxes) which is additional to the Fees and shall be included and itemised separately on invoices, where appropriate, at the rate prevailing from time to time.
3. VML shall issue invoices relating to Fees in accordance with the invoicing schedule detailed in the Order Form and the Customer shall, within 30 (thirty) days of the date of any invoice, pay VML as per the payment instructions in such invoice in full without any deduction or withholding on account of taxes or other charges. If the Customer is required by law to make a deduction or withholding the Customer must pay such additional amount as may be necessary to ensure that VML receives payment of the full amount of such invoice.
4. If the Customer should fail to pay any undisputed Fees in full on or before the due date for payment, VML may without prejudice to any of its other rights (i) charge the Customer interest on the outstanding amount at the rate of 4 percent per annum above the prevailing base rate of the Bank of England, on a daily basis from such due date until the date the obligation to make payment is discharged, whether before or after judgment, and compounded monthly; and/or (ii) immediately suspend access to the Software and the Services without further notice.
5. If the Customer in good faith disagrees with or disputes any amount, the Customer shall within 30 (thirty) days of the invoice ("Dispute Period") provide VML with a detailed written explanation of the nature of the dispute, which will set out the amounts withheld and the reasons for withholding such amounts. For clarity, the Customer remains obligated to pay any amounts that are not under reasonable and good faith dispute.
6. The Parties shall seek to resolve the dispute referred to in clause 9.5 within ten (10) Business Days of VML's receipt of the dispute notice from the Customer. If the parties are unable to resolve the matter within that time period, the matter will be escalated to VML's chief operating officer and the Customer's chief executive officer (or equivalent). Nothing in this clause 9.6 shall prejudice either party's rights to seek recourse through the courts of England which will have exclusive jurisdiction in respect of such disputes.
7. VML shall have the right to adjust any Fee by giving the Customer at least 30 (thirty) days written notice in advance of the adjustment coming into effect with such adjustment to automatically take effect at the start of the following Renewal Term.
8. Unless otherwise stated in the Order Form, all Fees are payable in GBP (Pounds Sterling of the United Kingdom).
9. Each invoice shall be sent to the applicable address and Customer details as set out in the Order Form.
10. Unless otherwise specified in the Order Form, Customer agrees to reimburse VML for pre-approved travel, lodging and meal expenses incurred in the course of providing Implementation Services at any location other than VML's site.
INTELLECTUAL PROPERTY RIGHTS
1. The Customer acknowledges and agrees that any and all Intellectual Property Rights in VML's Confidential Information, the Documentation, Services and/or Software, including any modifications, additions, improvements and derivative works of the foregoing, belong to VML, its Affiliates and/or its licensors and that any goodwill or other right, title or interest arising in relation to or from use of VML's Confidential Information, the Documentation, Services and/or Software accrues solely for the benefit of VML.
2. The Customer and any of its employees, agents or subcontractors do not by virtue of this Agreement obtain any proprietary rights in respect of VML's Confidential Information, the Documentation, Services and/or Software. To the extent the Customer (or any of its Authorised Users, employees, agents or subcontractors) holds or obtains any such rights, the Customer hereby absolutely and irrevocably assigns (and to the extent applicable, shall procure that its Authorised Users, employees, agents and subcontractors shall absolutely and irrevocably assign) to VML, as legal and beneficial owner and with full title guarantee, by way of present assignment of all present and future Intellectual Property Rights in or arising in relation to VML's Confidential Information, the Documentation, Services and/or Software and any and all derivative works of such materials whether in existence now or created in the future, throughout the world for the full duration of such Intellectual Property Rights and any renewals or extensions thereof together with the right to sue for damages for past infringement. If requested by VML, Customer hereby agrees to execute a written agreement to transfer such rights to VML and any other documents necessary for VML to ensure that it establishes, preserves, perfects and is able to enforce its Intellectual Property Rights in VML's Confidential Information, the Documentation, Services and/or Software. The Customer agrees not to assert at any time and otherwise waives all moral rights that VML may have in VML's Confidential Information, the Documentation, Services and/or Software and the Customer hereby assigns to VML all moral rights therein.
3. The Customer and/or Authorised Users retain all rights and ownership of the Content. VML does not claim any ownership, or other rights to the Content, except as expressly provided in this clause 10.3. By uploading the Content, the Customer grants VML free of charge a nonexclusive, worldwide, royalty-free, sublicensable and transferrable licence to use, store, reproduce, distribute, modify and translate the Content solely for the purposes of operating the Software and providing the Services. In particular, by uploading the Content, the Customer agrees that the uploaded Content can be collected and stored by the Software and used by VML in aggregated and anonymised form to develop new functionalities and/or improve performance of the of Services.
4. The Customer agrees it is responsible for any Content the Customer and/or any of its Authorised Users upload to the Software and the Customer shall ensure that any Content it or any third party on its behalf provides is and remains in the reasonable opinion of VML truthful, correct, accurate and not misleading, offensive, defamatory or in breach of any third party rights (including any third party Intellectual Property Rights). By uploading Content to the Services, the Customer agrees that it has all necessary licences and permissions to use and upload the Content and to grant the licences and permissions set forth under this clause 10.
5. The Customer hereby acknowledges that VML may use any knowledge or knowhow gained from working with the Customer under this Agreement (including ideas provided by the Customer) including to enhance, update, upgrade, correct, add to or amend the Services.
6. The Customer may submit to VML feedback, ideas, suggestions or proposals regarding the Services. In such case the Customer grants VML free of charge, a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable licence to use such feedback, ideas, suggestions or proposals in order to develop and improve the Services.
CONFIDENTIAL INFORMATION
1. Neither party shall use, copy, adapt, alter, disclose or part with possession of any Confidential Information which comes into its possession or control directly or indirectly as a result of this Agreement except as strictly necessary to perform its obligations or exercise its rights under this Agreement provided that this provision shall not apply to Confidential Information:
  1. which the receiving party is able to prove was already in its possession at the date it was received or obtained or which the receiving party obtains from some other person with good legal title to the same or which is independently developed by or for the receiving party; or
  2. which comes into the public domain otherwise than through the default or negligence of the receiving party; or
  3. which the receiving party is required to disclose by Applicable Law or applicable regulatory authority (to the extent of the required disclosure only).
2. Each party acknowledges and agrees that financial remedies will be insufficient to compensate the other for any infringement of this clause 11 and each party acknowledges that the use or disclosure of any Confidential Information of the other party in a manner inconsistent with this Agreement may cause the other party irreparable damage. Accordingly, each party shall have the right to seek injunctive relief to prevent such unauthorised use or disclosure, and to seek such damages as are occasioned by such unauthorised use or disclosure.
3. In all cases each party shall inform the other party immediately upon becoming aware or suspecting that an unauthorised person has become aware of Confidential Information, or that an unauthorised disclosure of Confidential Information has been made.
4. Each party shall ensure that its personnel, sub- contractors and agents who have, or may have, access to the Confidential Information (including, in respect of the Customer, its Authorised Users) are bound by an undertaking in substantially the same terms as this clause 11.
5. The provisions of this clause 11 shall continue in force notwithstanding termination or expiry of this Agreement.
6. VML may disclose that the Customer is a client of VML including in any publicity material without the prior consent of the Customer. Subject thereto, neither VML nor the Customer shall without the prior written consent of the other issue any statement or document bearing the other party's name except as required by Applicable Law or regulatory obligation.
INFORMATION SECURITY
1. VML will implement and maintain appropriate security procedures and safeguards which are designed to protect against the theft, destruction, loss, wrongful use or access, disclosure, corruption or alteration of Client Confidential Information in its possession or within its control.
DATA PROTECTION
1. The parties acknowledge that the Services are not intended to be used in connection with any storage, transfer, use or Processing of any Customer Personal Data (as such capitalised terms are defined in the applicable Data Protection Laws, as defined below) ("Unintended Processing"), and that this Agreement does not involve the engagement of VML to undertake any Unintended Processing. In particular, the Customer acknowledges that the Content inputted to the Services by the Customer and/or Authorised Users (or by a third party or VML on the Customer's behalf) should not include Personal Data. Each party shall comply with all of its obligations under the Data Protection Act 2018 or the applicable data protection laws in effect at the time data is processed ("Data Protection Laws") and, if there is Unintended Processing of Personal Data on behalf of the Customer, each party shall comply with its respective obligations as specified under an agreed Data Processing Addendum ("DPA").
2. Without prejudice to the foregoing, to the maximum extent permissible under Applicable Law, VML shall have no liability to the Customer for, and the Customer shall indemnify VML on demand against any and all losses (including any reputational losses and any sanctions imposed by a supervisory authority or other regulator) suffered or incurred by VML as a result of, any Unintended Processing inadvertently carried out by (or on behalf of) VML by virtue of: (a) the provision of the Services to the Customer and the Authorised Users in accordance with this Agreement; (b) the use of the Services and/or user accounts by the same; or (c) the proper performance of VML's obligations under this Agreement.
3. The parties acknowledge and agree that with regard to the Processing of Customer Personal Data, Customer is the Controller, VML is the Processor and that VML may engage Sub-processors (as such capitalised terms are defined in the applicable Data Protection Laws) in accordance with the DPA.
4. The parties acknowledge and agree that where Processing of Customer Personal Data is required to allow Customers Employees “Users” access to the platform, VML will do so as an Independent Controller. Please see our Client Privacy Policy here for further information.
INDEMNITIES
1. Subject to clauses 14 and 15, VML shall indemnify the Customer against all suits, actions, claims, liabilities, damages, losses, costs and expenses, (including reasonable legal fees and court costs) suffered or incurred by the Customer directly arising out of a third party claim that the Software infringes third party copyright, provided that any such claim is brought in the United Kingdom and that the claim has not arisen as a result of: (i) the use or combination of the Services with any software or materials not supplied or authorised (in writing) by VML; (ii) any adjustment, alteration, change or modification to the Services other than by or on behalf of VML; (iii) any third party Intellectual Property Rights or materials incorporated in or used in conjunction with the Services; or (iv) use of the Services in breach of this Agreement.
2. In the event of a claim under clause 13.1 VML shall be entitled at its own expense and option to either:
  1. procure the right for the Customer to continue using the Software;
  2. make such alterations, modifications or adjustments to the Software so that it becomes non-infringing without incurring any material reduction in performance or function of the Software;
  3. replace the Software with a non-infringing substitute provided that such substitute does not entail a material reduction in performance or function; or
  4. terminate this Agreement immediately by providing the Customer with written notice, and refunding the Customer with all prepaid Fees that have not been incurred for Services rendered.
3. Subject to clause 15, the provisions of clauses 13.1 and 13.2 state the sole, exclusive and entire liability of VML, its Affiliates, the VML Service Providers and any of their licensors to the Customer and state the Customer's sole remedies, with respect to any actions or claims referred to in clauses 13.1 and 13.2.
4. Subject to clauses 14 and 15, the Customer shall on demand indemnify and keep fully indemnified VML and its Affiliates against all suits, actions, claims, liabilities, damages, losses, costs and expenses, (including reasonable legal fees and court costs) suffered or incurred by VML arising out of (i) its or their reliance upon, or use of, any data, materials or Intellectual Property Rights provided to VML by Customer for the purpose of providing the Services in accordance with the Agreement; (ii) the Content uploaded by the Customer to the Services; and (iii) a breach by the Customer or its Authorised Users of clauses 5.1 to 5.4 (inclusive).
5. The indemnities given in this Agreement shall be subject to the indemnified party: (i) as soon as reasonably practicable, give written notice of the claim to the indemnifying party, specifying the nature of the claim in reasonable detail; (ii) not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the indemnifying party (such consent not to be unreasonably conditioned, withheld or delayed); (iii) allow the indemnifying party to have complete control of the defence of the claim and all related negotiations. The indemnifying party shall not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the indemnified party (such consent not to be unreasonably conditioned, withheld or delayed); and (iv) take all reasonable steps to minimise and mitigate any Liabilities suffered or incurred as a result of such claim.
DISCLAIMERS
1. This Agreement states the full extent of each party's obligations and liabilities in respect of the subject matter of this Agreement, the Services, the Software and their use. The parties agree that the express provisions of this Agreement are in place of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise (including but not limited to implied undertakings of satisfactory quality, conformity with description and reasonable fitness for purpose), all of which are hereby excluded to the maximum extent permitted by law.
2. Save as expressly set out herein, VML does not warrant (i) that the Customer's or User's use of the Services will be uninterrupted or error-free and/or that the Services and/or the Software will be free from Viruses; or (ii) that the Services, Documentation and/or the information obtained through the Services will meet the Customer's specific requirements.
3. Subject to clause 11.3.3, VML shall not be liable to the Customer under this Agreement or otherwise for any loss or damage arising as a result of or in connection with:
  1. the legality, reliability, integrity, accuracy or quality of any Content;
  2. VML executing specific instructions given by the Customer and/or Users (including automatically via the Software), and does not provide any representation, warranty or indemnity with respect to any claims or losses arising from VML executing the Customer and/or Authorised Users specific instructions;
  3. any delays, delivery failures, or any other loss or damage resulting from the transfer of Content over the internet and communications networks and facilities outside of VML's control;
  4. use or operation of the Software and/or the Services otherwise than in accordance with the Documentation or any reasonable instructions given to the Customer from time to time by VML;
  5. abnormal or incorrect operating conditions (including interruption of or abnormality in the electricity supply);
  6. any act or omission by the Customer or those acting on its behalf (whether accidental or deliberate) or other cause outside the control of VML;
  7. any acts or omissions of any third party related to or arising in connection with this Agreement and/or the Services;
  8. any breach by the Customer of its obligations under this Agreement; and/or
  9. any third party software being connected to or operated with the Software and/or the Services, save where such connection or operation has been or is carried out or expressly authorised and approved by VML.
4. Without limiting the generality of the foregoing provisions under this clause 15, Customer acknowledges that the output produced by the Services and/or Software may be generated by mathematical models trained on a diverse range of data. VML will strive to ensure the quality and reliability of such output, however, there may be limitations or inaccuracies present, given the non-deterministic nature of the models and varying quality of input data. Accordingly, except as expressly provided otherwise, VML does not warrant that the Services and/or Software provided under this Agreement, including any output generated by the Services and/or Software, will be uninterrupted, accurate, free from defects or compliant with Applicable Law.
5. The Services provided hereunder, including recommendations and/or output generated by the Software, should be used by Customer for its internal business purposes only. The Customer shall be solely responsible for its interpretation of the conclusions and/or recommendations contained in the output generated by the Services and/or Software and any actions taken as a result.
LIMITATION OF LIABILITY
1. Neither party excludes or limits its liability for: (i) its fraudulent misrepresentation; (ii) death or personal injury caused by its negligence; (iii) infringement or misuse of VML's Intellectual Property Rights; (iv) a breach of clause 11 by the Customer; (v) any liability to pay any Fees; or (vi) any other liability which cannot be excluded or limited by Applicable Law.
2. Subject to clause 16.1, neither party shall have any liability (whether in contract, negligence, misrepresentation, tort, restitution or otherwise) under or in connection with this Agreement in respect of any: (i) indirect or consequential losses, damages, costs or expenses; (ii) loss of actual or anticipated profits; (iii) loss of contracts, loss of business or loss of opportunity; (iv) loss of use of money; (v) loss of anticipated savings; (vi) loss of revenue or ex gratia payments; (vii) loss of goodwill or reputation; (viii) loss of operation time; or (ix) loss of, damage to or corruption of, data (in each case, except (i), whether such losses are direct, indirect, consequential or otherwise).
3. Subject to clauses 16.1 and 16.2, the total aggregate liability (whether in contract, negligence, tort, restitution or otherwise) of each party arising out of or in connection with any loss or damage suffered by the other party under or in connection with this Agreement shall be limited to the total sums paid by the Customer to VML under this Agreement in the first 12 months of the Term.
4. Each party acknowledges that the other party's Confidential Information and Intellectual Property Rights constitute vital business assets of the other party and agrees that damages may be insufficient to compensate for a breach of the obligations under this Agreement. Therefore, each party shall be entitled without proof of special damage, in addition to any other right or remedy available to it (including an action for damages), to the remedies of injunction, specific performance and other equitable relief for any actual, threatened or potential breach.
TERMINATION
1. Either party may terminate or suspend this Agreement immediately by notice in writing to the other party if: (i) the other party fails to remedy any material breach of this Agreement after having been required in writing to remedy such breach within a period of no less than thirty (30) days; (ii) the other party fails to pay any amount due according to the Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment; or (iii) in any event (where the terminating party is VML) if the Customer is in breach of, or is using the Services contrary to, the terms of this Agreement or is otherwise infringing VML's Intellectual Property Rights.
2. The Agreement shall, unless otherwise terminated as provided in this clause 15, or superseded by an Order Form, continue for the Initial Term and, thereafter, the Agreement shall be automatically renewed for successive Renewal Periods, unless:
  1. either party provides the other party with at least six (6) months' written notice of termination, such notice to expire no earlier than on or after the end of the Initial Term; or
  2. otherwise terminated in accordance with the provisions of these Terms of Service.
3. Upon termination of this Agreement for any reason: (i) all rights and licences granted under these Terms of Service shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation; and (ii) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party.
4. Subject to the provisions of any other agreement between the parties, upon termination of this Agreement and in any event upon request, both parties shall cease all use of the other party's Confidential Information and delete all such Confidential Information from any computer disks, tapes or other material in its possession or under its control or deliver up or destroy all materials and tangible items in its possession or under its control which are derived from, contain or reflect, any such Confidential Information.
5. Termination of this Agreement shall be without prejudice to any accrued rights or remedies of either party. Termination of this Agreement will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
6. Notwithstanding any other provision under this clause 17, VML reserves the right to withdraw and cease provision of the Services for any reason and terminate this Agreement by providing the Customer with at least thirty (30) days' written notice of termination, provided that VML shall refund Customer on a prorated basis any part of the Fees prepaid relating to any part of the Services due to have been performed after the date of termination.
7. Notwithstanding any other remedy herein provided for or available to it, VML may in its sole discretion, either temporarily or permanently, suspend Customer's access to the Services and/or Documentation, should VML have reason to suspect that Customer is in breach of the Agreement, or if payment of any Fees remains outstanding after the due date.
WAIVER AND VARIATION
1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
2. No variation of this Agreement shall be effective unless in writing, signed by each of the parties or by their duly authorised representatives and expressed to be a variation.
ASSIGNMENT AND SUBCONTRACTING
1. VML may assign, or novate its rights and/or obligations under this Agreement (and/or any other document entered into pursuant to or in connection with it) in whole or in part at any time and on more than one occasion to any Affiliate without the consent of the Customer. Any assignment or novation other than to an Affiliate is not permitted except with the express prior written consent of Customer.
2. The Customer shall not assign, novate or otherwise deal with any right or obligation arising under or in connection with this Agreement (and/or any other document entered into pursuant to or in connection with it) except with the express prior written consent of VML.
3. VML may sub-contract any or all of its obligations relating to the provision of the Services without the Customer's prior written approval provided always that VML remains responsible for the acts or omissions of its sub-contractors as if they were its acts or omissions.
SEVERABILITY
1. If any clause of this Agreement or part thereof shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other clause or part thereof all of which shall remain in full force and effect.
NOTICES
1. Any notice to be given must be in writing and sent by electronic transmission, as well as in hard copy format by hand or registered post to the relevant party's address. The address for service of each party will be address as set out in the Order Form or as otherwise notified in writing to the party giving the notice. A notice will be deemed to have been served:
  1. if delivered by hand, at the time of delivery;
  2. if posted, two (2) Business Days after posting; and
  3. if sent by electronic transmission, when the transmission is complete.
FORCE MAJEURE
1. Neither party shall be liable for any failure to perform or delay in the performance of any of its obligations under this Agreement caused by a Force Majeure Event. The party so affected shall promptly notify the other party in writing of the nature and severity of the Force Majeure Event (including the estimated duration and impact on that party's ability to perform its obligations).
2. Provided the affected party complies with the notification requirement in clause 22.1, its performance under this Agreement shall be suspended for the period that the Force Majeure Event continues, and it will have a reasonable extension of time for performance of its obligations taking all circumstances into account. As regards the delay or stoppage arising from the Force Majeure Event:
  1. any costs arising from such delay or stoppage shall be borne by the party incurring those costs; and
  2. each party shall take reasonable steps to bring that event to a close or to find a solution by which obligations under this Agreement may be performed despite the Force Majeure Event.
3. If the Force Majeure Event continues for more than one month, either party may terminate this Agreement with immediate effect on giving written notice to the other party.
THIRD PARTIES
1. Except as expressly provided in this Agreement, a person who is not a party to this Agreement may not enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. The parties may by agreement rescind or vary this Agreement without requiring the consent of any such person.
GOVERNING LAW
1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes and claims) shall be governed by and construed in accordance with the laws of England and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).