1: INTRODUCTION

1.1 The following definitions and rules of interpretation apply in these Conditions:

• “Add-Ons” means any specific additional service options which You may wish to add to the
  Subscription from time to time in accordance with clause 2.4 of these Terms of Use .
• “Business Day” means a day, other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
• “Content” the moving images, still images, audio, graphics, text and other information created by You and uploaded via the Software to the Online Services.
• “Contract Start Date” means the date stated on the Order Form when the contract for the provision of VIV by Us to You commences.
• “Customer” means the customer stated on the Order Form.
• “Dealer Group” means the party named on the Order Form as being the Dealer Group, being a company or other entity who operates one or more Retailers.
• “Direct Debit Form” the direct debit form attached to the Order Form.
• “Fees” means the Set-Up Fees and Monthly Fees set out in the Order Form.
• “Minimum Term” means the minimum length of a Subscription specified in the Order Form, measured from the Contract Start Date and which shall apply to all subsequent renewals of a Subscription pursuant to clause 5,1.
• “Monthly Fees” means the monthly fees payable by You for the Subscription as stated on the Order Form.
• “Online Services” means the customer dashboard and interactive services relating to VIV (and associated reports) provided or issued by VIV from time to time.
• “Order Form” means the completed order form signed by Us and You and attached to these Terms of Use.
• “Order Items” the individual items listed on the Order Form.
• “Policies and Procedures” the various factsheets and policy documents either provided from Us to You or made available to You by Us from time to time and as updated by Us from time to time in accordance with these Terms of Use.
• “Sales Team” the individual or individuals employed or contracted by You from time to time (or, if you are a Dealer Group, employed or contracted by the relevant Retailer from time to time) to provide sales services to end customers and who have been given access to VIV by You on an electronic device in order to provide such sales services.
• “Set-up Fees” the set-up fee charged by us for setting up the Software for You as stated on the Order Form.
• “Special Terms” means any special terms agreed between Us and You as stated on the Order Form.
• “Retailer” the franchised or independent dealer(s) identified on the Order Form and being part of the Dealer Group.
• “Software” the Vehicles In Video Limited (VIV) video application.
• “Subscription” access to the Software and Online Services subject to payment of the Fees.
• “Terms of Use” means these terms and conditions for the provision of the Software and Online Services.
• “VIV” means the Software and Online Services supplied by Us pursuant to these Terms of Use.
• “We” or “Us” refers to Vehicles In Video Limited a company incorporated under the Companies Acts in Scotland (registered number SC627759) and having its registered office at 3rd Floor, 26 Howe Street, Edinburgh, Scotland, EH3 6TG.
• “You” refers to the Customer named on the Order Form (“our” and “your” should be interpreted accordingly).

1.2 In these Terms of Use clause headings shall not affect the interpretation of these Terms of Use.

1.3 In these Terms of Use reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 In these Terms of Use reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 In these Terms of Use, unless the context otherwise requires, words in the singular shall include the plural and word in the plural shall include the singular.

1.6 In these Terms of Use, unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 In these Terms of Use a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time.

1.8 In these Terms of Use reference to writing or written excludes fax but includes email.

1.9 In these Terms of Use any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.10 In these Terms of Use references to clauses are to the clauses of these Terms of Use.

1.11 In these Terms of Use any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.12 In these Terms of Use reference to a “party” shall mean either You or Us (as the context shall determine) or the “parties” shall mean both You and Us.

2. CONTRACT FORMATION

2.1 We will supply the Order Items to You in accordance with the Order Form, these Terms of Use and any applicable Policies and Procedures.

2.2 By signing an Order Form (or giving Us other forms of express written authority to proceed) You agree to purchase the Subscription(s) to VIV from Us and to pay the Fees to Us, as set out in the Order Form subject to these Terms of Use. Your Subscription will begin on the Contract Start Date.

2.3 If you are a Dealer Group ordering Subscriptions on behalf of the Retailers in your group, the term and terminations provisions in clause 5.1 will apply to your Subscription.

2.4 You may order Add-Ons by giving us express instructions in writing. If you order AddOns for a Subscription and We agree to provide the Add-Ons, the term and termination provisions in clause 5.1 will apply to those agreed Add-Ons.

3. USE OF VIV

3.1 For the duration of your Subscription, we hereby grant you a non-exclusive licence to use VIV and to view and distribute Content through VIV online and nowhere else.

3.2 Your use of VIV is subject to the following restrictions:-

(a) You shall not copy, adapt, modify, reverse engineer, decompile or disassemble the Software either in whole or in part;
(b) You shall not sub-licence, assign or novate the benefit of these Terms of Use; and
(c) You shall not examine, nor shall You permit any third party access to VIV to examine, any part of VIV for the purpose of developing any competing product

3.3 We are the owner or licensee of the patent, copyright, trademarks, trade secrets and all other intellectual property rights that subsist in the Software, Online Services and training material provided by Us. Title to the Software and the Online Services and the VIV brand shall remain vested in Us or our licensors. Any rights not expressly granted herein are reserved by Us.

3.4 If You provide Us with any software, material or other documentation for Us to use as part of our provision of VIV (“Client Material”), You will ensure We have the necessary rights to use such Client Material and You shall defend and settle any claim made against Us alleging that our use of Client Material infringes the intellectual property rights (or any other rights) of a third party.

3.5 You are solely responsible for the Content. You will ensure that no individual appears in the Content without their explicit consent. You are responsible for obtaining consent from any individuals who may appear within the Content. You shall ensure that Content is appropriate for the purposes of your business and shall not contain anything that infringes third party rights or is inappropriate, defamatory, offensive or otherwise unacceptable in Our reasonable opinion. We reserve the right to remove any Content that infringes third party rights or is inappropriate, defamatory, offensive or otherwise unacceptable in Our reasonable opinion. You agree to defend and hold Us harmless from and against against any claim by any third party claiming that Content uploaded by You breaches any UK or foreign laws or regulations or is illegal, defamatory or infringes any third party rights.

3.6 You agree to comply with all applicable laws and regulations in relation to your business and your use of VIV.

3.7 We shall provide you with VIV, and You shall be entitled to use VIV, in terms of these Terms of Use and You will not provide access to the Software or the Online Services to any third party without Our express written consent.

4. PAYMENT OF FEES

4.1 Unless set out in the Special Terms, Your first invoice will be sent by Us following the Contract Start Date and will contain the Fees for the Order Items listed on the Order Form.

4.2 You shall pay the Fees, together with any applicable taxes, in accordance with the payment terms set out on the Order Form and the invoices submitted by Us to You.

4.3 If we have requested that You pay the Monthly Fees by direct debit You will complete the Direct Debit Form and submit this to Us in writing. You will promptly notify us of any change to your bank account details and promptly complete and submit to Us in writing a new Direct Debit Form in the event any change in your bank account details.

4.4 If You do not pay an invoice from Us by the due date for payment stated on the invoice then:

4.4.1 We may suspend your access to VIV without notice; and

4.4.2 We will charge You, and You will pay, interest on the overdue sum from the due date for payment of same until the date of payment of the same in full, at the rate of 4%per annum above The Royal Bank of Scotland plc base rate from time to time.

4.5 Your Subscription is for the current version of VIV as at the date of the Order Form. After the initial Minimum Term, We may adjust our Fees upwards to reflect updates and developments to VIV which We will make available to you. We will give You no less than three (3) months notice in writing of any increase to our Fees prior to the end of the Minimum Term (and any subsequent Minimum Term if your Subscription is extended in terms of clause 5.1 of these Terms of Use) provided that We may only increase Fees once in any Minimum Term period.

5. TERM AND TERMINATION

5.1 Each Subscription shall, unless terminated in accordance with clauses 5.2 or 11.1 or 11.5,
continue for the Minimum Term. Upon expiry of the initial Minimum Term, the Subscription
shall automatically renew thereafter for further Minimum Terms, unless either party gives
to the other party three (3) months written notice to terminate the Subscription prior to the end of either the initial Minimum Term or the then current Minimum Term (as the case may be).

5.2 Either party may terminate Your Subscription at any time if the other party: (a) commits a material breach of these Terms of Use and, in the case of a breach capable of remedy, fails to remedy it within thirty (30) days of being asked in writing to do so by the other party; or (b) becomes insolvent, or bankrupt, or enters into any voluntary arrangement with its creditors, or ceases or threatens to cease to carry on its business.

5.3 For Dealer Groups, We recognise that acquisitions and divestments may occur from time to time and We will work with You in such circumstances to agree on the most appropriate course of action which may result in assignment or termination of the affected Subscription. You agree you shall not unreasonably request termination of a Subscription in such circumstances.

5.4 If your Subscription is terminated for whatever reason, any arrears of Fees due as at the date of such termination shall be payable immediately by You to Us.

5.5 On termination of your Subscription You, or if you are a Dealer Group You and your Retailers, will no longer be able to access your Content via the Online Services and all updates and technical support pursuant to clause 6 below shall cease forthwith to be provided by Us

6. UPDATES AND TECHNICAL SUPPORT

6.1 Subject to clause 7, during your Subscription we will make available to You technical support in accordance with any applicable support Policies and Procedures.

6.2 Any updates to the Software will be provided directly to the Sales Team provided that the Sales Team have automatic updates enabled on their individual devices. If the Sales Team do not have automatic updates enabled on their device then the Sales Team can obtain updates by manually accessing their preferred app store and selecting the “update” button. You shall ensure that You and the Sales Team install all updates as soon as reasonably practicable to ensure You and the Sales Team are using the most up to date version of VIV from time to time while your Subscription is continuing.

6.3 If We make any substantial changes to the Software We will advise you through any reporting arrangements we have agreed with you in writing from time to time.

7. WARRANTY

7.1 We warrant that all elements of VIV will function in accordance with:- (i) the
description on the Order Form; and (ii) the applicable Policies and Procedures as at the
Contract Start Date.

7.2 We do not warrant that the operation of VIV will be uninterrupted or error free.

7.3 The warranty set out in clause 7.1 does not apply to any defect or fault resulting from:- (a) You (or those for whom you are responsible) having amended the Software or having used it outside the terms of these Terms of Use for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by Us; or (b) any external causes, including (without limitation) any service or modifications not performed by Us.

7.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into these Terms of Use or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

8. LIMITATIONS AND EXCLUSIONS OF LIABILITY

8.1 Nothing in these Terms of Use excludes or limits Our liability for :- (i) fraud or fraudulent misrepresentation; (ii) personal injury or death caused by our negligence; or (iii) any other liability that cannot be excluded by law.

8.2 Subject to clause 8.1, We will not be liable for any losses or damages or consequential loss, damage or legal fees which may be suffered by You, whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, delict (including negligence) or otherwise resulting from :- (i) loss of, damage to or corruption of data; (ii) loss of use; (iii) loss of profits; (iv) loss of anticipated savings; (v) loss of goodwill; (vi) loss of business opportunity; (vii) wasted expenditure; and/or (v) any indirect or consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen.

8.3 Except as provided in clauses 8.1, Our total liability to You, whether in contract, delict (including negligence) or otherwise and whether in connection with Your current Subscription or any collateral contract, shall in no circumstances exceed a sum equal to the aggregate of the Fees paid and payable by You to Us during the twelve months immediately preceding the date of Your claim against Us.

8.4 Our employees, sub-contractors, licensors and suppliers from time to time shall have
the benefit of the limits and exclusions of liability set out in this clause 8.

8.5 You agree that, in entering into these Terms of Use, either You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in these Terms of Use or, if You did rely on any representations, (whether written or oral, not expressly set out in these Terms of Use) that You shall have no remedy in respect of such representations and (in either case) We shall have no liability in any circumstances otherwise than in accordance with the express terms of these Terms of Use.

9. CONFIDENTIALITY

9.1 Each party undertakes that it shall not at any time disclose to any third party any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs.

9.2 Each party may disclose the other party’s confidential information:-

9.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these Terms of Use. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms of Use.

10. DATA PROTECTION

10.1 Each party shall comply with its obligations under any applicable data protection legislation (including but not limited to the Data Protection Act 2018, the UK retained version of the General Data Protection Regulation 2016/679 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended from time to time (“Data Protection Legislation”) Information on how we treat Your personal data is contained within our privacy policy which can be found at https://www.vehiclesinvideo.com/privacy-policy/.

10.2 In the event of any third party claim against Us arising from Your breach or failure to comply with your obligations in regard to relevant Data Protection Legislation, You agree to defend Us and hold Us harmless from and against any fines, claims, costs and damages that We might be required to pay to any third party by a court of competent jurisdiction or regulatory body.

11. GENERAL

11.1 Neither party shall be liable for any delay or failure in performing any of its obligations under these Terms of Use if the delay or failure is caused by factors outside the reasonable control of the party concerned provided that such affected party provides written notice (as soon as reasonably practicable) to the other party stating the nature of the delay and the expected period of the delay. If the period of delay or nonperformance continues for a period of four (4) weeks, the party not affected may terminate these Terms of Use by giving ten (10) Business Days’ written notice to the affected party.

11.2 If any provision of these Terms of Use is or becomes invalid, illegal or unenforceable, it shall be deemed deleted from these Terms of Use but that shall not affect the validity and enforceability of the rest of these Terms of Use.

11.3 A waiver of any right or remedy under these Terms of Use is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy under these Terms of Use. No waiver, failure or delay of either party in the exercise of any right under these Terms of Use shall prevent or restrict such party from exercising that right in the future.

11.4 Unless it expressly states otherwise, these Terms of Use do not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party (including Retailers) to enforce or otherwise invoke any term of these Terms of Use.

11.5 No variation of these Terms of Use shall be effective unless it is in writing and signed by the parties (or their authorised representatives) If we make any change to VIV that has the effect of materially reducing the functionality of VIV or which imposes additional obligations on You which You are unable to comply with, you shall be entitled to terminate your Subscription by providing five (5) Business Days’ notice to Us in writing without penalty, and any Monthly Fees paid by you in respect of the Subscription period after the date of such termination shall then be refunded to You by Us.

11.6 Any notice given to a party under or in connection with these Terms of Use shall be in writing (including email) and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place. Any notice shall be deemed to have been received:

11.6.1 if delivered by hand at the time the notice is left at the proper address;
11.6.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
11.6.3 if sent by email, at the time of transmission, or, if this time falls outside normal business hours (which shall mean between the hours of 09:00 to 17:00 on a Business Day) in the place of receipt, when business hours resume. This clause 11.6 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute
resolution.

11.7 The Order Form and these Terms of Use constitutes the entire agreement and understanding (whether written or oral) between the parties regarding the subject matter thereof and supersedes and extinguishes any prior agreement (written or oral) between the parties regarding such subject matter.

11.8 These Terms of Use and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of Scotland.

11.9 Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms of Use or their subject matter or formation.