VR Software Development Conditions

1.  DEFINITIONS AND INTERPRETATION 

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

“Applicable Laws” means:

(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.

(b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Talkout is subject.

“Applicable Data Protection Laws” means:

(a) 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.

(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Talkout is subject, which relates to the protection of personal data.

“Authorised Users” those employees, agents and independent contractors of the Customer who are authorised by the Customer to download and/or use the Software on the Equipment.

“Commencement Date” the date on which the Contract is signed by both parties unless otherwise agreed in writing by the parties.

“Completion Date” the estimated date set out in the Order Form or as otherwise agreed in writing by the parties by which Talkout is to supply the Software to the Customer.

“Conditions” these terms and conditions set out in clause 1 (Definitions and Interpretation) to clause 23 (Governing Law and Jurisdiction) (inclusive).

“Confidential Information” information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing and, for clarity, including (in the case of the Supplier’s information) information relating to the Software or any of its constituent parts and the Tools.

“Contract” the contract between the Customer and Talkout for the supply of the Software in accordance with the Order Form and these Conditions.

“Customer” the customer organisation referred to in the Order Form.

“Customer Data” means the data inputted by the Authorised Users, or Talkout  on the Customer’s behalf in connection with the Work including the Customer Personal Data.

"Customer Personal Data" any personal data which Talkout processes in connection with the Contract, in the capacity of a processor on behalf of the Customer.

“Defect” an error in Talkout Software that causes it to fail to operate substantially in accordance with the Specification.

“Documents” any documentation made available to the Customer and/or the Authorised Users by Talkout  which sets out a description of the Software and the user instructions for use of the Software.

“Equipment” the VR headsets supplied by Talkout to the Customer on which the Software shall be installed either by Talkout directly or by the Customer downloading the Software on to the Equipment.

“EU GDPR” the General Data Protection Regulation ((EU) 2016/679).

“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

“Licence” the licence granted under clause 6.

“Open-Source Software” any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Software, or with which the Software is compiled or to which it is linked.

“Order Form” the order form signed by the Customer and Talkout detailing the provision of the Software.

“Price” the aggregate price for the Work and the Licence as specified in the Order Form.

“Software” the software supplied or made available to the Customer under the Contract.

“Specification” the specification agreed in writing between the Customer and Talkout which sets out the Customer's requirements regarding the Software.

“Talkout” Talkout Holding Limited, a company incorporated in England and Wales under company number 12632046 and having its registered office at 4 Vicarage Road, Edgbaston, Birmingham B15 3ES.

“Talkout Personal Data” any personal data which Talkout processes in connection with the Contract, in the capacity of a controller.

“Talkout Software” the software and the Tools supplied or made available to the Customer under the Contract (other than the Third Party Software) as the same may be modified from time to time.

“Third Party Software” any Open-Source Software and any software programs proprietary to third parties supplied or made available to the Customer under the Contract.

“Tools” any tools and know-how developed, and methods invented, in the course of or as a result of carrying out the Work, whether or not developed or invented by Talkout alone or as a result of the input of the Customer or its Authorised Users and whether or not developed or invented specifically or used exclusively to carry out the Work.

“UK GDPR” has the meaning given to it in the Data Protection Act 2018.

“Work” the software development work to be carried out by Talkout (or its subcontractors) as referred to in the Order Form and/or the Specification together with all other works, duties and obligations to be carried out by Talkout (or its subcontractors) under the Contract.

1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.

1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.5 Any words following the terms including, include, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.  SCOPE   

2.1 Talkout grants the Licence and shall supply the Software, the Documents and the Work to the Customer in accordance with the Contract.

2.2 The supply under clause 2.1 and the Price are subject to the terms and conditions set out in the Contract.

3.  SOFTWARE

3.1 Talkout shall carry out the Work with reasonable diligence and despatch, and with reasonable skill and expertise, and shall use its reasonable endeavours to provide or make available the Software, in accordance with the Specification in all material aspects, by the Completion Date.

3.2 Talkout shall provide the Third-Party Software to the Customer under the standard licence terms provided by the relevant third parties and the Customer agrees to be bound to the relevant third parties by such licence terms.

4.  PAYMENT  

4.1 Talkout shall submit invoices in accordance with the Order Form. The Customer shall make payment of each invoice by the due date stated in that invoice or within 14 days of receipt of the invoice, whichever is later.

4.2 The Price is net of tax. The Customer shall, in addition, pay to Talkout the amount of any tax, duty or assessment, including any applicable VAT, which Talkout is obliged to pay and/or collect from the Customer in respect of any supply under the Contract.

4.3 If the Customer fails to make any payment due to Talkout under the Contract by the due date for payment, then, without limiting Talkout's remedies Talkout may charge interest on the amount outstanding from the due date to the date of receipt by Talkout (whether or not after judgment), at the annual rate of 8% per annum, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. Talkout reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

5.  OWNERSHIP 

5.1 The Intellectual Property Rights in the Software, the Tools and the Documents are, and shall remain, the property of Talkout or the appropriate third-party rights-owner(s), if any.

5.2 Talkout reserves the right to grant a licence to use the Software, the Tools or the Documents to any other party or parties, and the Customer acquires no rights in or to the Software or the Documents other than those expressly granted by the Contract.

6. SOFTWARE LICENCE

6.1 Talkout grants, subject to the terms of the Contract, the Customer the non-exclusive, irrevocable, perpetual, royalty-free right to use the Documents and the Talkout Software for its internal and external training purposes only.

6.2 The Customer shall ensure that its Authorised Users comply with the Media Use Conditions.

6.3 The Customer shall not sub-licence, rent, lend, assign or transfer the Contract or the Talkout Software to any person.

6.4 The Customer shall not allow access to the Talkout Software to any person other than the Authorised Users.

7.  CUSTOMER DATA 

7.1 For the purposes of this clause 7, the terms controller, processor, data subject, personal data, personal data breach and processingshall have the meaning given to them in the UK GDPR.

7.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.

7.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:

(a) Talkout shall act as controller of the personal data set out in paragraph 1.1 of Part 1 of Schedule 1;

(b) Talkout shall process the personal data set out in paragraph 1.2 of Part 1 of Schedule 1 as a processor on behalf of the Customer; and

7.4 Should the determination in clause 7.3 change, then each party shall work together in good faith to make any changes which are necessary to Schedule 1.

7.5 By entering into the Contract, the Customer consents to (and shall procure all required consents, from its Authorised Users) in respect of all actions taken by Talkout in connection with the processing of Talkout Personal Data.

7.6 Without prejudice to the generality of clause 7.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Talkout Personal Data and Customer Personal Data to Talkout and/or lawful collection of the same by Talkout for the duration and purposes of the Contract.

7.7 In relation to the Customer Personal Data, Part 2 of Schedule 1 sets out the scope, nature and purpose of processing by Talkout, the duration of the processing and the types of personal data and categories of data subject.

7.8 Without prejudice to the generality of clause 7.2 Talkout shall, in relation to Customer Personal Data:

(a) process that Customer Personal Data only on the documented instructions of the Customer, unless Talkout is required by Applicable Laws to otherwise process that Customer Personal Data. Where Talkout is relying on Applicable Laws as the basis for processing Customer Processor Data, Talkout shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Talkout from so notifying the Customer on important grounds of public interest. Talkout shall inform the Customer if, in the opinion of Talkout, the instructions of the Customer infringe Applicable Data Protection Laws;

(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are 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;

(c) ensure that any personnel engaged and authorised by Talkout to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Talkout), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Contract unless Talkout is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 7.8(f) Customer Personal Data shall be considered deleted where it is put beyond further use by Talkout; and

(g) maintain records to demonstrate its compliance with this clause 7 and allow for reasonable audits by the Customer or the Customer's designated auditor, for this purpose, on reasonable written notice.

7.9 The Customer hereby provides its prior, general authorisation for Talkout to:

(a) appoint processors to process the Customer Personal Data, provided that Talkout:

(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Talkout in this clause 7;

(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Talkout; and

(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Talkout's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Talkout for any losses, damages, costs (including legal fees) and expenses suffered by Talkout in accommodating the objection.

(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Talkout shall ensure that all such transfers are effected in accordance with Applicable Data Protection Law. For these purposes, the Customer shall promptly comply with any reasonable request of Talkout, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

7.10 Either party may, at any time on not less than 30 days' notice, revise clause 7.9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

8.  EXPORT TERMS

8.1 Neither party shall in any circumstances export, directly or indirectly, any technical data acquired from the other party under the Contract (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

8.2 Each party undertakes:

(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and

(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

9.  WARRANTY

9.1 Talkout warrants to the Customer that:

(a) the Talkout Software and Documents are proprietary to Talkout and that it has the rights to licence the Software and the Documents to the Customer; and

(b) the Talkout Software from the date of its delivery to the Customer and for 3 months after that date will perform in all material respects with the Specification.

9.2 The sole remedy for breach of the warranties under clause 9.1 shall be correction of Defects by Talkout within a reasonable time from notification by the Customer of the Defect that constitutes such breach.

9.3 The warranties set out in clause 9.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to the Contract. Without

limitation, Talkout specifically denies any implied or express representation that the Software will be fit:

(a) to operate in conjunction with any hardware items or software products other than the Equipment; or

(b) to operate uninterrupted or error-free.

9.4 Any unauthorised modifications, use or improper installation of the Software by, or on behalf of, the Customer shall render all Talkout's warranties and obligations under the Contract null and void.

9.5 Any Open-Source Software provided by Talkout may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to the disclaimer in clause 9.3.

10. LIMITATION OF LIABILITY   

10.1 Except as expressly and specifically provided in the Contract:

(a) the Customer assumes sole responsibility for results obtained from the use of the Software, and for conclusions drawn from such use. Talkout shall have no liability for any damage caused by errors or omissions in the Software; and

(b) 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.

10.2 Nothing in the Contract shall limit or exclude the liability of Talkout:

(a) for death or personal injury caused by Talkout’s negligence;

(b) for fraud or fraudulent misrepresentation; or

(c) for any matter in respect of which it would be unlawful to limit or exclude liability.

10.3 Subject to clause 10.1 and clause 10.2:

(a) Talkout shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and

(b) Talkout’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall not exceed the Price.

11. CONFIDENTIALITY

11.1 Each party may be given access to Confidential Information from the other party in connection with the operation of the Contract. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of the Contract.

11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the provisions of the Contract.

11.4 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 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5 Talkout may compile statistical information related to the performance of the Software.

11.6 Unless the Customer requests otherwise in writing, Talkout may include the Customer’s name and logo in its marketing materials and on its website.

11.7 The above provisions of this clause 11 shall survive termination of the Contract, however arising.

12.  TERM AND TERMINATION  

12.1 The Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance this clause 12, until the Work has been completed.

12.2 Without prejudice to any rights that have accrued under the Contract or any of its rights or remedies, either party may at any time terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other provisions of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so; or

(c) the other party   makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed.

12.3 If Talkout terminates the Contract under clause 12.2(a) or clause 12.2(b) the Licence shall immediately expire.

12.4 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.

12.5 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

12.6 If Talkout terminates the Contract under clause 12.2(a) or clause 12.2(b), the Customer shall immediately and permanently erase the Software from the Equipment and destroy all of the Documents under its possession or control.

12.7 On termination of the Contract for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to Talkout. Talkout shall submit invoices for any Work that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.

13.  FORCE MAJEURE  

Talkout shall have no liability to the Customer under the Contract (and reserves the right to defer the Completion Date or to cancel the Contract) if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control including: epidemic, pandemic, strikes, lock-outs or other industrial disputes (whether involving the workforce of Talkout or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

14.  VARIATION  

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15. WAIVER 

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16. SEVERANCE  

16.1 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.

16.2 If any provision or part-provision of the Contract is deemed deleted under clause 16.1 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.

17.  ENTIRE AGREEMENT  

17.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.2 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.

17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

18.  ASSIGNMENT 

18.1 The Customer shall not, without the prior written consent of Talkout, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

18.2 Talkout may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

19.  THIRD PARTY RIGHTS

The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

20. COUNTERPARTS

The Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

21. NO PARTNERSHIP

Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22. NOTICES

22.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be: (a) delivered by hand to its registered office (if a company) or its principal place of business (in any other case); (b) sent by email to the relevant contact email address as stated by each party in or in accordance with the Order Form.

22.2 Any notice shall be deemed to have been received if (a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or (b) if sent by email at the time of the transmission provided that no bounceback message is received.  This clause 21 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

23. GOVERNING LAW AND JURISDICTION

23.1 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 construed in accordance with the law of England and Wales.

23.2 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).

Schedule – Data Protection

Part 1 – Role of the parties

1.1 Where Talkout acts as a controller:

(a) when processing personal data contained within correspondence between the Customer’s staff (including Authorised Users) and Talkout’s staff and/or documents relating to the establishment, management, audit and operation of the Contract including the Work, orders for Work and payment for the Work and any other communications which Talkout may wish to rely on to establish its rights and liabilities under the Contract; and

(b) when processing the personal data of the Customer’s staff (including Authorised Users) for marketing purposes.

1.2 Where Talkout acts as a processor:

(a) save as set out in paragraph 1.1 of this Part 1 of Schedule 1, when processing the personal data of the Customer’s staff (including Authorised Users) and any other data subjects (other than Talkout’s staff) whose personal data is inputted on or collected by the Software and accessed by Talkout in connection with the Contract.

Part 2 – Particulars of processing

1.1 Scope:

Processing the personal data of the Customer’s staff (including Authorised Users) for the purposes of performing the Contract.

1.2 Nature

Accessing personal data and collecting and storing it on Talkout’s platform.

1.3 Purpose of processing

To enable Talkout to deliver the Work and the Customer to receive the benefit of the Work.

1.4 Duration of the processing

The duration of the Contract and such reasonable time after this period to enable Talkout to transfer or delete the relevant data or as otherwise agreed between the parties.

1.5 Types of personal data

Name, contact details, training data, work performance data and such other personal data as processed by Talkout as a data processor in connection with the Contract.

1.6 Categories of data subject

The Customer’s staff (including Authorised Users) and such other data subjects whose personal data is processed by Talkout as a data processor in connection with the Contract.

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