FroXx Industries Visual Assistance
Terms and Conditions
Date of last update: 1 October 2022
Please read these Terms and Conditions carefully. All contracts that the Provider may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and the Provider will ask for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer.
1.1 In these Terms and Conditions:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the Web Application and access credentials for the API;
"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;
"Business Day" means any weekday except Saturdays, Sundays, and bank or public holidays in the Principality of Liechtenstein;
"Business Hours" means the hours of 09:00 am to 17:00 in the Central European Time zone on a Business Day;
"Charges" means the following amounts:
(a) the amounts specified in Section 4 of the Services Order Form;
(b) such amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the Provider's standard time-based charging rates (as notified by the Provider to the Customer before agreeing to chargeable services) by the time spent by the Provider's personnel performing the Support Services;
"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Customer" means the person or entity identified as such in Section 1 of the Services Order Form;
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer Data;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to the Agreement;
"Data Protection Laws" means the EU GDPR;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date upon which the parties execute a Services Order Form; or, following the Customer completing and submitting the online Services Order Form published by the Provider on the Provider's website, the date upon which the Provider sends to the Customer an order confirmation;
"EU GDPR" means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means FroXx Visual Assistance, as specified in Section 3 ‘Hosted Services Specification’ of the Services Order Form which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Section 3 of the Services Order Form and in the Documentation;
“Indemnity Event" has the meaning given to it in Clause 17.1;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)];
"Personal Data" means personal data under any of the Data Protection Laws;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Provider" means FroXx GmbH, a company incorporated in Potsdam in Germany, Handelsregister registration number HRB 34076, having its registered office at Wetzlarer Strasse 30, 14482 Potsdam, Germany;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Services Order Form" means an online order form published by the Provider and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;
"Set-Up Services" means the configuration, implementation and integration of the Hosted Services in accordance with Section 2 of the Services Order Form;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, including changes as required by law at no cost to the Customer, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari;
"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;
"Third-Party Services" means any hosted, cloud or software-based services provided by any third party that are or may be integrated with the Hosted Services by the Provider from time to time in circumstances where the Customer must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider; and
“Web Application” means the web-based application that users launch and run in their Web Supported Browser to access and use the Hosted Services.
2.1 The Agreement shall come into force upon the Effective Date for a term of twelve (12) months which will be automatically renewed for succeeding terms of twelve (12) month each, subject to termination in accordance with Clause 21 or any other provision of these Terms and Conditions.
2.2 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.
3. Set-Up Services
3.1 The Provider shall provide the Set-Up Services to the Customer.
3.2 The Provider shall use reasonable endeavours to ensure that the Set-Up Services are provided within 3 Business Days from the Effective Date.
3.3 The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set-Up Services; and subject to Clause 18.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set-Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.
3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set-Up Services by the Provider shall be the exclusive property of the Provider.
4. Hosted Services
4.1 The Provider shall provide to the Customer upon the completion of the Set-Up Services the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of the Web Application for the internal business purposes of the Customer during the Term.
4.3 The licence is granted for the current versions of the Hosted Services and Platform. Provider may make improvements and updates to the Hosted Services Platform without the need for prior consent from the Customer.
4.4 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the web application may only be used through a Supported Web Browser;
(b) the Web Application may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
(c) the Web Application may only be used by the named users identified by Customer during the Set-Up, providing that the Customer may change, add or remove a designated named user during the Term; and
(d) the Web Application must not be used at any point in time by more than the number of concurrent users specified in section 4 ‘Financial provisions’ of the Services Order Form.
4.5 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person or application to access or use the Hosted Services;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services;
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation; and
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
4.6 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
4.7 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.
4.8 The Customer must comply with Schedule 1 (Acceptable Use Policy) and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 1 (Acceptable Use Policy).
4.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.10 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
4.11 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.12 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.13 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least ten (10) days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Scheduled maintenance
5.1 The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 5.
5.2 The Provider shall where practicable give to the Customer at least two (2) Business Days' prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services.
5.3 The Provider shall ensure that scheduled maintenance is carried out outside Business Hours, if reasonably possible.
5.4 The Provider shall ensure that, during each calendar month, the aggregate period during which the Hosted Services are unavailable as a result of scheduled maintenance does not exceed one (1) hour.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall provide the Support Services with reasonable skill and care.
6.3 The Provider shall provide the Support Services in accordance with Schedule 3 (Support SLA).
6.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least ten (10) days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer obligations
7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) consents and permits,
as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
8. Customer Data
8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, export, and edit the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting service providers, subject to any express restrictions elsewhere in the Agreement.
8.2 The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.
8.3 The Provider shall create a daily back-up copy of the Customer Data and shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken and shall retain and securely store each such copy for a period of up to thirty (30) days.
8.4 Within the period of three (3) Business Days following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 8.3. The Customer acknowledges that this process may overwrite the Customer Data stored on the Platform prior to the restoration.
9. Integrations with Third-Party Services
9.1 The Provider may integrate the Hosted Services with any Third-Party Services.
9.2 Notwithstanding the presence of any Third-Party Services integration, particular Third-Party Services shall only be activated with respect to the Hosted Services account of the Customer by:
(a) the Customer; or
(b) the Provider with the prior written agreement of the Customer.
9.3 The Provider shall use reasonable endeavours to maintain any integration with Third-Party Services that has been activated with respect to the Hosted Services account of the Customer. Subject to this, the Provider may remove, suspend, deactivate or limit any Third-Party Services integration at any time in its sole discretion.
9.4 The supply of Third-Party Services shall be under a separate contract or arrangement between the Customer and the relevant third party. The Provider does not contract to supply the Third-Party Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of any Third-Party Services. Fees may be payable by the Customer to the relevant third party in respect of the use of Third-Party Services.
9.5 The Customer acknowledges and agrees that:
(a) the activation of Third-Party Services with respect to the Hosted Services account of the Customer may result in the transfer of Customer Data and/or Customer Personal Data from the Hosted Services to the relevant Third-Party Services and vice versa;
(b) the Provider has no control over, or responsibility for, any disclosure, modification, deletion or other use of Customer Data and/or Customer Personal Data by any provider of Third-Party Services;
(c) the Customer must ensure that it has in place the necessary contractual safeguards to ensure that the transfer of Customer Personal Data to, and use of Customer Personal Data by, a provider of Third-Party Services is lawful; and
(d) the Customer shall ensure that the transfer of Customer Data to a provider of Third-Party Services does not infringe any person's Intellectual Property Rights or other legal rights and will not put the Provider in breach of any applicable laws.
9.6 Additional Charges may be payable by the Customer to the Provider in respect of the activation and/or use of a Third-Party Services integration.
9.7 Subject to Clause 18.1:
(a) the Provider gives no guarantees, warranties or representations in respect of any Third-Party Services; and
(b) the Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by Third-Party Services or any provider of Third-Party Services.
10. No assignment of Intellectual Property Rights
10.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
11.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
11.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 11.2.
11.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, exclusive of any applicable value added taxes or other taxes are levied at point of sale, which will be added to those amounts and payable by the Customer to the Provider.
11.4 The Provider may elect to vary any element of the Charges on any anniversary of the Effective Date by giving to the Customer not less than 30 days' written notice of the variation.
12.1 The Provider shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in Section 4 ‘Financial provisions’ of the Services Order Form.
12.2 The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Clause 12.
12.3 The Customer must pay the Charges by debit card, credit card, direct debit, or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).
12.4 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may charge the Customer interest on the overdue amount at the rate of the amount of 5 (five) interest percentage points above the current prime rate of the European Central Bank.
13. Provider's confidentiality obligations
13.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than the performance of the Agreement, including data analytics for service improvement.
13.2 Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
13.3 This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
13.4 The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
13.5 The provisions of this Clause 13 shall continue in force for a period of 5 years following the termination of the Agreement, at the end of which period they will cease to have effect.
14. Data protection
14.1 Each party shall comply with the Data Protection Laws (GDPR) with respect to the processing of the Customer Personal Data.
14.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
14.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to the Agreement:
(a) the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 4 (Data processing information) (or such other categories as may be agreed by the parties in writing); and
(b) Personal Data of the types specified in Section 2 of Schedule 4 (Data processing information) (or such other types as may be agreed by the parties in writing).
14.4 The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 4 (Data processing information).
14.5 The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 14.
14.6 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
14.7 The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:
(a) the Provider may transfer the Customer Personal Data to its third-party processors in the jurisdictions identified in Section 5 of Schedule 4 (Data processing information) and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein.
14.8 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
14.9 Notwithstanding any other provision of the Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
14.10 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
14.11 The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including those measures specified in Section 4 of Schedule 4 (Data processing information).
14.12 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 (fourteen) days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 10 (ten) days' written notice to the Provider, providing that such notice must be given within the period of 10 (ten) days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third-party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 14.
14.13 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the third parties identified in Section 5 of Schedule 4 (Data processing information).
14.14 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
14.15 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 14.15.
14.16 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after the Provider becomes aware of the breach.
14.17 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 14. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 14.17.
14.18 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
14.19 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.
15.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
15.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Platform will incorporate security features reflecting the requirements of good industry practice.
15.3 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with these Terms and Conditions.
15.4 The Customer warrants to the Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
15.5 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
16. Acknowledgements and warranty limitations
16.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
16.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
16.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with web browsers as defined under Supported Web Browser; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other web browser.
17.1 Disputes about and claims for liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by either party and arising directly or indirectly as a result of any breach by either party of these Terms and Conditions (“Indemnity Event”) shall be governed by and resolved in accordance with German liability and damages laws.
17.2 Either party must:
(a) upon becoming aware of an actual or potential Indemnity Event, notify the other party;
(b) provide to the other all such assistance as may be reasonably requested by the other party in relation to the Indemnity Event;
(c) not admit liability to any third party in connection with the Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Indemnity Event without the prior written consent of the other party
18. Limitations and exclusions of liability
18.1 All disputes and claims in the area of liability and damages arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions shall be governed by and resolved in accordance with German liability and damages laws.
19. Force Majeure Event
19.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
19.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
19.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
20.1 The Provider may terminate the Agreement by giving to the Customer not less than 90 (ninety) days' written notice of termination. The Customer may terminate the Agreement by giving to the Provider not less than 30 (thirty) days' written notice of termination.
20.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of the Agreement, and the breach is not remediable;
(b) the other party commits a breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 (thirty) days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
20.3 Subject to applicable law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement).
20.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Provider has given to the Customer at least 30 (thirty) days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 20.4.
20.5 The rights of termination set out in the Agreement shall not exclude any rights of termination available at law.
21. Effects of termination
21.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.11, 9.7, 12.2, 12.4, 13, 14, 17, 18, 21, 24, 25, 26, 27, 28.1, 28.2, 29, 30 and 31.
21.2 Except to the extent expressly provided otherwise in these Terms and Conditions, the termination of the Agreement shall not affect the accrued rights of either party.
21.3 Within 30 (thirty) days following the termination of the Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement, without prejudice to the parties' other legal rights.
22.1 Any notice from one party to the other party under these Terms and Conditions must be given by one of the following methods (using the relevant contact details set out in Section 5 of the Services Order Form and Clause 22.2):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received upon date of signature of receipt; or
(c) email, in which case the notice shall be deemed to be received upon receipt of a confirmation email from the recipient providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
22.2 The Provider's contact details for notices under this Clause 22 are as follows:
Wetzlarer Strasse 30
22.3 The addressee and contact details set out in Section 5 of the Services Order Form and Clause 22.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 22.
23.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Provider may subcontract any of its obligations under the Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
23.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
23.3 Notwithstanding the provisions of this Clause 23 but subject to any other provision of these Terms and Conditions, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
24.1 The Customer hereby agrees that the Provider may assign, transfer or otherwise deal with the Provider's contractual rights and obligations under these Terms and Conditions to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.
24.2 The Provider hereby agrees that the Customer may assign, transfer or otherwise deal with the Customer's contractual rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.
25. No waivers
25.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
25.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
26.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
26.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
27. Third-party rights
27.1 The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.
27.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
28. Changes to these Terms and Conditions
28.1 Provider may revise, modify and/or update, at any time, any clause or provision contained in these Terms and Conditions without prior notice. Provider will attempt to notify Customers in advance of material changes that may affect them.
28.2 The updated version will be valid for use of the Hosted Services made after its disclosure by Provider. Continued access or use of the Hosted Services after the disclosure and acceptance of the modifications will confirm the validity of the new Terms and Conditions by the Customer.
28.3 If Customer does not accept the change in the Terms and Conditions, Customer may terminate this Agreement in accordance with Clause 20. Such termination shall not, however, exempt Customer from complying with all obligations assumed under the previous version of the Terms and Conditions.
29. Entire agreement
29.1 The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
29.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
29.3 The provisions of this Clause 29 are subject to Clause 18.1.
30. Law and jurisdiction
30.1 These Terms and Conditions shall be governed by and construed in accordance with German law.
30.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of the Principality of Liechtenstein.
31.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
31.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
31.3 References in these Terms and Conditions to "calendar months" are to the 12 (twelve) named periods (January, February and so on) into which a year is divided.
31.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Schedule 1 (Acceptable Use Policy)
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of FroXx Visual Assistance website(s), of which the URL(s) will be provided by Supplier as part of the Set-up Services, any successor website, and the services available on that website or any successor website (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Provider (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trademark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
4.2 Content must not depict violence.
4.3 Content must not be pornographic or sexually explicit.
5. Negligent advice
5.1 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
6.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
6.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
6.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
6.4 You must not use the Services to send any hostile communication, or any communication intended to insult, including such communications directed at a particular person or group of people.
6.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
6.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
6.7 You must at all times be courteous and polite to other users of the Services.
7. Marketing and spam
7.1 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
7.2 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
8. Regulated businesses
8.1 You must not use the Services for any purpose other than for its intended purpose as described in Section 3 ‘Specification of the Hosted Services’ of the Services Order Form without the written permission of the Provider.
9.1 You acknowledge that we do not actively monitor the Content or the use of the Services. Provider reserves the right to investigate any suspicious activity concerning the use of the Services.
10. Data mining
10.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
11.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
12. Harmful software
12.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
12.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Schedule 2 (Availability SLA)
1. Introduction to availability SLA
1.1 This Schedule 2 sets out the Provider's availability commitments relating to the Hosted Services.
1.2 In this Schedule 2, "uptime" means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.
2.1 The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99% (ninety-nine) during each calendar month.
2.2 The Provider shall be responsible for measuring uptime, and shall do so using the following methodology: (the number of hours in a calendar month – number of hours of downtime in that calendar month) / (the number of hours in a calendar month)
2.3 Customer may request monthly uptime reports from the Provider.
3. Service credits
3.1 In respect of each calendar month during which the Hosted Services uptime is less than the commitment specified in Section 2.1, the Customer shall earn service credits in accordance with the provisions of this Section 3.
3.2 The service credits earned by the Customer shall be as follows. The service credit for a calendar month will be proportional to the downtime that exceeds the maximum downtime allowed for by uptime percentage in Section 2.1. For example, in a calendar month with 30 days a 99% uptime results in 712.8 hours of uptime and a downtime of 7.2 hours. If the actual downtime is 15 hours, the excess downtime of 7.8 hours (15 –7.2 hours) would result in a 1.094% (7.8 hrs / 712.8 hrs * 100%) service credit off the service fee of that calendar month, or average monthly fee in the case of an annual fee.
3.3 The Provider shall deduct an amount equal to the service credits percentage due to the Customer under this Section 3 from amounts invoiced in respect of the Charges for the Hosted Services that are subject to service credits. All remaining service credits shall be deducted from each invoice issued following the reporting of the relevant failure to meet the uptime commitment, until such time as the service credits are exhausted.
3.4 Service credits shall be the sole remedy of the Customer in relation to any failure by the Provider to meet the uptime guarantee in Section 2.1, except where the failure amounts to a material breach of the Agreement.
3.5 Upon the termination of the Agreement, the Customer's entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by the Provider in respect of Hosted Services following such termination.
4.1 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime guarantee given in Section 2.1:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Provider's hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;
(d) a fault or failure of the Customer's computer systems or networks;
(e) any breach by the Customer of the Agreement; or
(f) scheduled maintenance carried out in accordance with the Agreement.
Schedule 3 (Support SLA)
1.1 This Schedule 3 sets out the service levels applicable to the Support Services.
2.1 The Provider shall make available to the Customer a helpdesk.
2.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
2.3 The Provider shall ensure that the helpdesk is accessible via the contact details given below:
2.4 The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
2.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
3. Response and resolution
3.1 Issues raised by Customer through the Support Services shall be categorised as listed in Table 1 in Clause 3.3. Customer shall provide
3.2 The Provider shall determine, acting reasonably, into which severity category an issue falls.
3.3 The Provider shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the time periods given in Table 1. Time periods will start from the receipt of the request and /or issue description and supporting material from Customer and understanding of the Support Services request by Provider.
Table 1: Support types, categories and time periods
3.3 The Provider shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the time periods given in Table 1. Time periods will start from the receipt of the request and /or issue description and supporting material from Customer and understanding of the Support Services request by Provider.
3.4 The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.
3.5 The Provider shall use reasonable endeavours to resolve issues raised through the Support Services promptly, and in any case in accordance with the following time periods stated in Table 1.
4. Provision of Support Services
4.1 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
5. Limitations on Support Services
5.1 The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
(a) the improper use of the Hosted Services by the Customer; or
(b) any alteration to the Hosted Services software made without the prior consent of the Provider.
Schedule 4 (Data processing information)
1. Categories of data subject
The individual customers and personnel of the Customer.
2. Types of Personal Data
Names, email addresses and telephone numbers, and in the case of Customer’s customers building addresses for site visits.
3. Purposes of processing
To register and grant access to named Customer personnel who will be using and managing the Visual Assistance service
To log names, contact details and support requests of Customer’s customers in the Visual Assistance ticketing system who are requesting support
To restore Customer Data and Personal Data from backups
4. Security measures for Personal Data
All Customer Data and Personal Data are stored in a secured cloud environment from a leading Cloud provider (Microsoft Azure) in a data centre in the European Economic Area (EEA). The cloud environment is protected by multiple security layers (e.g., data encryption, network security, access management, threat protection). More generally, the Visual Assistance platform design adheres to industry best-practice security guidelines).
5. Sub-processors of Personal Data
System maintenance, including problem fixing, and development of the Visual Assistance platform is performed by a trusted third party in Brazil who are contractually, fully GDPR compliant. The third party will only access Customer Data or Personal Data remotely to restore data and resolve platform issues (debugging).