The Agreement
All Services provided by HeadBox are provided subject to and in accordance with these Terms and Conditions, together with the Service Specific Terms applicable to the Services set out on the Order Form (together, the “Agreement”).
The terms of this Agreement apply to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which may be implied by trade, course of dealing or custom.
To the extent of any conflict or inconsistency, the Order Form shall take precedence, followed by
the Fair Use Policy;
the applicable Service Specific Terms;
these Terms and Conditions; and
the HeadBox data processing agreement available at the Data Processing Agreement
Save as otherwise expressly set out in the Agreement, the following definitions apply:
"Analytics" means data relating to the Platform or Services, their usage by the Customer or Guests or data provided as a Service.
"Booking" means a Confirmed Event at a Venue (whether such booking is confirmed through the Platform or otherwise through HeadBox in connection with the Services).
"Charges" means the total amounts payable by the Customer pursuant to this Agreement (including Commission and any Credits purchased by the Customer, where applicable).
"Commission" means the 10% commission charged for Power Host Services.
"Confirmed Event" means a Booking that has been contracted between the Customer and a Guest or between the Customer and HeadBox on behalf of a Guest.
"Credit" means a unit of processing power sufficient to generate 1 minute of a HeadBox 3D Studio Guided Tour.
"Customer" means the customer set out in the Order Form.
"Customer Materials" means any documents, images, descriptions, plans, videos, materials, data, instructions, content or information provided by or on behalf of the Customer in connection with the Services.
"Event Cost" means the total cost of a Confirmed Event scheduled to take place at a Venue including all costs relating to Venue hire, audio visual services and/or equipment, catering, beverages, Venue staging and dressing, staff costs, entertainment arranged by the Customer and any other services provided by or arranged by the Customer in connection with a Confirmed Event.
"Event" means a meeting or an event.
"Fair Use Policy" means the HeadBox policy at Fair use policy
"Guest" means an individual or organization who uses the Platform to submit inquiries for events or otherwise contacts the Customer in connection with a potential event via the Platform or the HeadBox Team.
"HeadBox" means HeadBox Solutions Limited.
"HeadBox Team" means HeadBox's team members who, in connection with Power Host Services, (i) send inquiries from potential Guests to the Customer and/or may otherwise liaise between Guests and the Customer; and/or (ii) otherwise assist the Customer in connection with the provision of the Services.
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, personality rights and rights of publicity, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
"Platform" means the HeadBox platform accessible through Headbox's website and/or applications.
"Renewal Term" shall have the meaning given to it in clause 7.
"Services" means the services to be provided by HeadBox as set out in the Order Form.
"Service Specific Terms" means the additional terms and conditions applicable in respect of the Services as set out in Schedule 1.
"Subscription End Date" means the subscription end date set out in the Order Form.
"Subscription Start Date" means the subscription start date set out in the Order Form.
"Sales Tax" means value added tax or other relevant sales tax in any jurisdiction.
"Venue" means a hotel, restaurant, bar, event space or other venue owned or used by the Customer which may be used for meetings, events or hospitality.
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 assignments. A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires: (i) words in the singular shall include the plural and, in the plural, shall include the singular; and (ii) a reference to one gender shall include a reference to the other genders.
A reference to writing or written includes e-mail.
The words “including”, “include”, “for example”, “in particular” and words of similar effect shall not limit the general effect of the words which precede them.
The Services
During the term of the Agreement, HeadBox shall provide the Services starting from the later of (a) receipt of payment of the Charges in accordance with the Order Form; and (b) the Subscription Start Date.
The Customer acknowledges and agrees that its use and receipt of the Services and any and all output of the Services is at all times subject to strict compliance with the Fair Use Policy. The Customer shall, and shall procure that all personnel, agents, contractors or third parties using the Services for or on behalf of the Customer shall, at all times comply with the Fair Use Policy. The Customer shall be responsible for any failure by such personnel, agents, contractors or third parties to comply with the Fair Use Policy.
Without limiting any of its rights under this Agreement or otherwise, HeadBox may suspend the Customer's access to the Services (in whole or in part) if at any time HeadBox has reasonable grounds to believe that the Customer or any third party under its control has breached the Fair Use Policy.
Any dates for provision of any Services or delivery of any materials (whether set out in an Order Form or otherwise) are for guidance only. Time for performance is not of the essence.
Customer Obligations
The Customer shall be solely responsible for:
providing all descriptions, images, plans, models, videos, information and other content for or relating to a Venue including all specifications required for 3D Capture, or for matching a Venue with Guest inquiries;
monitoring and reviewing all Guest inquiries;
assessing the suitability of inquiries and responding promptly to inquiries and other queries;
the content of all responses and communications made by or on behalf of the Customer (and the Customer shall ensure that all responses and communications comply with the Fair Use Policy);
all aspects of Bookings and potential Bookings;
entering into venue hire agreements and any and all other contracts in respect of an Event;
ensuring that each Venue and each Event taking place at a Venue complies with all applicable laws, regulations and best practice including, without limitation, in respect of health and safety, licensing and data protection;
ensuring appropriate insurance cover is in place in respect of each Venue;
all aspects of a Confirmed Event.
The Customer shall not, or permit any third party to:
remove, obscure, modify or hide any copyright notice or other notice or watermark from the Platform or any output of the Services;
copy, disassemble, reverse engineer, decompile, decrypt or attempt to derive the source code of any software used in the provision of the Services or the Platform or any output of the Services;
attempt to gain unauthorized access to the Platform or any functionality, offerings or any other systems of HeadBox or third party software providers;
circumvent, modify or hide any links generated through the use of the Platform; or
share any login to access the Platform with any third party.
Warranties
Each party warrants, represents and undertakes that:
it has the authority, power and capacity to enter into and perform this Agreement and grant the rights granted in this Agreement;
the performance of this Agreement does not conflict with any duty owed to any third party; and
it will comply with the HeadBox Data Processing Agreement.
The Customer warrants, represents and undertakes that:
it is the owner or operator of the Venue or otherwise has all necessary rights, permissions and consents to:
accept Bookings for a Venue;
grant to HeadBox (and its agents, contractors and partners) access to all relevant parts of the Venue as reasonably required in connection with the provision of the Services; and
otherwise procure Services for a Venue;
all information regarding a Venue shall be true, complete and accurate;
that use of any Customer Materials as envisaged in this Agreement shall not infringe or breach the rights of any third party and the Customer has procured all relevant permissions and/or waivers of moral rights in respect of all such materials;
it has made all appropriate checks and inquiries to ensure the Customer Materials are appropriate, complete and accurate for their intended use; and
it shall (and shall procure that any personnel, agents, contractors or third parties under its control shall) at all times use any output of the Services in accordance with applicable laws and regulations including those related to privacy and data protection.
Save as expressly set out in this Agreement, the Services and Platform and all output therefrom are provided “as is” and HeadBox hereby excludes to the maximum extent permitted by law all warranties, express or implied, including but not limited to warranties of merchantability, title, non-infringement, fitness for a particular purpose or accuracy. HeadBox does not warrant that access to the Platform or Services will be uninterrupted or error free. Further, HeadBox expressly disclaims all warranties (express or implied) in relation to the volume or suitability of any inquiries or Bookings the Customer may receive (or lack thereof).
Intellectual Property
The Customer hereby grants to HeadBox a non-exclusive, royalty free, fully paid-up, worldwide license (including the right to sublicense) to copy, publish, modify and otherwise use:
the name(s) and logo(s) of the Customer and each Venue;
all Customer Materials and all other materials provided by or made available by the Customer,
to promote the Customer and the Venue and as otherwise reasonably required for HeadBox to provide the Services.
The Customer acknowledges and agrees that, as between the parties, HeadBox owns all rights and title in and to the HeadBox website, the Platform, data generated through the use of or access to the Platform or the Services and all names, logos, trade marks, service marks, domain names and social media identifiers of HeadBox.
Subject to payment of the Charges, HeadBox grants to the Customer the non-exclusive right to access and use the Services during the term of this Agreement for the benefit of the Venues expressly set out in the Order Form and not for any other venue or location.
The Customer grants to HeadBox the right to refer to the Customer's name and logo in its marketing for the Services, including on HeadBox social media pages, and to include the Customer's name and logo on HeadBox's website and marketing lists.
HeadBox and/or its licensors shall be the owner of all Analytics and any Intellectual Property Rights therein. Subject to the Customer's payment of all Charges, HeadBox grants to the Customer a non-exclusive, royalty free license during the term of this Agreement to use the Analytics for its internal business purposes only.
Charges
Save to the extent otherwise expressly stated in the Order Form:
the Customer shall pay all Charges in advance; and
where the Customer purchases Power Host Services (as indicated on the Order Form), the Customer shall pay the Commission on the Event Cost upon confirmation of a Booking.
Where the Customer purchases Credits in respect of Services (as indicated on the Order Form):
the Customer may at any time purchase additional Credits at HeadBox's then current rates;
unused Credits purchased in one year of this Agreement shall automatically roll-over to the following year of this Agreement (but not any further year). No refund shall be provided for unused Credits if the Customer gives notice of non-renewal in accordance with clause 7.1 or otherwise on termination of this Agreement.
The Customer shall pay all Charges in full within 7 days of the date of HeadBox's invoice therefore. All Charges are non-refundable.
All Charges are stated exclusive of Sales Taxes, which shall be payable by the Customer. Should the Customer pay any amount by way of credit card, HeadBox reserves the right to charge a transaction fee.
HeadBox may increase its Charges from time to time and, subject to clause 6.2 and the Service Specific Terms, such price increases shall apply from the start of the next Renewal Term. HeadBox's current prices are available upon request.
Without prejudice to any other rights or remedies of HeadBox, if the Customer fails to pay any Charges when due, HeadBox shall have the right to:
suspend the Customer's access to the Platform and/or suspend the provision of any Services (and during any period of suspension, all Charges shall continue to accrue and be payable by the Customer in accordance with this Agreement);
charge interest on the overdue amount from the due date until payment of the overdue sum, whether before or after judgment, at a rate of 4% per annum above Barclays Bank base rate from time to time;
cancel any credit, payment installments or other payment terms agreed between HeadBox and the Customer and require the Customer to pay all remaining Charges due up to and including the Subscription End Date (or last day of the then current Renewal Term, as applicable) in advance within 7 days of receipt of HeadBox's invoice therefore;
terminate this Agreement in whole or in respect of particular Services immediately on written notice to the Customer; and
where HeadBox holds any Guest funds in respect of a Booking, deduct an amount equal to the Charges overdue from any funds payable by the Guest to the Customer (and the Customer shall not seek to recover any such amounts from the Guest).
The Customer shall pay all Charges without any deduction, withholding or set off. If the Customer is required by applicable law to deduct any amount from any payment to HeadBox, the Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, HeadBox receives and retains (free from any liability for taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. The Customer will provide proof of withholding tax remittance to the respective tax authority at HeadBox's request.
Term and Termination
The Agreement shall commence on the date of signature of the Order Form or, if earlier, upon provision of any services and shall continue up to and including the Subscription End Date or, if that is not specified, for a period 12 months from commencement and thereafter automatically renew for additional periods of 12 months (each 12 month period being a “Renewal Term”) unless either Party gives at least 3 months' written notice of non-renewal, in which case the Agreement shall expire on the Subscription End Date or the last day of the then current Renewal Term (as applicable).
In addition to HeadBox's rights pursuant to clause 6.6, HeadBox may terminate this Agreement immediately on written notice to the Customer if:
the Customer uses the Platform or attempts to use the Platform to promote any venue or book an event at any venue which is not set out in the Order Form;
the Customer breaches any term of this Agreement (including, without limitation, the Fair Use Policy) and such breach is irremediable or (if that breach is remediable) the Customer fails to remedy that breach within a period of 7 days after being notified in writing to do so; or
the Customer takes any step or action in connection with its entering administration, liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up, having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
HeadBox may upon reasonable notice to the Customer terminate such part of the Services if it ceases to generally provide such services.
On termination of the Agreement all rights of the Customer granted hereunder shall immediately cease.
On termination of this Agreement, for any reason, or if the Customer ceases to use the Services (as reasonably determined by HeadBox), the Customer acknowledges and agrees that HeadBox may invoice the Customer in respect of all amounts due on or before the Subscription End Date (or last day of the then current Renewal Term if applicable) and the Customer shall pay all such amounts within 7 days of receipt of HeadBox's invoice therefore.
The Charges are non-cancelable and no refunds are provided in any circumstances (including where a Booking is canceled by a Guest).
Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of the Agreement which existed at or before the date of termination.
Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
Liability
The Customer shall indemnify and keep HeadBox, its affiliates and in each case their officers, personnel and agents indemnified against any and all liability, losses, penalties, damages, costs and expenses (including reasonable legal and professional costs and expenses) arising out of or in connection with:
any claim or allegation that the use of Client Materials by HeadBox and/or its sub-licensees infringes the Intellectual Property Rights of a third party or breaches any right of a third party;
any complaint in connection with any failure of the Customer (or any person under the Customer's control) to comply with the Fair Use Policy; and
any Confirmed Event which takes place or is scheduled to take place pursuant to a Booking
Nothing in this Agreement shall limit or exclude the liability of a party for:
death or personal injury caused by its negligence;
fraud or fraudulent misrepresentation;
liability under an indemnity; or
any other matter for which it would be unlawful to exclude or restrict liability.
Subject to clause 8.2:
HeadBox shall not be liable to the Customer for any loss of profit, sales, revenue, opportunity, loss or damage to goodwill, loss of data or any indirect or consequential loss;
HeadBox expressly disclaims any and all liability for the contents or suitability of any inquiry or Booking or for the acts or omissions of any person who submits an inquiry, makes a Booking, attends or is otherwise involved with any Confirmed Event; and
the total liability of HeadBox arising under or in connection with this Agreement, shall in no circumstances exceed the total Charges paid or payable during the year of the Agreement in which such liability arises.
General
HeadBox shall not be liable for any delay or failure in the provision of any Services where such delay or failure is due to any event outside of the reasonable control of HeadBox including acts of God; war (and/or threat of or preparation for war), armed conflict or other action of military forces, terrorism, riot or civil commotion; pandemic, epidemic or other outbreak of illness; collapse of buildings, explosion, accident or fire; flood, drought, earthquake; natural, chemical, biological or nuclear disasters and/or contamination; sonic boom; imposition of sanctions, embargo, or breaking off of diplomatic relations; any law, action or advice taken and/or provided by a government or public authority, including export or import restrictions, quota or prohibition, or failing to grant a necessary license or consent; any labor or trade dispute, strikes, industrial action or lockouts; and interruption or failure of utility or communications service or third party software.
From time to time, HeadBox may modify this Agreement and any such changes shall apply from the next anniversary of the Subscription Start Date save that any modifications to the Fair Use Policy shall apply from 30 days after publication.
The Customer shall not assign, transfer, charge, subcontract, delegate or deal in any other manner with any of its rights and obligations under this Agreement.
If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
This Agreement 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. The Customer acknowledges and agrees that in entering into the Agreement 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 Agreement. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales.
Save as otherwise set out in this Schedule 1, the following definitions apply:
"3D Capture" means the specialized photography of a Location from which Model(s) are developed.
"Avatar" means an Instant Avatar and/or Bespoke Avatar, as applicable.
"Bespoke Avatar" means an Avatar created for the Customer based on the Customer's instructions and includes where Customer branding is applied to one or more Instant Avatars.
"Guided Tour" means a Model combined with an Avatar using a Script to create one or more Scenes.
"Instant Avatar" means a pre-loaded avatar made available by HeadBox.
"Lead" means an initial inquiry from a Guest which is matched with a Venue (based on the Venue specifications provided by the Customer).
"Location" means the hotel, restaurant, bar, venue or any other location which may be used for accommodation, meetings, events or hospitality which is to be rendered as a Model.
"Model" means a 3D virtual model or tour of a hotel, restaurant, bar, venue or any other location which may be used for accommodation, meetings, events or hospitality created by HeadBox for the Customer.
"Permitted Uses" means (i) the display of Guided Tours and Models on the Customer's website(s) set out on the Order Form, on the Customer's social media pages, in the Customer's marketing material; and (ii) use by the Customer in non-public meetings and event proposals, in each case solely for the purposes of promoting the Venue.
"Proposal" means the Customer's offer for an event to take place at a Venue, in response to a Guest inquiry.
"Rate Card" means Headbox's price list for certain services, which may be updated from time to time. Any Charges not listed on the Order Form will be calculated according to the Rate Card in force at the time they are incurred.
"Scene" means the use of an Instant Avatar or Bespoke Avatar using a Script to give a description of one part of a Model.
"Script" means the narrative, descriptions, wording or other scripts uploaded or otherwise provided by the Customer through its use of the Services.
"Touchpoints" means in-person or virtual events with the HeadBox Team, including in-person familiarization visits, virtual guided tours, meetings in the HeadBox office and HeadBox-hosted meetings and events at the Venue.
PART A: LEAD FEED
Lead Feed is a lead generation service which enables the Customer to proactively follow up on and engage with Leads. HeadBox gives no assurances as to the number, value or quality of Leads or the percentage of Leads that may convert to a Booking.
If the Customer purchases Lead Feed (as indicated on the relevant Order Form), HeadBox will provide the following Services:
permit the Customer to access and view inquiries from Guests that have been matched with Venues based on the Customer's specifications;
list Venues on the Platform and for such Venues to appear in relevant searches conducted by potential Guests;
respond to matched inquiries and, where relevant, confirm Bookings; and
provide Analytics data regarding engagement with Venues.
If the Customer wishes to utilize the HeadBox venue finding services (provided under some Lead Feed packages), the Customer acknowledges and agrees that HeadBox provides no guarantees as to the quality, suitability or availability of any potential venues suggested, or that HeadBox will be able to find any potential venue. The Customer shall not use any third party to find or secure any venue or event services for any event communicated to the Headbox venue finding service without the prior written consent of HeadBox.
PART B: POWER HOST
If the Customer purchases Power Host (as indicated on the relevant Order Form), HeadBox will provide the following Services:
access to meetings and event inquiries from corporate Guests matched with a Venue by the HeadBox Team; and
promotion of the Venues to appropriate corporate Guests working with the HeadBox Team.
HeadBox gives no assurances as to the number, value or quality of inquiries or the percentage of inquiries that may convert to a Booking.
HeadBox acts as the legal and payment agent for Guests and, when a Guest confirms an event via the Services, then HeadBox will enter into a contract with the Customer as the Guest's agent and make payment on behalf of the Guest. The Customer acknowledges that Headbox is not a party to the contract between the Customer and the Guest and Headbox accepts no liability for any act or omission of a Guest.
The Guest will be required to pay for any Confirmed Event 45 days from the receipt of the invoice from the Customer. If the event is within 45 days of the date of confirmation, the Guest will be required to make payment prior to the event.
The Customer must share its Booking cancellation policy with HeadBox prior to submitting a Proposal. When this has been done and a Booking is canceled by a Guest, the Event Cost shall be the amount payable by the Guest pursuant to the Customer's cancellation policy. Commission is calculated based on the Event Cost due to the Customer under that cancellation policy.
The number of Touchpoints in a package or set out on an Order Form is for guidance only. Touchpoints are subject to availability and cannot be booked prior to the date of signing of the Agreement.
If the Customer wishes to utilize the HeadBox venue finding services (provided under some Power Host packages), the Customer acknowledges and agrees that HeadBox provides no guarantees as to the quality, suitability or availability of any potential venues suggested, or that HeadBox will be able to find any potential venue. The Customer shall not use any third party to find or secure any venue or event services for any event communicated to the Headbox venue finding service without the prior written consent of HeadBox.
PART C: HEADBOX 3D STUDIO
If the Customer purchases HeadBox 3D Studio (as indicated on the relevant Order Form), HeadBox will make available to the Customer such functionality on the Platform to enable the Customer to:
create, view and edit Guided Tours and Scenes for use in accordance with the Permitted Uses;
create Scripts to accompany a Model, Guided Tour or Scene;
view and select Instant Avatars to narrate a Model, Guided Tour or Scene; and
create Bespoke Avatars to narrate a Model, Guided Tour or Scene,
in each case solely for the Permitted Uses during the term of, and subject to and in accordance with, the Agreement.
Save as otherwise expressly set out on the Order Form or in this Agreement, the Customer shall not, and shall not permit any third party to, display any Guided Tour and/or Model (or any screenshot or other still image created from a Guided Tour and/or Model) on any website or social media account of a third party event space booking platform or any other competitor of HeadBox. Competitors of HeadBox include Hirespace.com, Tagvenue.com and Venueseeker.com.
The Customer shall retain any Intellectual Property Rights in the Scripts.
The Customer shall be solely responsible for procuring in writing all relevant permissions, consents, approvals, licenses and waivers (together, “Permissions”):
from any person or character on which a Bespoke Avatar is to be based including all Permissions to use the name, title, appearance, likeness and voice of any such person or character; and
for HeadBox to use any materials (including images, videos and/or sound recordings as reasonably required by HeadBox) provided by or for the Customer in the development or creation of a Bespoke Avatar,
(together, the “Reference Materials”) and shall immediately on request provide HeadBox with evidence of such Permissions.
The Customer hereby grants to HeadBox a non-exclusive, royalty free, fully paid up, worldwide license to copy and use:
the Scripts;
the Reference Materials; and
any other Customer Materials,
in connection with the provision of the Services, including the right to sublicense to any third party involved in the provision of the Services.
The Customer shall immediately notify HeadBox in writing if any Permissions are revoked or if the Customer ceases to have any required rights in or to any Scripts, Reference Materials and/or other Customer Materials to grant to HeadBox the rights granted in this Agreement and the Customer shall immediately cease all further use of the relevant Avatar(s).
HeadBox and/or its licensors shall be the owner of all right and title in and to all (i) test scripts made available by HeadBox; (ii) and Avatars (including any and all Intellectual Property Rights subsisting in an Avatar and any watermark or disclaimer relating to an Avatar), excluding any Customer Materials incorporated therein.
Subject to the Customer's payment of all Charges in accordance with the Order Form, HeadBox grants to the Customer a non-exclusive license during the term of the Agreement to use the Avatars as incorporated in the relevant Model or Guided Tour for the Permitted Uses at all times strictly in accordance with the Fair Use Policy.
Use of Guided Tours, Scenes and/or Avatars (for example, playback of a Guided Tour) is measured on a time basis. As at the commencement of the Agreement, the Customer will be provided with a limited number of Credits to use Guided Tours, Scenes and/or Avatars. If the Customer wishes to use more Credits it will have the option to purchase additional Credits at HeadBox's then current rates.
The Customer shall include such URL backlink as provided by HeadBox on its main website throughout the term of this Agreement.
No warranty is given as to the accuracy, reliability or completeness of any Avatars.
In addition to the indemnities given by the Customer pursuant to clause 8.1 of the Agreement, the Customer shall indemnify and keep HeadBox, its affiliates and in each case their officers, personnel and agents indemnified against all liabilities, losses, damages, penalties, costs and expenses (including reasonable legal and professional costs and expenses) arising out of or in connection with:
any failure to obtain any relevant Permissions;
any complaint from or in relation to any person or character a Bespoke Avatar is based upon; and
any complaint relating to a Script created by or on behalf of the Customer (including that a Script is misleading, inaccurate or contains material that does not comply with the Fair Use Policy).
HeadBox shall indemnify and keep the Customer indemnified against all liabilities, losses, damages, penalties, costs and expenses (including reasonable legal and professional costs and expenses) arising out of or in connection with a claim that the Customer's use of an Instant Avatar, but excluding any Scripts used in connection therewith, for the Permitted Uses in accordance with this Agreement infringes the Intellectual Property Rights of a third party provided that the Customer shall:
notify HeadBox in writing as soon as reasonably practicable of any such claim;
cease all use of the Instant Avatar unless HeadBox directs otherwise in writing;
allow HeadBox to control the investigation, defense and settlement of such claim;
not make any admission of liability, agreement or compromise in relation to the claim; and
cooperate with HeadBox in good faith.
HeadBox does not, and shall be under no obligation to, moderate or review any Scripts and accepts no liability for the content of any Scripts. Notwithstanding the foregoing, HeadBox shall at all times have the right to remove or disable any Scripts and/or Avatars if HeadBox reasonably believes that a Script and/or Avatar violates the Fair Use Policy (as a result of a complaint by a third party or otherwise).
HeadBox at all times reserves the right to temporarily or permanently disable any Avatar without liability if HeadBox reasonably considers that making available such Avatar or the Customer's use of such Avatar may breach any data protection laws or infringe or breach any rights of any third party.
Upon termination of the 3D Studio Services, HeadBox will retain the Customer's data relating thereto for 30 days. During this period, the Customer can request deletion of any Model(s) or their transfer to a Matterport account owned by the Customer subject to all Charges being paid, as well as payment of any additional applicable charges pursuant to the Rate Card. Guided Tours and Avatars are not transferable. After the 30 day period, HeadBox reserves the right to erase the Customer's data, including 3D Photography, Models, Guided Tours and Avatars.
After expiry of the 30 day period referred to above, any Model(s) retained by HeadBox shall be subject to the Service Specific Terms for HeadBox 3D Images at Schedule 1 Part D of this Agreement, and the Customer shall pay annual hosting Charges, starting on the date of cessation of the 3D Studio Services, at the rate in force at the time on the Rate Card.
The 3D Studio Services described in this Schedule 1 Part C shall automatically terminate if the Customer fails to pay any Charges due in respect of hosting and/or HeadBox 3D Images, as indicated on the Order Form.
PART D: HEADBOX 3D IMAGES
If the Customer purchases HeadBox 3D Images (as indicated on the relevant Order Form), HeadBox (or its agents, sub-contractors or partners) will, subject to receipt of payment of the relevant Charges from the Customer:
attend the Location and undertake the 3D Capture;
create the Model(s);
host the Model(s) on the Platform,
subject to and in accordance with the Agreement.
The Customer shall ensure that:
the relevant Charges for the 3D Capture are paid no less than 10 working days prior to the first scheduled date for 3D Capture set out in the Order Form or otherwise confirmed by HeadBox in writing (the “3D Capture Date”);
each Location is ready and available for 3D Capture no less than 2 hours before the scheduled start time on the 3D Capture Date. The Customer shall be solely responsible for all styling and staging of each Location and provision of all props;
HeadBox (and/or its authorized agents, sub-contractors and/or partners) shall be provided with all access to each Location as reasonably required to undertake the 3D Capture and the Customer shall pay any additional Charges in respect of delays at the rate set out in the Rate Card in force at the time;
all persons at a Location comply with the reasonable directions of HeadBox and/or its agents, sub-contractors or partners and are available at all times to facilitate the 3D Capture; and
no members of the public are in or are able to enter a Location during the 3D Capture.
If Headbox is (or its personnel, agents, contractors or partners are) not be able to access a Location for any reason at the scheduled time on the 3D Capture Date (or such rescheduled time and date as agreed between HeadBox and the Customer) or if the 3D Capture is delayed for any other reason outside of the reasonable control of HeadBox, or if the 3D Capture takes longer than the allotted time, the Customer shall be charged according to the Rate Card.
If HeadBox has not received payment in full in respect of the 3D Capture in accordance with paragraph 2.a. above, without prejudice to any other rights of HeadBox, HeadBox shall have the right to postpone the 3D Capture Date and/or charge the Customer a late change fee in accordance with the Rate Card.
For accounting purposes only, the 3D Capture of a Location shall be deemed to have been completed on the 3D Capture Date for the relevant Location.
The Customer shall book and pay for any and all travel, accommodation and sustenance required in connection with the 3D Capture. Where the Customer does not make all bookings and payments, HeadBox may make bookings and payments and the Customer shall reimburse HeadBox in respect of any and all expenses incurred in connection with the 3D Capture in accordance with the Rate Card including return travel to the Location (by air, train, car rental, as considered appropriate by HeadBox), accommodation, sustenance and incidental expenses incurred by any person undertaking the 3D Capture.
If the Customer cancels the 3D Capture for any reason, the Customer shall reimburse all travel, accommodation and cancellation charges incurred or committed to by HeadBox as at the date of cancellation.
HeadBox shall use reasonable endeavors to ensure Model(s) are a reasonable reflection of the Location at the time of the 3D Capture. In the event of any manifest error, HeadBox's sole liability shall be to re-perform the 3D Capture services as necessary to correct such error at no cost to the Customer.
The Customer grants to HeadBox a non-exclusive, royalty free, worldwide license (including the right to sublicense) to copy, reproduce and use all trade marks, logos, names, designs and other proprietary rights in respect of any products, furnishings, fittings, props and other materials in a Location (together, “Location Materials”) for the purposes of providing the Services.
In addition to the indemnities given by the Customer pursuant to clause 8.1 of the Agreement, the Customer shall indemnify and keep HeadBox, its affiliates and in each case their agents, personnel, contractors and partners indemnified against any and all liabilities, losses, damages, penalties, costs and expenses (including, without limitation, reasonable legal and professional costs and expenses) arising out of or in connection with:
any claim or allegation that HeadBox's use of any Location Materials in accordance with the Agreement infringes the Intellectual Property Rights or breaches any rights of any third party;
any failure to comply with any applicable third party license terms communicated to the Customer; and
use of any Model(s) other than as expressly permitted in this Agreement.
HeadBox and/or its licensors shall own all rights in and to the Model(s) and all materials created pursuant to the 3D Capture (but excluding any Intellectual Property Rights in the Location Materials incorporated therein).
HeadBox grants to the Customer a non-exclusive license during the term of the Agreement to:
access the Model(s) on the Platform; and
use embedded links to the Model(s),
solely for the Permitted Uses. The Customer shall not, and shall not permit any third party to, link to or display any Model (or any screenshot or other still image created from a Model) on any website or social media account of a third party event space booking platform or any other competitor of HeadBox. Competitors of HeadBox include Hirespace.com, Tagvenue.com and Venueseeker.com.
The Customer agrees to publicize the Model(s) with a post on LinkedIn which shall include a direct link to HeadBox's LinkedIn page within 30 days of the Customer's receipt of the Model(s). This post shall include reference to, alongside a direct clickable link for, the LinkedIn profile of the relevant HeadBox sales consultant involved.
The Customer will provide a URL backlink directing to the HeadBox.com domain on the Customer's website throughout the term of the Agreement.
The Customer acknowledges that certain functionality on the Platform is provided by a third party and that the Customer's use of and access to the Platform and Model(s) hosted on the Platform is at all times subject to the Customer's payment of all applicable hosting Charges and compliance with the license terms at https://matterport.com/terms-of-use.
The Customer's access to Model(s) shall automatically terminate if the Customer fails to pay any Charges (including hosting charges) in respect of HeadBox 3D Images when due.
The Customer acknowledges and agrees that the 3D Capture must be completed within 12 months of the Customer signing the relevant Order Form, failing which HeadBox shall be under no obligation to undertake the 3D Capture (and no refund shall be provided).