Terms and Conditions
VISMO LIMITED
TERMS OF BUSINESS
Version 7.1, May 2023
PART A – TERMS APPLICABLE TO ALL AGREEMENTS
- BASIS OF CONTRACT
1.1 This document contains the terms of business that shall apply to the supply of the Solution by Vismo to the Client. It is intended to be used in conjunction with the Order placed by the Client for the Solution.
1.2 These terms of business apply to each Order to the exclusion of any other terms and conditions that the Client seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
1.3 Each Order constitutes an offer by the Client to purchase the Solution in accordance with these terms and conditions.
1.4 Each Order shall be deemed to be accepted on the earlier of Vismo:
1.4.1 counter signing the Order; and
1.4.2 commencing the supply of the Solution to the Client.
1.5 Part A (Terms Applicable to all Agreements) and Clause 33 (Definitions and Interpretation) of these terms and conditions shall apply to all Orders placed by the Client. The other parts of these terms and conditions shall only apply as follows:
1.5.1 Part B (Terms Applicable to the purchase of Equipment) shall only apply where the Client’s Order includes the purchase of Equipment from Vismo as part of the Solution; and
- DURATION
The Agreement shall commence on the Commencement Date and shall continue for the Initial Term and afterwards for successive periods of 12 months or such other period specified in the Order (each a “Renewal Term”) subject to termination in accordance with Clause 9.
- SUPPLY OF SOLUTION
In consideration of the Charges Vismo shall supply the Solution to the Client in accordance with the terms of this Agreement.
- SOFTWARE LICENCE
4.1 Subject to the terms of the Agreement, Vismo hereby grants the Client a non-exclusive and non-transferable licence to:
4.1.1 install and use the Software for the Term; and
4.1.2 use the Software for the Client’s own business purposes only.
4.2 The Client shall not (nor shall it allow any of its users to):
4.2.1 copy, adapt, translate, arrange, alter, reverse engineer, decompile or disassemble the Software except to the extent permitted by applicable law;
4.2.2 without written permission from Vismo, make the Software available for third parties to use;
4.2.3 exceed the licensed number of users of the Software as set out in the Order;
4.2.4 cause or permit the Solution to be used for the purpose of or in connection with services provided by a third party to the Client, including operations that are outsourced by the Client; or
4.2.5 use the Solution otherwise than in accordance with this Agreement.
- CHARGES AND PAYMENT
5.1 In consideration of the supply of the Solution to the Client by Vismo the Client shall pay the Charges to Vismo in accordance with this Clause 5. Except as provided to the contrary in this Agreement, all Charges are non-refundable.
5.2 The Client shall pay the Charges in full without set-off within 30 days of the date of invoice which shall be issued in respect of the supply of the Solution on the date of the Order and (where applicable to a Renewal Term) annually thereafter. All Charges are exclusive of applicable taxes and any bank charges, which shall be paid by the Client in addition.
5.3 Vismo shall be entitled to set off any amount owed by the Client to Vismo against any amount due to the Client under this Agreement.
5.4 Vismo reserves the right to increase any recurring revenue elements of the Charges once per annum, such increase to take effect on 31st December each year, provided that any such increase shall be limited to the increase in the UK Retail Prices Index (excluding mortgage interest) in the preceding 12 month period.
5.5 Vismo reserves the right at all times to charge for excessive usage costs incurred which in its sole opinion are outside the scope of the Solution (for example SMS or satellite communications costs). Vismo will always discuss with the Client changes it deems appropriate to avoid future excessive usage costs, for example, changes to configurations used in the Solution.
- PERFORMANCE
6.1 Vismo shall procure all permissions, licences (including licences of third party software) and other authorisations from third parties, including Competent Authorities, which are or may reasonably be expected to be required for the purpose of or in connection with the receipt and use of the Solution.
6.2 The Client shall:
6.2.1 provide Vismo with all co-operation (including with any competent authorities) information and assistance Vismo may reasonably require to provide the Solution; and
6.2.2 as soon as reasonably practicable notify Vismo of any circumstances which prevent or hinder or which may reasonably be expected to prevent or hinder Vismo from performing the Agreement, in each case giving the reasons in reasonable detail.
6.3 The Client acknowledges that any Equipment supplied by Vismo provides a minimum of 12 hours usage on a single battery charge.
6.4 The Client acknowledges that Vismo has a default maximum number of three retries on Equipment needing to reconnect to enable voice communications with the Solution. Any variance to this number of retries will be detailed in the Order.
- SOLUTION AVAILABILITY
7.1 Vismo is entitled (acting reasonably) to interrupt, prevent, postpone, delay, limit, or curtail the Solution due to:
7.1.1 actions reasonably required in order to comply with applicable law, including the directions of a Competent Authority;
7.1.2 the Solution being used by the Client in breach of this Agreement;
7.1.3 non-payment of any Charges by the Client; or
7.1.4 maintenance, inspection, servicing, repair, renewal or replacement of the Software or the systems or networks used to provide the Solution, and Vismo shall not be liable for any loss, damage, cost or expense of the Client incurred or sustained, nor shall the Charges be reduced, as a result.
7.2 Vismo shall, where reasonably practicable, give reasonable prior notice in advance to the Client of any matter to which Clause 7.1 refers, and where notice in advance is not reasonably practicable, notice shall be given within two Business Days after the occurrence of the relevant event.
7.3 The Client acknowledges and agrees that the performance of the Solution may be interrupted or impaired due to:
7.3.1 a network failure or service limitation by the mobile/satellite network operator with which the smartphone or Equipment is registered or country it is roaming to. This includes SMS limitations in certain countries where full services are either not available or restricted unless network pre-registration is applied for and paid in advance. A full list of these countries can be found here https://support.twilio.com/hc/en-us/articles/223133767-International-support-for-Alphanumeric-Sender-ID;
7.3.2 a failure affecting one of Vismo’s third party processors;
7.3.3 the smartphone or Equipment being unable to connect to either a mobile/satellite network (whether due to geographic, atmospheric or other conditions or circumstances beyond the control of Vismo);
7.3.4 a hardware fault in the smartphone or Equipment;
7.3.5 a fault in any third party software installed on the smartphone; or any fault or failure in, or impaired performance of, the Client’s systems on which the Software is operating, and, unless specified elsewhere in in this Agreement, Vismo shall not be liable for any loss, damage, cost or expense of the Client incurred or sustained, nor shall the Charges be reduced, as a result.
7.3.6 Clients electing to use the Alarm Monitoring Service should be aware of the following limitations:
7.3.6.1 Operators from the Alarm Monitoring Service cannot remotely access the Solution provided for the purpose of proactively requesting location details.
7.3.6.2 Operators from the Alarm Monitoring Service cannot remotely access the Solution provided for the purpose of listening.
7.3.6.3 For USA monitoring, Client agrees that by using the Rapid SOS Services, they have read and agreed to the terms of the Rapid SOS End User License Agreement which is found at https://rapidsos.com/business-terms-of-service/
7.3.6.4 Vismo’s standard pricing for Alarm Receiving Centre/Monitoring Services includes a fair usage policy. For each connection, a maximum of one red alert call needing ARC/Monitoring operator involvement, for each of ten connections (or part thereof), per year is assumed. Vismo reserves the right to charge for higher levels of activity or will discuss with the Client additional packages of incident management time.
- INTELLECTUAL PROPERTY RIGHTS
8.1 Except and to the extent provided in the Agreement, neither party shall have or acquire any right, title or interest in or to any Intellectual Property Rights owned by or licensed to the other at the Commencement Date and all rights are reserved to the owning party or its licensors.
8.2 For the duration of the Agreement and subject to Clause 12, Vismo shall defend the Client against, and hold the Client harmless in respect of, any claim, allegation, action, dispute or proceedings that the Solution used in accordance with the Agreement infringes the Intellectual Property Rights of any third party.
- TERMINATION
9.1 Either party (the “Non-Defaulting Party”) may by giving notice to the other (the “Defaulting Party”) terminate the Agreement (in whole or in part) if the Defaulting Party commits a material breach of the Agreement which, in the case of a breach capable of remedy, is not remedied within 30 Business Days after the Non-Defaulting Party has given notice containing details of the breach, requiring such breach to be remedied and stating that, if it is not, this Agreement may be terminated.
9.2 Either party may at any time, by notice to the other, terminate the Agreement as from the date of expiry of the notice if an Insolvency Event occurs in relation to the other.
9.3 During the Initial Term, either party may terminate the Agreement (in whole or in part) by giving not less than 30 days’ notice to the other and the Agreement shall terminate at the end of the Initial Term.
9.4 During a Renewal Term, either party may terminate the Agreement (in whole or in part) by giving not less than 30 days’ notice to the other and the Agreement shall terminate at the end of the Renewal Term.
- EFFECT OF TERMINATION
10.1 Termination of this Agreement does not affect:
10.1.1 the rights or liabilities of the parties under this Clause 10 or which have accrued on or before termination; and
10.1.2 the continuance in force of Clauses which expressly or by their implication survive termination of this Agreement.
10.2 In all cases of termination of the Agreement:
10.2.1 Vismo shall:
(a) return the Client’s data to the Client; and
(b) as soon as reasonably practicable cleanse all Client’s data from Vismo’s systems and shall certify that the cleansing is complete;
10.2.2 the Client shall cease to use the Software and the Solution;
10.2.3 each party shall return or destroy the Confidential Information of the other in its possession or control, and in the case of destruction, where requested certify in writing that destruction has taken place; and
10.2.4 the Client shall pay to Vismo all Charges and any other sums due but unpaid at the date of such termination (including any costs and expenses incurred by Vismo under Clause 32.1.3).
- WARRANTIES
11.1 Vismo warrants that for the duration of the Term, from the date of installation (the “Warranty Period”) the Software will, when properly used, perform substantially in accordance with the functions described in the Specification (provided that the Software is properly used on the hardware and with the operating system for which it was designed as referred to in the accompanying documentation).
11.2 The Client acknowledges that the Software:
11.2.1 has not been developed to meet the Client’s individual requirements, and that it is therefore the Client’s responsibility to ensure that the facilities and functions of the Software as described in the Specification meet the Client’s requirements; and
11.2.2 may not be free of bugs or errors, and agrees that the existence of minor errors shall not constitute a breach of a licence granted under these terms.
11.3 If, within the Warranty Period, the Client notifies Vismo in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Specification, and such defect or fault does not result from the Client having amended the Software or used it in contravention of the terms of a licence granted under these terms, Vismo will, at its sole option, either repair or replace the Software, provided that the Client makes available all the information that may be necessary to help Vismo to remedy the defect or fault, including sufficient information to enable Vismo to recreate the defect or fault.
11.4 Each party warrants to the other that it has full right, power and authority to enter into and perform its obligations under this Agreement.
11.5 All warranties, conditions, or terms not set out in the Agreement and which would otherwise be implied or incorporated into the Agreement by reason of statute, common law or otherwise (other than as to the title to goods and statutory interest) are hereby excluded, except to the extent they may not be excluded or limited by law.
- LIMITATION OF LIABILITY
12.1 Nothing in this Agreement shall affect the liability of either party for death or personal injury, fraud, or any other liability to the extent it cannot be excluded or limited by law.
12.2 Subject to Clauses 12.1 and 12.3 Vismo’s total liability to the Client for all claims, losses, liabilities, damages, costs and expenses under this Agreement whether in contract, tort (including negligence) or otherwise shall not exceed an amount equal to the initial Charges paid in respect of the Solution.
12.3 In no event shall Vismo be liable to the Client for any:
12.3.1 loss of profit, reputation, business, revenue or goodwill, anticipated savings, loss or damage to data; or
12.3.2 consequential or indirect loss, or damage howsoever arising under this Agreement.
- CONFIDENTIALITY
13.1 Each party undertakes to the other:
13.1.1 to keep confidential all Confidential Information of the other;
13.1.2 not to disclose the Confidential Information of the other without the other’s prior written consent except to those of its employees who have a need to know the same;
13.1.3 not to use the Confidential Information of the other except for the purposes of performing its obligations under the Agreement; and
13.1.4 to keep separate from all other information all Confidential Information of the other in its possession or control.
13.2 The provisions of Clause 13.1 shall not apply to Confidential Information to the extent that it is:
13.2.1 already in the other’s possession on the date of its disclosure;
13.2.2 in the public domain other than as a result of a breach of this Clause 13;
13.2.3 required to be disclosed pursuant to applicable law or other governmental regulation or under any official or regulatory request or order of any regulatory body or official (but only to the extent and for the purpose of that disclosure); or
13.2.4 required to be disclosed in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice (but only to the extent and for the purpose of that disclosure).
13.3 Each party acknowledges that the other’s Confidential Information is valuable and that damages might not be an adequate remedy for any breach of Clause 13 and accordingly a party will be entitled, without proof of special damage, to an injunction and other equitable relief for any actual or threatened breach of Clause 13.
- DATA PROTECTION
14.1 Each party shall comply with applicable requirements of the Data Protection Legislation. This Clause 14 is in addition to and does not replace a party’s obligations under the Data Protection Legislation. The terms “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Process” and “Processing” have the meanings prescribed in the Data Protection Legislation.
14.2 For the purposes of the Data Protection Legislation, the Client is the Controller and Vismo is the Data Processor. The appendix to this Agreement sets out a description of the subject matter, nature and purpose of processing by Vismo, the duration of the processing, the types of Personal Data, categories of Data Subject and the obligations and rights of the Client as Controller.
14.3 Vismo shall:
14.3.1 process Personal Data only on written instructions of the Client. If Vismo is required by any applicable laws to process Personal Data it shall, to the extent legally permitted, notify the Client before doing so;
14.3.2 have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of, accidental loss or destruction of or damage to Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected;
14.3.3 not engage another processor without specific or general written authorisation from the Client and without ensuring that the same data protection obligations as set out in the Agreement are imposed on that other processor and Vismo shall remain fully liable to the Client for performance of the other processor’s obligations to the extent the other processor fails to fulfil their data protection obligations;
14.3.4 ensure that persons who have access to or process Personal Data keep the Personal Data confidential (either under contractual or statutory obligations);
14.3.5 ensure that any transfer of Personal Data outside of the European Economic Area takes place only on documented instructions of the Client and that the organisations to which the Personal Data is transferred ensure an adequate level of protection;
14.3.6 assist the Client to respond to any request from a Data Subject;
14.3.7 notify the Client without undue delay of a Personal Data breach (which has the meaning given to it in the Data Protection Legislation) and provide reasonable assistance to the Client complying with its obligations pursuant to Articles 32 to 36 of GDPR;
14.3.8 at the written direction of the Client, delete or return Personal Data to the Client on termination of this Agreement unless Vismo is required by law to store the Personal Data; and
14.3.9 maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Client or the Client’s designated auditor, provided that the Client shall only be permitted to conduct one audit per year, provide reasonable notice of any audit it wishes to carry out, and shall carry out an audit at its own expense.
14.4 Vismo may engage third party processors, including those listed in section 2.10 of Vismo’s Privacy Policy, a copy of which is at http://www.vismo.com/privacy pursuant to this Agreement. For the purposes of clause 14.3.3 the Client consents to Vismo engaging these processors, each of which may receive Personal Data processed by Vismo on behalf of the Client.
14.4.1 Securitas Security Services (UK) Limited (for 24/7 alarm receiving centre monitoring, UK Only);
14.4.2 Rapid SOS Inc & COPS Monitoring Inc (for 24/7 alarm receiving center monitoring, USA Only);
14.4.3 Google LLC (for location look up);
14.4.4 Twilio Inc. (for Mass Notification messaging); and
14.4.5 Microsoft Inc. (Azure Cloud Hosting).
14.5 Vismo shall immediately inform the Client if, in its opinion, an instruction from the Client infringes the Data Protection Legislation.
14.6 Vismo will store and use any information provided to it by the Client in accordance with its privacy policy, which can be found by following this link http://www.vismo.com/privacy
- ENTIRE AGREEMENT
15.1 This Agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all representations, including all pre-contract misrepresentations and misstatements negligently or innocently made, agreements, negotiations or understandings between the parties, which are not set out in the Order, except that this Clause 15.1 does not affect the liability of either party for any fraudulent misrepresentation.
15.2 Each of the parties represents, warrants and undertakes that:
15.2.1 in entering into the Agreement, the party does not rely on any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in this Agreement; and
15.2.2 it shall not claim any remedy in respect of statements, representations, warranties or understandings made or repeated in this Agreement or in relation to this Agreement, other than breach of contract, and which shall be to the exclusion of any other remedy in respect of such statements, representations, warranties or understandings upon which it may have relied in entering into this Agreement, whether for misrepresentation or otherwise.
- GENERAL
16.1 Force Majeure: Neither party shall be liable to the other for any breach of the Agreement to the extent such breach results from any event which is beyond the reasonable control of the party liable to effect performance, including acts of God, war, terrorism, fire and natural disasters.
16.2 Amendment: An amendment to the Agreement is ineffective unless it is in writing, expressly purports to amend the Agreement and is signed by both parties.
16.3 Remedies are cumulative: The rights and remedies provided by this Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law or in this Agreement.
16.4 Further assurance: Each party shall at the request and cost of the other execute all deeds and other documents, and do all things that the other may require (acting reasonably) in order to give effect to the terms of this Agreement.
16.5 Notices: Any communication to be given in connection with the matters contemplated by this Agreement shall be in writing and shall either be delivered by hand or sent by first class pre-paid post (or in the case of overseas post, by airmail) or facsimile transmission or e-mail. Delivery by courier shall be regarded as delivery by hand. Communications shall be sent to the address or e-mail address of the relevant party referred to in the Order.
16.6 Announcements and publicity: No party may make any press conference, announcement or other communication concerning the Agreement or in connection with either party or its group companies without the prior written consent of the other except as may be required by applicable law, and provided that (in any case) the communication is made only after reasonable consultation with the other party.
16.7 Waiver: Any failure or neglect by either party to enforce any of the provisions of this Agreement will not be construed nor deemed to be a waiver of that party’s rights and does not affect the validity of the whole or part of this Agreement nor prejudice that party’s rights; and any waiver by either party of its rights under this Agreement does not operate as a waiver in respect of any subsequent breach.
16.8 Invalidity: If any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or part, that provision shall to that extent be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall be unaffected.
16.9 Assignment and sub-contracting: Neither party shall without the prior written consent of the other (not to be unreasonably withheld or delayed) assign, transfer, charge, dispose of, deal with or subcontract its rights, beneficial interests or obligations under this Agreement.
16.10 No partnership: Nothing in this Agreement shall or shall be deemed to create a partnership between the parties.
16.11 Rights of third parties: Except as may be provided to the contrary in the Agreement, the Agreement does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it.
- GOVERNING LAW AND JURISDICTION
17.1 The Agreement shall be governed by and construed in accordance with English law
17.2 The courts of England and Wales shall have non-exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement.
PART B – TERMS APPLICABLE TO THE PURCHASE OF EQUIPMENT
- BASIS OF SUPPLY
18.1 Where the Client has placed an Order to purchase Equipment from Vismo as part of the Solution, the terms and conditions of this Part B shall apply in addition to the terms and conditions in Part A.
18.2 Vismo reserves the right to make any changes in the specification of the Equipment which are required to conform with any applicable legislation which do not materially affect their quality or performance.
- PRICE OF EQUIPMENT
The price of the Equipment shall be Vismo’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Vismo’s price list current at the date of acceptance of the Order.
- DELIVERY AND RISK
20.1 Delivery of the Equipment shall be made by Vismo at the Client’s address stated in the Order. Vismo shall use all reasonable endeavours to effect delivery by the delivery date specified in the Order.
20.2 The Equipment shall be at the risk of Vismo until delivery to the Client’s address stated in the Order.
- OWNERSHIP
Ownership of the Equipment shall pass to the Client when Vismo has received in full in cleared funds all sums due to it in respect of the Equipment.
- WARRANTY FOR PURCHASED EQUIPMENT
22.1 Vismo warrants to the Client that the Equipment is free from defects of workmanship and materials. Vismo undertakes (subject to the remainder of this Clause 22) at its option, to repair or replace Equipment which is found to be defective as a result of faulty materials or workmanship within 12 months of delivery and installation.
22.2 Vismo shall not in any circumstances be liable for a breach of the warranty under Clause 22.1 unless:
22.2.1 the Client notifies Vismo of any defect in writing within 5 Business Days of the defect occurring;
22.2.2 Vismo is permitted to make a full examination of the alleged defect; or
22.2.3 the defect is directly attributable to defective material, workmanship or design.
22.3 Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the warranty period under Clause 22.1.
22.4 If Vismo fails to remedy any material defect in the Equipment in accordance with Clause 22.1, Vismo shall, at the Client’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Charges that relate to the purchase of Equipment.
22.5 If Vismo finds that Equipment reported as faulty is in working order then the Client will pay the cost of collection and delivery of the replacement Equipment.
22.6 Vismo shall not in any circumstances be liable:
22.6.1 for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application; or
22.6.2 if the defect arises because Client failed to follow Vismo’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment.
22.7 If Vismo finds that Equipment reported as faulty is in working order then the Client will pay the cost of collection and delivery of the replacement Equipment.
- GARMIN HARDWARE
23.1 This clause is only applicable to Clients choosing to purchase Garmin hardware from Vismo. If the Client is purchasing Garmin hardware from Vismo then it acknowledges that it has read and understood the most recent versions of (i) the Garmin InReach Privacy Policy set forth at https://inreach.garmin.com, as the same may be amended, modified and supplemented by Garmin from time to time (the “Privacy Policy”) and (ii) for enterprise or business subscribers, the InReach Commercial Terms and Conditions set forth at https://inreach.garmin.com , as the same may be amended, modified and supplemented by Garmin from time to time (the “Commercial Terms and Conditions” and together with the Individual Terms and Conditions, the “Subscriber Terms and Conditions”).
- FAIR USAGE
24.1 Vismo’s standard pricing for any SIM & Airtime includes a fair usage policy. For each SIM purchased, sixty seconds of voice, six SMS text messages and 1Mb of data are included per SIM, per month. These volumes are aggregated/shared across SIM cards deployed to the Client and should be more than appropriate for normal/typical client operation of Vismo services. Vismo reserves the right to charge for higher levels of airtime if used, including roaming, or will discuss with the Client additional packages of additional airtime if appropriate. Vismo reserves the right at all times to restrict the bandwidth of any data connection in the event that in its sole opinion, the usage is high. Vismo may also at its sole discretion, disconnect a user either temporarily or permanently for excessive use,
24.2 The Client is liable for the payment of Charges relating to Airtime use and the use of any data transfer facilities provided (such as outgoing or incoming text messaging and the internet) from the day of Connection and such Charges will cease to accrue from the date of termination of the Connection.
24.3 Where the Client obtains an Alarm Monitoring Service the Client is liable for the payment of Charges relating to excessive usage of the Alarm Monitoring Service (such as to exceed a specified number of false alarm calls).
- WARRANTY FOR RENTED EQUIPMENT
25.1 Vismo warrants to the Client that the Equipment is free from defects of workmanship and materials. Vismo undertakes (subject to the remainder of this Clause 31) at its option, to repair or replace Equipment which is found to be defective as a result of faulty materials or workmanship within the Initial Term or any Renewal Term.
25.2 Vismo shall not in any circumstances be liable for a breach of warranty under Clause 31 unless:
25.2.1 the Client notifies Vismo of any defect in writing within 5 Business Days of the defect occurring;
25.2.2 Vismo is permitted to make a full examination of the alleged defect; or
25.2.3 the defect is directly attributable to defective material, workmanship or design.
25.3 Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the warranty period under Clause 31.
25.4 If Vismo fails to remedy any material defect in the Equipment in accordance with Clause 31, Vismo shall, at the Client’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Charges that relate to the rental of Equipment payable during the remaining term of the Agreement and, if relevant, return any Deposit (or any part of it).
25.5 If Vismo finds that Equipment reported as faulty is in working order then the Client will pay the cost of collection and delivery of the replacement Equipment.
25.6 Vismo shall not in any circumstances be liable:
25.6.1 for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application; or
25.6.2 if the defect arises because Client failed to follow Vismo’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment.
- TERMINATION
Either party may terminate the rental of Equipment under this Agreement at any time by giving not less than 30 days’ notice to the other and the Rental Period shall terminate at the end of the Term.
- EFFECT OF TERMINATION
27.1 On termination of this Agreement in respect of the rental of Equipment:
27.1.1 unless otherwise agreed with Vismo the Client shall return the Equipment to Vismo at the return address to be arranged at the end of the Rental Period in good working order and in the same condition (fair wear and tear excepted) as when it was delivered to the Client;
27.1.2 Vismo’s consent to the Client’s possession of the Equipment shall terminate; and
27.1.3 the Client shall pay Vismo’s replacement price for any Equipment which is damaged (fair wear and tear excepted) or not returned at the end of the Rental Period.
- DEFINITIONS AND INTERPRETATION
28.1 In this Agreement, the following definitions apply:-
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“Agreement” |
the agreement between Vismo and the Client comprised of the Order and these terms of business; |
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“Airtime” |
means time spent connected to a Network for the purposes of making and receiving telephone calls, data or SMS in relation to which Charges are payable; |
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“Alarm Monitoring Service” |
If applicable, means the service offered by Vismo to provide a UK based Client with access to a 24/7, EN50518:2019 compliant manned monitoring environment, including escalation of a red alert to UK Police Forces when required. Or the service offered by Vismo to provide a USA based Client with access to a 24/7, UL827 compliant manned monitoring environment, including escalation of a red alert to relevant US Public Service Access Points (PSAP) when required; |
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“Business Day” |
Monday to Friday, excluding public and bank holidays in the United Kingdom; |
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“Charges” |
the charges payable by the Client under this Agreement as set out in the Order; |
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“Client” |
the party specified as such in the Order; |
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“Commencement Date” |
the date specified as such in the Order; |
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“Competent Authority” |
any court, government body or regulatory authority having authority over or in respect of the Client or Vismo, including any branch, office or agency of any of them; |
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“Confidential Information” |
in relation to a party, the terms of the Agreement, and all other information and trade secrets relating to that party’s business or clients or the business or clients of its group companies, which come into the possession of the other party pursuant to this Agreement, whether orally, or in documentary, electronic or other form, including all (if any) information held by the other as of the Commencement Date; |
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“Data Protection Legislation” |
means (i) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) unless and until the GDPR is no longer directly applicable in the UK, together with any national implementing laws, regulations and secondary legislation as amended or updated from time to time in the UK, including the Data Protection Act 2018 (“DPA”); (ii) any successor legislation to the GDPR and the DPA; and (iii) any other directly applicable EU regulation relating to data protection and privacy; |
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“Equipment” |
the items of equipment listed in the Order and supplied as part of the Solution, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it; |
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“Initial Term” |
12 months; |
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“Insolvency Event” |
each and any of the following in relation to a party: (a) any action (corporate or otherwise), legal proceedings or other procedure or step being taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of a party (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction); (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of a party or any of its assets; (iii) the enforcement of any security over any assets of a party; or (iv) the expropriation, attachment, sequestration, distress or execution over or affecting any material asset of a party; (b) the party being unable to pay its debts as they fall due or being insolvent; and (c) the party entering into a composition or arrangement with its creditors or any class of them; |
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“Intellectual Property Rights” |
any and all patents, trade marks, trade names, service marks, copyright, moral rights, database rights, rights in design, rights in inventions, registered designs, trade, brand and business names, and any and all other intellectual property rights, whether or not registered or capable of registration and whether subsisting or anywhere in the world and including all applications and rights to apply for any of the same together with all or any goodwill relating to the same; |
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“Network” |
means a telecommunications system network operator; |
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“Order” |
an order in writing placed by the Client and accepted by Vismo in respect of the supply of the Solution, and signed by the parties; |
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“Renewal Term” |
has the meaning given to it in Clause 2; |
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“Rental Period” |
the period of hire of Equipment rented by the Client, as set out in the Order; |
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“Software” |
the smartphone tracking and/or mass notification software supplied and licensed by Vismo, including any associated documentation; |
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“Solution” |
a licence of the Software, the supply of the tracking or mass notification services and, where applicable the supply of Equipment, as specified in the Order; |
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“Specification” |
the specification for the Software set out at www.vismo.com as may be updated or upgraded by Vismo from time to time; |
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“Term” |
the Initial Term plus each Renewal Term; |
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“Vismo” |
Vismo Limited (CN 04315312) whose registered office is at Park House, Clifton Park, York, Yorkshire, YO30 5PB; and |
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“Warranty Period” |
has the meaning given to it in Clause 11.1. |
28.2 In this Agreement:-
28.2.1 references to “Clauses” are to Clauses of this Agreement;
28.2.2 references to any statute or statutory provision shall include any subordinate legislation made under it and shall be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time; and
28.2.3 “includes” or “including” shall be construed without limitation to the generality of the preceding words.
28.3 If there is a conflict or inconsistency between any provision contained in these terms of business and any provision contained in an Order (or any combination of those documents), the following descending order of precedence applies to the extent of the conflict or inconsistency:
28.3.1 the Order; and
28.3.2 these terms of business.
Appendix – Processing, Personal Data and Data Subjects
Subject matter of processing
1.1 The provision of the Solution by Vismo to the Client.
Duration of processing
2.1 The duration of the provision of the Solution to the Client.
Nature of processing
3.1 Vismo will have access to the Personal Data listed in sections 5.1 to 5.3 below to ensure the data subjects have access to the Solution.
3.2 Vismo may have access to Personal Data listed in sections 5.1 to 5.4 below as a result of providing technical and support services to the Client as part of the Solution, in which case Vismo will not actively process the Personal Data but may have incidental sight of the Personal Data only.
3.3 Vismo may access the Personal Data listed in sections 5.1 to 5.4 below in order to provide reports requested by the Client which may include incorporating Personal Data into the reports in accordance with the Client’s instructions.
Purpose of processing
4.1 Vismo processes the Personal Data for the purposes set out at sections 3.1 and 3.2 above.
Types of personal data
5.1 Full name
5.2 Email address
5.3 Phone number
5.4 Personal data collected by the Client as a results of the Client’s use of the Solution including geolocation data
Categories of data subject
6.1 Users of the Solution which will usually be employees, contractors and other workers of the Client
Obligations and rights of the Controller
7.1 The obligations and rights of the Client as set out in the Data Protection Legislation and this agreement.