Terms & Conditions

VISIBLY TERMS OF SERVICE ("TERMS")

Last updated 13 June 2025

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Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Terms and Conditions:

Assets: the number of assets set out on the Order Form.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 3.3(b).

Back-up Policy: means Visibly’s back-up policy as in force from time to time.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Compliance Records: the number of compliance records set out on the Order Form.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.1.

Contract: the legally binding contract between the Customer and Visibly, comprising of the Order Form and these Terms and Conditions.

Customer Data: the data inputted by the Customer, Authorised Users, or Visibly on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Documentation: the documents and other materials made available to the Customer by Visibly online via www.visiblyhq.com or such other web address notified by Visibly to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date that the Order Form is signed by the Customer.

Fees: the Implementation Fees and the Subscription Fees.

Force Majeure Event: means events, circumstances or causes beyond Visibly’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Visibly or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, pandemic or epidemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm.

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not Visibly) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Implementation Fees: the implementation fees payable by the Customer to Visibly for the Implementation Services, as set out in the Order Form.

Implementation Services: the setup, configuration, training, and related services provided by Visibly to assist the Customer with initial deployment and use of the Subscription Services.

Initial Term: the initial term of the Contract, commencing from the Subscription Start Date for such period as is set out in the Order Form (unless terminated earlier in accordance with the Contract).

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Order Form: means the Order Form document setting out the details of the Services to be provided and the Fees payable, which references these Terms and Conditions and which is signed by the Customer.

Qualifying Claim: means a claim in respect of: (a) a breach of clause 8 (Data Protection); or (b) a breach of clause 13 (Confidentiality).

Renewal Term: the period described in clause 16.1.

Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

Visibly: Visibly Tech Limited incorporated and registered in England and Wales with company number 13684183 whose registered office is at 69 Church Way, North Shields, England, NE29 0AE.

Services: means the Implementation Services and the Subscription Services.

Software: the online software applications provided by Visibly as part of the Services.

Subscription Fees: the subscription fees payable by the Customer to Visibly for the Subscription Services, as set out in the Order Form.

Subscription Services: the subscription services provided by Visibly to the Customer under an Order Form and these Terms and Conditions via https://app.visiblyhq.com or any other website notified to the Customer by Visibly from time to time, as more particularly described in the Documentation.

Subscription Start Date: the subscription start date set out on the Order Form.

Subscription Term: means the Initial Term together with any Renewal Terms.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

Workers: the number of workers set out on the Order Form.

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1.2 Clause headings shall not affect the interpretation of these Terms and Conditions.

1.3 A reference to:

(a) a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns;

(b) a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;

1. is a reference to it as it is in force as at the date of the Contract; and

2. shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision; and

(d) writing or written excludes faxes but includes e-mail.

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Implementation Services
1. Visibly shall provide the Implementation Services with reasonable skill and care.
2. Visibly shall use reasonable endeavours to meet any performance dates agreed in writing with the Customer but any such dates shall be estimates only, and time shall not be of the essence of the Contract.
3. Where Visibly is migrating any data for the Customer, Visibly shall use reasonable efforts to ensure the accurate migration of any data, but gives no warranties as to the completeness or accuracy of such migration. The Customer shall be responsible for checking the accuracy and completeness of the migrated data and shall promptly give sufficient details to Visibly of any inaccuracies or omissions in order to permit Visibly to correct them. If such data includes personal data, Visibly shall return all copies of such personal data to the Customer on completion of the data migration process.
Use Restrictions
1. Subject to the Customer paying the applicable Subscription Fees and complying with these Terms and Conditions, Visibly hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Subscription Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
2. The Customer acknowledges and agrees that the maximum number of Workers, Assets and Compliance Records that will be stored through the Services shall not exceed the number of Workers, Assets and Compliance Records set out on the Order Form.
3. In relation to the Authorised Users, the Customer undertakes that:
  1. each Authorised User shall keep a secure password for their use of the Services and Documentation, and shall keep their password confidential;
  2. it shall maintain a written, up to date list of current Authorised Users and provide such list to Visibly within five (5) Business Days of Visibly's written request at any time or times;
  3. it shall permit Visibly or Visibly's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with the Contract. Each such audit may be conducted no more than twice per year, at Visibly's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
  4. if any of the audits referred to in clause 3.3(c) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Visibly's other rights, the Customer shall promptly disable such passwords and Visibly shall not issue any new passwords to any such individual;
  5. if any of the audits referred to in clause 3.3(c) reveal that the Customer has underpaid Subscription Fees to Visibly, including where the number of Workers, Assets or Compliance Records exceeds the agreed amount, then without prejudice to Visibly's other rights, the Customer shall pay to Visibly an amount equal to such underpayment as calculated in accordance with the rates set out in the Order Form; and
  6. it shall be responsible for any Authorised User’s breach of the Contract.
4. The Customer shall not access, store, distribute or transmit any Viruses in its use of the Services, and it shall not access, store, distribute or transmit any material during the course of its use of the Services that:
  1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
  2. facilitates illegal activity;
  3. depicts sexually explicit images;
  4. promotes unlawful violence;
  5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  6. is otherwise illegal or causes damage or injury to any person or property,

and Visibly reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.

The Customer shall not:
1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms and Conditions:
  1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
  2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or
2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
3. use the Services and/or Documentation to provide services to third parties; or
4. subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; or
6. introduce, or permit the introduction of, any Virus or Vulnerability into the Services or Visibly's network and information systems.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Visibly.
The rights provided under this clause 3 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

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Additional Workers, Assets and Compliance Records
1. If the Customer wishes to use the Services to process Workers, Assets and Compliance Records in excess of the amount agreed in the Order Form, the Customer shall notify Visibly in writing in advance. Visibly shall evaluate such request and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld).
2. If Visibly approves the Customer’s request, the Fees shall automatically be adjusted to reflect the increase in Workers, Assets and/or Compliance Records. Visibly shall notify the Customer in writing of the revised Fees applicable for the additional Workers, Assets and/or Compliance Records.
3. The revised Fees for any additional Workers, Assets and/or Compliance Records shall be payable by the Customer on a monthly basis in advance. Visibly shall issue the Customer an invoice for the relevant proportion of the revised Fees, calculated from the date the additional Workers, Assets and/or Compliance Records are approved which shall be due and payable on receipt of invoice and thereafter the revised Fees shall be payable on Visibly’s standard monthly invoicing cycle in accordance with clause 11.2.
Subscription Services
1. Visibly shall, during the Subscription Term, provide the Subscription Services and make available the Documentation to the Customer on and subject to the terms of the Contract.
2. Visibly shall use commercially reasonable endeavours to make the Subscription Services available 24 hours a day, seven days a week, except for planned maintenance carried out outside of Normal Business Hours and unscheduled maintenance performed strictly as necessary.
3. Visibly will, as part of the Subscription Services, provide the Customer with Visibly's standard customer support services during Normal Business Hours in effect at the time that the Subscription Services are provided. Visibly shall have no obligation to provide any support services under the Contract outside of Normal Business Hours or where faults or support requests arise from: (a) misuse, incorrect or unauthorised use of the Software and/or Services; (b) failure of the Customer’s hardware or software or any part of it; (c) use of the Software and/or Services other than in accordance with guidance provided by, or in combination with any hardware or software not approved by Visibly; (d) any breach of the Customer’s obligations under the Contract.
4. To the extent that the Services and/or Software comprises third-party software or products (“Third-Party Elements”), Visibly shall provide such Third-Party Elements to the Customer under the standard licence terms provided by the relevant third party. Visibly is not responsible in any way for the performance, features or failures of the Third-Party Elements and makes no warranty in respect of them being fit for the Customer’s purposes and accepts no liability or responsibility for them, or the Customer’s use or inability to use them, their accuracy or reliability or for any loss or damage (direct, indirect, special, consequential or otherwise) whatsoever that may arise from the Customer’s use of them or the results obtained.
Suspension of services
1. Visibly may suspend Services without liability if:
  1. Visibly reasonably believes that the Services are being used in breach of clause 3 or clause 4 and such suspension may be actioned without prior notice, although Visibly shall provide notice following the suspension which shall provide its reasons for the suspension;
  2. Visibly reasonably believes that the Customer is otherwise in breach of Contract and:
    1. where the breach relates non or late payment, the Customer does not remedy the breach within 7 days; and
    2. in respect of all other breaches (subject always to the generality of clause 6.1(a)), the Customer fails to remedy such breach within fourteen days of Visibly’s written notice to the Customer describing the breach;
  3. the Customer doesn’t co-operate with Visibly’s reasonable investigation of any suspected violation of the Contract;
  4. there is an attack on the Services or the Services are accessed by or manipulated by a third party without Visibly’s consent;
  5. Visibly is required by law to suspend the Services or the Customer’s access to the Services;
  6. there has been unauthorised or suspected fraudulent or suspicious activity relating to the Customer’s use of the Services; or
  7. there is another event for which Visibly reasonably believe that suspension of the Services is necessary to protect its or any other party’s network, system, the Services or other customers.
2. Visibly will use reasonable endeavours to give the Customer advance notice of a suspension under this clause 6, unless clause 6.1(a) applies or unless Visibly determines in its reasonable commercial judgement that an immediate suspension is necessary to protect Visibly or its customers from imminent and significant operational or security risk, or if to do so would be unlawful.
3. For the avoidance of doubt, any suspension of Services, unless caused directly by Visibly, shall not suspend the Customer’s obligation to pay any Fees.
Third party providers
1. The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Visibly makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Visibly. Visibly recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Visibly does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
Data protection

If Visibly processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the parties record their intention that the Customer shall be the data controller and Visibly shall be a data processor and in any such case the parties shall comply with the Data Processing Schedule.

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Visibly's obligations
1. Visibly shall perform the Services, in all material respects, in accordance with the Documentation and with reasonable skill and care.
2. Visibly's obligations at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Visibly's instructions, or modification or alteration of the Services by any party other than Visibly or Visibly's duly authorised contractors or agents. If the Services do not conform with the terms of clause 9.1, Visibly will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.
3. The Customer acknowledges that the Services may not be able to be performed adequately where information provided by the Customer to Visibly is incomplete, incorrect, or misleading.
4. The Customer acknowledges that the Services have not been developed to meet the Customer’s individual requirements and that it is therefore the Customer’s responsibility to ensure that the facilities and functions of the Services meet the Customer’s requirements prior to committing to the Subscription Term.
5. Visibly does not warrant that:
  1. the Customer's use of the Services will be uninterrupted or error-free; or
  2. the Services or underlying Software will meet the Customer’s requirements;
  3. the Services will be free from Vulnerabilities or Viruses; or
  4. the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
6. Visibly is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7. Visibly warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
8. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Visibly shall be for Visibly to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Visibly in accordance with the archiving procedure described in its Back-Up Policy. Visibly shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Visibly to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
9. The Customer acknowledges that Visibly may change or modify the Services from time to time. Visibly shall only be required to provide the Customer with reasonable notice of a change or modification to the Services in advance if the change or modification is material (and does not extend or enhance the functionality or architecture of the Services) or may substantially adversely affect the Customer’s use of the Services. In such circumstances, “reasonable notice” shall be considered not less than 30 days. Following receipt of such notice (the “Change Notice”), the Customer shall have 14 days within which it can elect (by written notice) not to accept such change or modification. If the Customer gives notice within the prescribed window that it does not accept the change or modification, then the Contract shall terminate at the end of the 30-day notice period given in the Change Notice.
Customer's obligations
1. The Customer shall:
  1. provide Visibly with all necessary co-operation in relation to the Contract and all necessary access to such information as may be reasonably required by Visibly in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
  2. without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under it;
  3. carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Visibly may adjust any agreed timetable or delivery schedule as reasonably necessary and Visibly shall not be liable for any failure to deliver any or all of the Services to the extent caused by Customer’s delay;
  4. ensure that the Authorised Users use the Services and the Documentation in accordance with the Contract and shall be responsible for any Authorised User's breach of the Contract;
  5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Visibly, its contractors and agents to perform their obligations under the Contract, including without limitation the Services;
  6. ensure that its network and systems comply with the relevant specifications provided by Visibly from time to time; and
  7. be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Visibly's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
2. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
3. The Customer acknowledges and agrees that whilst the Services are designed for ease of use, it is the Customer’s responsibility to ensure that any Authorised Users involved in accessing and using the Services are appropriately trained in the use of any applicable technology and understand and are familiar with the Services and any training materials or Documentation made available to the Customer relating to them.
Fees and payment
1. In consideration of the provision of the Services, the Customer shall pay Visibly the Fees. All Fees must be paid in accordance with the Order Form and this clause 11.
2. The Customer shall on or before the Effective Date provide to Visibly valid, up-to-date and complete credit card details or approved purchase order information acceptable to Visibly and any other relevant valid, up-to-date and complete contact and billing details. The following payment terms shall apply:
  1. If the Customer provides its credit card details to Visibly, the Customer hereby authorises Visibly to charge such credit card:
    1. on the Effective Date, for the Implementation Fees and the first monthly payment in respect of the Subscription Fees; and
    2. monthly in advance for the Subscription Fees applicable to each subsequent month.
  2. If the Customer provides its approved purchase order information to Visibly, Visibly shall invoice the Customer:
    1. on the Effective Date, for the Implementation Fees and the first monthly payment in respect of the Subscription Fees which shall be due and payable within seven (7) days of date of invoice, unless otherwise agreed by Visibly in writing; and
    2. monthly in advance for the Subscription Fees applicable to each subsequent month which shall be due and payable in advance of the month to which the Subscription Fee relates.
3. If Visibly has not received payment by the due date for payment, and without prejudice to any other rights and remedies of Visibly:
  1. Visibly may without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Visibly shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
  2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
4. All amounts and Fees stated or referred to in the Contract:
  1. shall be payable in pounds sterling;
  2. are non-cancellable and non-refundable;
  3. are exclusive of value added tax, which shall be added to Visibly's invoice(s) at the appropriate rate.
5. Visibly shall be entitled to increase the Subscription Fees at the start of each Renewal Term upon 60 days' prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
Proprietary rights
1. The Customer acknowledges and agrees that Visibly and/or its licensors own all intellectual property rights in the Software, Services and the Documentation. Except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
2. Visibly confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
Confidentiality
1. Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party's Representatives in connection with the provision of the Services, including but not limited to:
  1. any information that would be regarded as confidential by a reasonable business person relating to the business, assets, affairs, customers, clients, suppliers, operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;
  2. any information developed by the parties in the course of performing the Services and the parties agree that:
    1. details of the Services, the results of any performance, security, penetration, Vulnerability or other logical, analytical, data or information gathering tests carried out on the Services, shall constitute Visibly Confidential Information; and
    2. Customer Data shall constitute Customer Confidential Information.
2. The provisions of this clause shall not apply to any Confidential Information that:
  1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
  2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
  3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
  4. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
3. Each party shall keep the other party's Confidential Information secret and confidential and shall not:
  1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract (the Permitted Purpose); or
  2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 13.
4. A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
  1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
  2. at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause 13.
5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
6. A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
7. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in these Terms and Conditions are granted to the other party, or to be implied from these Terms and Conditions.
8. Except as expressly stated in these Terms and Conditions, no party makes any express or implied warranty or representation concerning its Confidential Information.
9. The above provisions of this clause 13 shall continue to apply after termination or expiry of the Contract.
Indemnity
1. The Customer shall indemnify and hold harmless Visibly against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
  1. the Customer is given prompt notice of any such claim;
  2. Visibly provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
  3. the Customer is given sole authority to defend or settle the claim.
2. Visibly shall defend the Customer against any claim that the Customer's use of the Services or Documentation in accordance with the Contract infringes any third party United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
  1. Visibly is given prompt notice of any such claim;
  2. the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Visibly in the defence and settlement of such claim, at Visibly's expense; and
  3. Visibly is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Visibly may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on five (5) Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
4. In no event shall Visibly, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
  1. a modification of the Services or Documentation by anyone other than Visibly; or
  2. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Visibly; or
  3. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Visibly or any appropriate authority; or
  4. the Customer Data; or
  5. the Customer's breach of the Contract.
5. The foregoing and clause 15.3(b) state the Customer's sole and exclusive rights and remedies, and Visibly's (including Visibly's employees', agents' and sub-contractors') entire obligations and liability, for infringement or alleged infringement of any third party patent, copyright, trade mark, database right or right of confidentiality by Visibly.
Limitation of liability
1. Except as expressly and specifically provided in the Contract:
  1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Visibly shall have no liability for any damage caused by errors or omissions in any Customer Data, information or instructions provided to Visibly by the Customer in connection with the Services, or any actions taken by Visibly at the Customer's direction;
  2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract;
  3. the Services and the Documentation are provided to the Customer on an "as is" basis;
  4. under no circumstances shall Visibly be responsible or liable for: (a) any inaccuracy, error or delay in, or omission of any data or information entered into the Services by the Customer or any third party; (b) any error or delay in the transmission of such data or information; or (c) any interruption in any such data or information.
2. Nothing in the Contract excludes the liability of Visibly:
  1. for death or personal injury caused by such party’s negligence;
  2. for fraud or fraudulent misrepresentation;
  3. any other loss that cannot be excluded by law.
3. Subject to clause 15.1 and clause 15.2:
  1. Visibly shall have no liability to the Customer for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information (except to the extent attributable to that party’s negligence or breach of Contract), or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses; and
  2. Visibly’s total aggregate liability to the Customer in respect of all breaches occurring within any contract year shall not exceed the cap.
4. In clause 15.3(b):
  1. The cap is 100% of the total Fees paid or payable in the contract year in which the breaches occurred;
  2. A contract year means a 12 month period commencing on the Subscription Start Date or any anniversary of it.
5. References to liability in this clause 15 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
6. Nothing in the Contract excludes the liability of the Customer for any breach, infringement or misappropriation of Visibly’s Intellectual Property Rights.
Term and termination
1. The Contract shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Term), unless:
  1. either party notifies the other party of termination, in writing, at least 28 days before the end of the Initial Term or any Renewal Term, in which case this Contract shall terminate upon the expiry of the Initial Term or Renewal Term; or
  2. otherwise terminated in accordance with the provisions of this Contract,

and the Initial Term together with any subsequent Renewal Terms shall constitute the Subscription Term.

Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
1. the other party commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
4. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
7. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2(b) to clause 16.2(i) (inclusive);
11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
12. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
Without affecting any other right or remedy available to it, Visibly may terminate the Contract with immediate effect by giving written notice to the Customer if:
1. the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
2. the Customer breaches clause 3.4 and/or clause 3.5 of these Terms and Conditions; or
3. there is a change of control of the Customer within the meaning of section 1124 of the Corporation Tax Act 2010.
On termination of the Contract for any reason:
1. all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
3. Visibly may destroy or otherwise dispose of any of the Customer Data in its possession unless Visibly receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Visibly shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Visibly in returning or disposing of Customer Data; and
4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
If the Contract is terminated prior to the end of the Initial Term or any Renewal Term, other than for breach by Visibly under clause 16.2(a), all fees payable up to the end of the Initial Term or any Renewal Term and all other fees due and payable to Visibly under the Contract shall be immediately due and payable to Visibly.

Force majeure

Visibly shall not be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six (6) weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 14 days’ written notice to the affected party.

Notices
1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
  1. 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 of business (in any other case); or
  2. sent by email to the email addresses set out in the Order Form (or an address substituted in writing by the party to be served):
2. Any notice shall be deemed to have been received:
  1. if delivered by hand, at the time the notice is left at the proper address;
  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
  3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
3. This clause 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.
Assignment
1. The Customer shall not, without the prior written consent of Visibly, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
2. Visibly may at any time:
  1. Subcontract any or all of its rights and obligations under the Contract, provided that it shall be responsible for the acts and omissions of its sub-contractors as if they were the acts and omissions of Visibly; and
  2. subject always to clause 19.2(a), assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
Entire agreement
1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
4. Nothing in this clause shall limit or exclude any liability for fraud.
General
1. The Customer allows Visibly to make it known, for marketing purposes, that the Customer is a customer of Visibly and permits Visibly to use the Customer’s then current logo and name on the Visibly web site. Visibly may from time to time collaborate with the Customer to produce and publish testimonials, endorsements, case studies and other instances of advocacy, for the purposes of marketing, which the Customer shall have the right to review, amend and/or approve before publication. Visibly will make reasonable efforts to inform the Customer when and where the publications occur. Whilst Visibly will use its best endeavours to ensure best practice, Visibly cannot be held liable for any inaccuracies or errors in either Visibly marketing materials or third-party marketing materials.
2. If there is an inconsistency between any of the provisions in the Order Form and these Terms and Conditions, the provisions in the Order Form shall prevail.
3. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
4. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
5. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
6. Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
7. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
8. If any provision or part-provision of the Contract is deemed deleted under clause 21.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
9. Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
10. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.
12. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

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DATA PROCESSING SCHEDULE

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Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation:
1. To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.
2. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Visibly is subject, which relates to the protection of personal data.
Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
EU Law: the law of the European Union or any member state of the European Union.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

DATA PROTECTION
1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This paragraph 1.1 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Visibly is the Processor. Appendix 1 sets out the scope, nature and purpose of processing by Visibly, the duration of the processing and the types of Personal Data and categories of Data Subject.
3. Without prejudice to the generality of paragraph 1.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Visibly and/or lawful collection of the Personal Data by Visibly on behalf of the Customer for the duration and purposes of the Contract.
4. Without prejudice to the generality of paragraph 1.1, Visibly shall, in relation to any Personal Data processed in connection with the performance by Visibly of its obligations under the Contract:
  1. process that Personal Data only on the documented written instructions of the Customer which are set out in Appendix 1 unless Visibly is required by Domestic Law or EU Law to otherwise process that Personal Data. Where Visibly is relying on Domestic Law or EU Law as the basis for processing Personal Data, Visibly shall promptly notify the Customer of this before performing the processing required by the Domestic Law or EU Law unless the Domestic Law or EU Law prohibits Visibly from so notifying the Customer;
  2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against 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, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
  3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
  4. not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
    1. the Customer or Visibly has provided appropriate safeguards in relation to the transfer;
    2. the data subject has enforceable rights and effective legal remedies;
    3. Visibly complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
    4. Visibly complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
  5. assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  6. notify the Customer without undue delay on becoming aware of a Personal Data Breach;
  7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Domestic Law or EU Law to store the Personal Data; and
  8. maintain complete and accurate records and information to demonstrate its compliance with this Schedule.
5. The Customer consents to Visibly appointing third-party processors of Personal Data under the Contract. Visibly confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Schedule and in either case which Visibly confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Visibly, Visibly shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this paragraph 1.2.
6. Either party may, at any time on not less than 30 (thirty) days’ notice, revise this Schedule by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

APPENDIX 1: PROCESSING, PERSONAL DATA AND DATA SUBJECTS

Processing by Visibly
1. Scope: Processing personal data to the extent required to provide the Services in accordance with the Contract
2. Nature and purpose of processing: Except for the administration of the Contract, the processing of personal data is entirely incidental to the service provision by Visibly and is limited to storage and authorized disclosure. No access of change to, or other processing of any personal data is carried out as part of the service provision other than as many be required on the Customer’s specific written instructions.
3. Duration of the processing: the duration of the service provision. Data is deleted or anonymised following termination of the Contract in accordance with its terms.
Types of Personal Data
1. Customer employee contact information for the administration of the Contract.
2. Other personal data may be included by the Customer and Authorised Users in any uploaded data to the Services.
Categories of Data Subject

The Authorised Users (which might consist of the Customer’s employees and subcontractors)

HOW CAN YOU CONTACT US ABOUT THESE TERMS?

If you have questions or comments about these Terms, you can contact us at:

Visibly Tech Limited
69 Church Way, North Shields, England NE29 0AE
Attention: Legal

Email: support@visiblyhq.com

CONFIDENTIAL & PROPRIETARY
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This document is exclusively for commercial use between Visibly, and Customer, and is considered Confidential Information according to the Terms, not to be disclosed to third-parties unless such disclosure is explicitly permitted under this Agreement.