Business Terms

BotanicalMapper terms and conditions

In these terms, we also refer to Virescent Ltd, a company registered in England and Wales under company number: 17206041 with registered office at 8 Acreman Street, Dorchester, Dorset, United Kingdom, DT2 7JX as "Company", "our", "we", or "us". And you are "you"!

What are these terms about?

These terms apply when you sign up for BotanicalMapper through our website, being www.botanicalmapper.com and any other websites we operate with the same domain name and a different extension (Website) or by purchasing access to BotanicalMapper via email. These terms govern business use of BotanicalMapper. If you are an individual signing up for personal use of BotanicalMapper, these terms do not apply to you — please refer to our Individual Terms.

Key words used in these terms

To make it easier for you to understand the terms on which we provide, and you use, BotanicalMapper, we've tried to keep these terms as simple as possible by using plain English. When we say "BotanicalMapper" in these terms, we mean our software platform available through our Website and any services provided in connection with it, including access to associated guidance or reference materials ("BotanicalMapper", or "the Platform").

BotanicalMapper enables businesses and their Licensed Users to map, manage, and document plants, landmarks, and landscape features within defined areas, through interactive mapping tools, data management features, and related functionality.

Businesses that create an account to access and use BotanicalMapper will be referred to in these terms as Clients. The features and number of Licensed Users permitted to access BotanicalMapper under a Client's account will depend on the subscription tier selected by the Client at sign-up (Subscription Tier). These terms apply to Clients on the following Subscription Tiers:

• Teams - collaborative access designed for teams, with Licensed User limits as specified on the Website; and
• Enterprise - full-feature access with Licensed User limits as specified on the Website. We've also used a few other capitalised words and phrases as shorthand to refer to recurring concepts. Each of these is defined in bold and in brackets the first time the concept appears.

Acceptance of these terms

Before you create an account for BotanicalMapper, or otherwise engage with BotanicalMapper, please carefully read these terms. By ticking the acceptance box when creating an account, you confirm that you have authority to bind the Client and that the Client agrees to be bound by these terms.

1. TERM

• (a) This agreement commences on the date you agree to be bound by these terms by ticking the acceptance box when creating an account. It will continue for your chosen monthly or annual billing cycle (the Initial Term), and any Renewal Term applicable per clause 1(b), unless terminated earlier in accordance with clause 12 (Term).
• (b) Subject to clause 1(c), upon expiration of the Initial Term, this agreement will automatically and indefinitely renew on an ongoing basis for a period equal to your chosen billing cycle (Renewal Term).
• (c) This agreement will not automatically renew on expiry of the Initial Term or a Renewal Term (Renewal Date), if you decide to cancel or if either party provides written notice that this agreement will not renew at least 10 days prior to the Renewal Date.

2. PLATFORM

2.1 CHANGES TO THE PLATFORM

• (a) (Enhancements and Customisations) Virescent may from time to time in its absolute discretion install enhancements to BotanicalMapper, where enhancements mean any upgraded, improved, modified or new versions of BotanicalMapper (including any customisations made at the Client's request).
• (b) (Additional users under the licence) If additional users are required to the Number of Licensed Users set out on the Website, the following process will apply:
  • (i) the Client must notify Virescent of the number of additional users required; and
  • (ii) Virescent will invoice the Client the Additional Licensed User Fee for each additional user up to a maximum of 25 users for the then current subscription period.

2.2 SOFTWARE LICENCE

• During the Term, Virescent grants to the Client a non-exclusive, non-transferable licence to use BotanicalMapper and Documentation and to provide access to the Software for the Licensed Users in accordance with this agreement.

2.3 HOSTED SERVICES

• Virescent will store Client Data using a third-party hosting service selected by Virescent (Hosting Service), subject to the following terms:
• (a) (hosting location) The Client acknowledges and agrees that Virescent may host the Software via cloud-based services which use storage servers located in and potentially outside England and Wales.
• (b) (service quality) While Virescent will use its best efforts to select an appropriate hosting provider, Virescent does not guarantee that the Hosting Service will be free from errors or defects or that Client Data will be accessible or available at all times.
• (c) (security) Virescent will use its best efforts to ensure that Client Data is stored securely. However, Virescent does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
• (d) (backups and disaster recovery) In the event that Client Data is lost due to a system failure (e.g., a database or webserver crash), Virescent cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.

3. CLIENT OBLIGATIONS

• 3.1 GENERAL

  • The Client:
    • (a) must provide Virescent with all documentation, information and assistance reasonably required by Virescent to provide BotanicalMapper; and
    • (b) agrees that it will not, by receiving or requesting BotanicalMapper:
      • (i) breach any applicable laws, rules or regulations (including any applicable privacy laws); or
      • (ii) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

• 3.2 USERS AND EULA

  • (a) THE CLIENT MUST, AND MUST ENSURE THAT ALL USERS:
    • (i) comply with this agreement (including the EULA) at all times; and
    • (ii) notify Virescent without delay whenever it becomes aware of any case of a breach of this clause 3 or otherwise any illegal or unauthorised use of BotanicalMapper.
  • (b)The Client acknowledges and agrees that Virescent will have no liability for any act of a User or for damage, loss or expense suffered by a User in connection with the use of BotanicalMapper and will indemnify Virescent for any such damage, loss or expense.

• 3.3 USE OF PLATFORM

  • The Client must not, and must not encourage or permit any User or any third party to, without Virescent's prior written approval:
    • (a) upload sensitive information or commercial secrets to the Software;
    • (b) upload any harmful, discriminatory, defamatory, maliciously false implications, offensive, explicit, inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material to the Software;
    • (c) upload any material that is owned or copyrighted by a third party;
    • (d) make copies of the Documentation or BotanicalMapper;
    • (e)adapt, modify or tamper in any way with BotanicalMapper;
    • (f) remove or alter any copyright, trade mark or other notice on or forming part of BotanicalMapper or Documentation;
    • (g) create derivative works from, translate or reproduce BotanicalMapper or Documentation;
    • (h) publish or otherwise communicate BotanicalMapper or Documentation to the public, including by making it available online or sharing it with third parties;
    • (i) sell, loan, transfer, sub-licence, hire or otherwise dispose of BotanicalMapper or Documentation to any third party, other than sub-licensing to a Licensed User for the Number of Licensed Users;
    • (j) decompile or reverse engineer BotanicalMapper or any part of it, or otherwise attempt to derive its source code;
    • (k) attempt to circumvent any technological protection mechanism or other security feature of BotanicalMapper;
    • (l) permit any person other than Licensed Users to use or access BotanicalMapper or Documentation;
    • (m) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other user of BotanicalMapper or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with BotanicalMapper;
    • (n) share its Software account information with any other person and that any use of its account by any other person is strictly prohibited. The Client, must immediately notify Virescent of any unauthorised use of it or its User's account, password or email, or any other breach or potential breach of the Software's security;
    • (o) use BotanicalMapper for any purpose other than for the purpose for which it was designed, such as not using BotanicalMapper in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity; nor
    • (p) act in any way that may harm Virescent's reputation or that of associated or interested parties or do anything at all contrary to the interests of Virescent or BotanicalMapper.

• 3.4 CLIENT DATA

  • By providing or posting Client Data, the Client represents and warrants that, and must ensure that all Users make equivalent representations and warranties:
    • (a) the Client is authorised to provide the Client Data;
    • (b) the Client Data is accurate and true at the time it is provided;
    • (c) the Client Data is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
    • (d) the Client Data does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
    • (e) the Client Data does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of BotanicalMapper or any network or system; and
    • (f) the Client Data does not breach or infringe any applicable laws.

4. THIRD PARTY SOFTWARE AND TERMS

• (a) The Client acknowledges and agrees that third party terms and conditions (Third Party Terms) may apply to use of BotanicalMapper.

• (b) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in providing BotanicalMapper and Virescent will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

• (c) Virescent will endeavour to notify the Client of Third Party Terms that apply to BotanicalMapper, in which case:

  • (i) the Client must immediately notify Virescent if it does not agree to such Third Party Terms; and
  • (ii) if Virescent does not receive a notice in accordance with clause 4(c)(i), the Client will be taken to have accepted those Third Party Terms, and Virescent will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.

• (d) The Client acknowledges and agrees that if it does not agree to any Third Party Terms, this may affect Virescent's ability to meet any agreed schedules for delivering BotanicalMapper.

• 4.2 THIRD PARTY SOFTWARE

  • (a) The Client acknowledges and agrees that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. Virescent cannot guarantee that integration processes between the Software and other software programs or IT systems will be free from errors, defects or delay.
  • (b) The Client agrees that Virescent will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if the Client integrates it with third party software, or changes or augments the Software, including by making additions or changes to the Software code or by incorporating APIs into the Software.
  • (c) If the Client adds third party software or software code to the Software, integrates the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:
    • (i) the Client acknowledges and agrees that Client Solution Changes can have adverse effects on BotanicalMapper, including the Software;
    • (ii) the Client indemnifies Virescent in relation to any loss or damage that arises in connection with the Client Solution Changes;
    • (iii) Virescent will not be liable for any failure in BotanicalMapper, to the extent such failure is caused or contributed to by a User Software Change;
    • (iv) Virescent may require the Client to change or remove Client Solution Changes, at Virescent's discretion, and if Virescent does so, the Client must act promptly;
    • (v) Virescent may suspend the Client's access to BotanicalMapper until the Client has changed or removed Client Solution Changes; and/or
    • (vi) Virescent may change or remove any Client Solution Changes, in its absolute discretion. Virescent will not be liable for loss of data or any other loss or damage the Client may suffer in relation to Virescent's amendment to, or removal of, any User Software Change.

5. PAYMENT

• (a) (Subscription Fees) The Client must pay to Virescent the Subscription Fees in the amounts set out on the Website for your selected Subscription Tier, or as otherwise agreed to in writing. The Subscription Fees applicable are those shown on the Website at the time of registering. We reserve the right to update the prices on the Website at any time. Subscription Fees are payable in advance on either a monthly or annual basis for the duration of the Subscription Period, as selected by the Client at sign-up. The Subscription Fees applicable are those shown on the Website at the time of registering. We reserve the right to update the prices on the Website at any time. We will provide you with at least one (1) month's written notice before any such price changes take effect.
• (b) (Automatic Recurring Billing) Your Subscription will continue for the Subscription Period and any renewal period on a monthly or annual basis indefinitely, and you must pay Subscription Fees in respect of each such period, unless you notify us in accordance with clause 1(c). Otherwise, we will continue to debit the Subscription Fees from your account each month or year, depending on your Subscription Tier.
• (c) (Online payment partner) We may use third-party payment providers (Payment Providers) to collect payment of the Fees for BotanicalMapper. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. The Online Payment Partner's current payment terms are available here: stripe.com/docs/payouts. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your Fees.
• (d) (Pricing errors) In the event that we discover an error or inaccuracy in the Fees for BotanicalMapper, we will attempt to contact you and inform you of this as soon as possible. You will then have the option of subscribing to BotanicalMapper at the correct Fees or cancelling your Account. If you choose to cancel subscription and the Fees have already been debited, the full amount will be credited back to your original method of payment.
• (e) (VAT) Unless otherwise indicated, amounts stated on the Website do not include VAT. In relation to any VAT payable for a taxable supply by us, you must pay the VAT subject to us providing a tax invoice to you.

6. INTELLECTUAL PROPERTY

• 6.1 CLIENT DATA

  • (a) The Client grants to Virescent (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Data to the extent reasonably required to provide BotanicalMapper.
  • (b) The Client:
    • (i) warrants that Virescent's use of Client Data as contemplated by this agreement will not infringe any third-party Intellectual Property Rights; and
    • (ii) indemnifies Virescent from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.

• 6.2 CLIENT DEVELOPED IP

  • (a) Any Intellectual Property Rights in materials created by the Client through its use of BotanicalMapper, including mapped datasets, plant records, area configurations, annotated photographs, custom reports, and exported data compilations (together, Client-Developed IP), shall be owned solely and exclusively by the Client.
  • (b) The Client grants to Virescent a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use Client-Developed IP solely to the extent required to provide and improve BotanicalMapper, and for no other purpose.

• 6.3 VIRESCENT IP

  • (a) All Intellectual Property Rights in BotanicalMapper, including its underlying software, platform architecture, interfaces, algorithms, and associated documentation (Virescent IP), remain solely and exclusively owned by Virescent.
  • (b) Any enhancements, developments, or improvements to BotanicalMapper made by Virescent in the course of providing it to the Client (Developed IP) shall be solely and exclusively owned by Virescent and vest in Virescent immediately upon creation.
  • (c) Virescent grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use Virescent IP and Developed IP solely to the extent required for the Client to use and enjoy the benefit of BotanicalMapper during the term of this agreement.
  • (d) The Client will not under this agreement acquire any Intellectual Property Rights in Virescent IP or Developed IP.

• 6.4 DEFINITIONS

  • For the purposes of this clause 5(a):
    • (a) "Client Data" means all data, content, and materials uploaded to or inputted into BotanicalMapper by the Client or its End Users.
    • (b) "Developed IP" means any enhancements or improvements to BotanicalMapper or Virescent IP created by Virescent in the course of providing BotanicalMapper, whether alone or in conjunction with the Client.
    • (c) "Virescent IP" means all materials, software, and technology owned or licensed by Virescent that is not Developed IP, and any Intellectual Property Rights attaching to those materials.

7. CONFIDENTIALITY

• 7.1 CONFIDENTIALITY
  • (a) Except as contemplated by this agreement, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
  • (b) This clause does not apply to:
    • (i) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
    • (ii) information required to be disclosed by any law; or
    • (iii) information disclosed by a party to its subcontractors, employees or agents for the purposes of fulfilling its obligations under this agreement (Additional Disclosees).
• 7.2 BREACH
  • If either party becomes aware of a suspected or actual breach of this clause 5(a) by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.

8. PRIVACY AND DATA PROTECTION

• 8.1 CLIENT DATA

  • (a) Words and phrases in this section shall have the meaning given to them by applicable data protection and privacy laws, including the General Data Protection Regulation 2016/679 (GDPR) and applicable national legislation that implements or supplements the GDPR or otherwise applies to data protection and privacy, and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated (Data Protection Legislation) and the terms "controller", "processor", "process" and "personal data" shall have the meanings given to those terms in such Data Protection Legislation.
  • (b) During and after the delivery of the Services, the Client agrees that Virescent will be processing personal data for its own purposes and as such will be a controller under the Data Protection Legislation and this includes (but is not limited to) the following purposes:
    • (i) Virescent providing Services;
    • (ii) Virescent and/or its subcontractors and third party suppliers use the contact details the Client and the Client's representatives to send marketing materials or other publications;
    • (iii) Virescent may process personal data concerning its other clients and contacts in other ways for its own business purposes;
    • (iv) Virescent may process and transfer personal data as necessary to effect a re-organisation of its business; and
    • (v) Virescent may share personal data with other legal or professional advisers used by us to provide the Client with legal or professional services.
  • (c) The Client's instructions are taken to include the use by Virescent, where appropriate, of independent contractors and third party suppliers appointed by us for functions such as data and file storage, back-up, destruction, billing, debt collection, legal processing and the like, in accordance with the foregoing.
  • (d) By accepting this agreement the Client gives positive consent for Virescent to obtain, store and process information about the Client as described in this clause 8.
  • (e) Each party shall comply with the terms of the Data Protection Legislation.

• 8.2 THIRD PARTY DATA

  • (a) During and after the delivery of Services, there may be limited occasions where Virescent may process on the Client's behalf as a processor any personal data the Client have provided to Virescent. Virescent will advise the Client in writing where Virescent believes Virescent may act as a processor and any such processing shall be in accordance with, and subject to, this clause 8.2 and Schedule 2.
  • (b) The Client agrees that where necessary the Client will have satisfied relevant statutory ground under the Data Protection Legislation in connection with the processing, before providing Virescent with personal data.
  • (c) The Client warrants, in relation to the personal information and all other data that it provides to Provider in connection with this agreement (Third Party Data), that:
    • (i) the Client has all necessary rights in relation to Third Party Data, such that the Services can be performed in respect of that data;
    • (ii) the Client is not breaching any Law by providing Provider with Third Party Data;
    • (iii) Provider will not breach any Law by performing the Services in relation to any Third Party Data;
    • (iv) there are no restrictions placed on the use of the Third Party Data (including by any Third Party Terms) and if there are any such restrictions, the Client has notified Provider of this, and Provider has agreed to perform the Services in respect of that data (being under no obligation to do so); and
    • (v) Provider will not breach any Third Party Terms by performing the Services in relation to any Third Party Data.
  • (d) The Client agrees at all times to indemnify and hold harmless Provider and its officers, employees and agents from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those parties, where such loss or liability was caused or contributed to a breach of a warranty in clause 8.2(a).
  • (e) The Client and Virescent acknowledge that in respect of any Third Party Data and for the purposes of the Data Protection Legislation, the Client is the controller and Virescent is the processor.
  • (f) The Client and Virescent will comply with the Data Protection Legislation.
  • (g) Virescent shall, in relation to any Personal Data processed in connection with this clause 8.2
    • (i) process that Personal Data only on written instructions of the Client as detailed in Schedule 1, as updated from time to time;
    • (ii) keep the Personal Data confidential;
    • (iii) comply with the Client's reasonable instructions with respect to processing Personal Data; - (iv) not transfer any Personal Data outside of the UK unless, in accordance with the Data Protection Legislation, Virescent ensures that:

• (A) the transfer is to a country approved as providing an adequate level of protection for Personal Data; or

• (B) there are appropriate safeguards in place for the transfer of Personal Data; or

• (C) binding corporate rules are in place; or

• (D) one of the derogations for specific situations applies to the transfer;

  • (v) assist the Client at the Client's cost in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
  • (vi) notify the Client without undue delay on becoming aware of a Personal Data breach or communication which relates to Virescent's or Client's compliance with the Data Protection Legislation;
  • (vii) at the written request of the Client, delete or return Personal Data (and any copies of the same) to the Client on termination of this agreement unless required by the Data Protection Legislation to store the Personal Data; and - maintain complete and accurate records and information to demonstrate compliance with this clause 8.2 and allow for audits by the Client or the Client's designated auditor.

• (h) Virescent shall ensure that they have in place appropriate technical or organisational measures, reviewed and approved by the Client, 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. Such measures may include, where appropriate:

  • (i) pseudonymising and encrypting Personal Data;
  • (ii) ensuring confidentiality, integrity, availability and resilience of its systems and services;
  • (iii) ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident; and
  • (iv) regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it.

9. WARRANTIES

• 9.1 SERVICE LIMITATIONS

  • BotanicalMapper is made available to the Client strictly on an 'as is' basis. Without limitation, the Client acknowledges and agrees that Virescent cannot guarantee that:
    • (a) BotanicalMapper will be free from errors or defects;
    • (b) BotanicalMapper will be accessible at all times;
    • (c) messages sent through BotanicalMapper will be delivered promptly, or delivered at all;
    • (d) information received or supplied through BotanicalMapper will be secure or confidential; or
    • (e) any information provided through BotanicalMapper is accurate or true.

• 9.2 CORRECTION OF DEFECTS

  • (a) Virescent will correct any errors, bugs or defects in BotanicalMapper which arise during the Term, and which are notified to Virescent by the Client unless the errors, bugs or defects:
    • (i) result from the interaction of BotanicalMapper with any other solution or any computer hardware or services not approved in writing by Virescent;
    • (ii) result from any misuse of BotanicalMapper; or
    • (iii) result from the use of BotanicalMapper by the Client other than in accordance with this agreement or the Documentation.
  • (b) The Client agrees to provide Virescent and its Personnel reasonable access to its premises, Personnel and IT systems to assist Virescent in correcting any defects in BotanicalMapper.

• 9.3 EXCLUSION OF OTHER WARRANTIES

  • (a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.

10. LIABILITY

• (a) (Liability) To the maximum extent permitted by applicable law, Virescent limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client's business) for loss or damage of any kind, however arising whether in contract, tort, statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by Virescent to the amount paid by the Client to Virescent in the 3 months preceding the date of the event giving rise to the relevant liability.
• (b) (Indemnity) The Client indemnifies Virescent and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client's business) arising from the Client's or the Client's employee's, client's, contractor's or agent's:
  • (i) breach of any third party intellectual property rights;
  • (ii) breach of any term of this agreement;
  • (iii) negligent, wilful, fraudulent or criminal act or omission; or
  • (iv) use of BotanicalMapper.
• (c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will Virescent be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by Virescent.
• (d) (Unfair Contract Terms) To the extent that the provisions of any applicable law shall impose restrictions on the extent to which liability can be excluded under these T&Cs or a Scope of Work including, for the avoidance of doubt, the provisions of sections 3, 6 and 11 of the Unfair Contract Terms Act 1977 in the UK (and its equivalent in any other jurisdiction) relating to the requirement of reasonableness, the exclusions set out in this clause shall be limited in accordance with such restrictions. However, any exclusions of liability that are not affected by such restrictions shall remain in full force and effect.
• (e) Nothing in this agreement shall exclude or limit a party's liability for fraud or intentional unlawful conduct by a party, or death or personal injury resulting from a party's negligence.

11. UPGRADES AND DOWNGRADES

• (a) The Client may notify Virescent that it would like to upgrade or downgrade its Subscription Tier at any time. The Client must notify Virescent to upgrade its Subscription Tier if the number of Licensed Users changes such that it exceeds the maximum number of users permitted under the Client's current Subscription Tier.

• (b) If the Client provides a notice under clause 11(a), or Virescent otherwise becomes aware that the Client's use of BotanicalMapper has changed such that it falls into a new Subscription Tier, Virescent will:

  • (i) take reasonable steps to promptly provide the Client with access to the new Subscription Tier; and
  • (ii) in the monthly billing cycle immediately following the month in which the Client's access to the new Subscription Tier was provided (First Access Month):

• (A) charge the Client the new, relevant Subscription Fee for that subsequent month (Second Access Month), and each subsequent month (subject to another notice or change under this clause 11); and

• (B) if the Subscription Fee for the Second Access Month is higher than in the First Access Month, then Virescent will charge the Client the new, relevant Subscription Fee for the proportion of the First Access Month that the Client had access to the new Subscription Tier, on a pro rata basis.

• (c) For the avoidance of doubt, if the Client chooses to downgrade its Subscription Tier, the new Subscription Fees will kick in at the start of the next billing cycle, unless Virescent notifies the Client otherwise. Virescent generally does not pro-rate downgrades in between billing cycles, however Virescent reserves the right to from time to time.

• (d) These Terms will be taken to be amended in accordance with any changes agreed in accordance with this clause 11.

12. ENDING THESE TERMS

• (a) We can end these terms and our agreement with you, if you do not comply with any part of them

• (b) We will give you a reasonable amount of notice before the terms and our agreement with you ends but if what you have done is serious then we may end our agreement with you immediately and without advance notice to you. 'Serious' means that you are interfering with the operation of BotanicalMapper or doing anything else that we think presents a big enough risk to justify us ending our agreement with you quickly.

• (c) The consequences of our agreement with you ending are as follows:

  • (i) you are no longer allowed to use BotanicalMapper, and we may remotely limit your access to it;
  • (ii) we may delete or suspend access to any accounts that you hold with us; and
  • (iii) you are not entitled to a refund to the extent you paid for BotanicalMapper of any of its features.

• 12.2 SURVIVAL

  • Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of these terms will survive and be enforceable after such termination or expiry.

• 12.3 DATA BACKUP

  • (a) Upon termination or expiry of this agreement, Virescent may delete data and material associated with the Client, including Client Data, 30 days after the end of the Term.
  • (b) Virescent will not be able to recover any such data or content more than 30 days after the end of the Term, so it is recommended that the Client backs up anything important to it.
  • (c) Virescent will not be responsible to the Client, or any user, for, and Virescent expressly disclaims any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of this agreement and any loss of data.

13. IF THE PARTIES HAVE A DISPUTE

• (a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory injunction, unless that party has complied with the requirements of this clause.
• (b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
• (c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.

14. NOTICES

• (a) Any notices required to be sent under this agreement must be sent via email using the party's email addresses set out in the Key Details and the email's subject heading must refer to the name and date of this agreement.
• (b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
• (c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.

15. FORCE MAJEURE

• (a) A 'Force Majeure Event' means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
  • (i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
  • (ii) strike or other industrial action;
  • (iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
  • (iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic, to the extent the occurrence affects the Affected Party's ability to perform the obligation.
• (b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
  • (i) reasonable details of the Force Majeure Event; and
  • (ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
• (c) Subject to compliance with clause 15(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
• (d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

16. GENERAL

• 16.1 GOVERNING LAW AND JURISDICTION
  • 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 agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
• 16.2 THIRD PARTY RIGHTS
  • 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.
• 16.3 AMENDMENTS
  • This agreement may only be amended in accordance with a written agreement between the parties.
• 16.4 WAIVER
  • No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
• 16.5 SEVERANCE
  • Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
• 16.6 JOINT AND SEVERAL LIABILITY
  • An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
• 16.7 ASSIGNMENT
  • A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
• 16.8 COUNTERPARTS
  • This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
• 16.9 COSTS
  • Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
• 16.10 ENTIRE AGREEMENT
  • This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
• 16.11 INTERPRETATION
  • (a) (singular and plural) words in the singular includes the plural (and vice versa);
  • (b) (gender) words indicating a gender includes the corresponding words of any other gender;
  • (c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
  • (d) (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
  • (e) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
  • (f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
  • (g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
  • (h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
  • (i)(includes) the word "includes" and similar words in any form is not a word of limitation;
  • (j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
  • (k) (currency) a reference to £, or "GBP", is to pound sterling currency of Great Britain, unless otherwise agreed in writing.

17. DEFINITIONS

In this agreement, capitalised terms have the meaning given to them in a Key Details, and the following phrases have the meaning set out below.

Schedule 1 — End User Licence Agreement

KEY TERMS

• 1. APPLICABILITY AND DEEMED ACCEPTANCE
  • (a) This EULA applies to any End Users of BotanicalMapper. You agree to, and will be deemed to have accepted, this EULA when you access BotanicalMapper.
  • (b) By accessing BotanicalMapper, you irrevocably consent to the terms of this EULA and represent and warrant that you will comply with the scope and restrictions of this End User Licence to BotanicalMapper provided under this EULA. If you do not accept this EULA, you must not access, use or otherwise view BotanicalMapper.
  • (c) This EULA commences on the date BotanicalMapper is provided to you and will end when written notice is provided to you.
• 1. USE OF LICENSED MATERIALS

  • 2.1 GRANT OF LICENCE

    • (a) You are granted a revocable, worldwide, royalty-free licence to use BotanicalMapper for the Purpose.
    • (b) You must only use the Licenced Materials:
    • (i) in accordance with the limitations of the Purpose;
    • (ii) in a manner that is consistent and compliant with clause 2.2; and
    • (iii) in compliance with any other restrictions notified to you in writing by the Licensee or Virescent from time to time.

• 2.2 RESTRICTIONS ON LICENCE Except in accordance with clause 2.1(b), you must not, without prior written approval from the Licensee or Virescent in their absolute discretion:

  • (a) upload sensitive information or commercial secrets to BotanicalMapper;
  • (b) upload any harmful, discriminatory, defamatory, maliciously false implications, offensive, explicit, inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material to BotanicalMapper;
  • (c) upload any material that is owned or copyrighted by a third party;
  • (d) make copies of BotanicalMapper;
  • (e) adapt, modify or tamper in any way with BotanicalMapper;
  • (f) remove or alter any copyright, trade mark or other notice on or forming part of BotanicalMapper;
  • (g) create derivative works from, translate or reproduce BotanicalMapper;
  • (h) publish or otherwise communicate BotanicalMapper to the public, including by making it available online or sharing it with third parties;
  • (i) sell, loan, transfer, sub-licence, hire or otherwise dispose of BotanicalMapper to any third party;
  • (j)decompile or reverse engineer BotanicalMapper or any part of it, or otherwise attempt to derive its source code;
  • (k) attempt to circumvent any technological protection mechanism or other security feature of BotanicalMapper;
  • (l) permit any person to use or access BotanicalMapper;
  • (m) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other user of BotanicalMapper or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with BotanicalMapper;
  • (n) share your Solution account information with any other person and that any use of your account by any other person is strictly prohibited. You, must immediately notify Virescent of any unauthorised use of your account, password or email, or any other breach or potential breach of BotanicalMapper's security;
  • (o) use BotanicalMapper for any purpose other than for the purpose for which it was designed, such as not using BotanicalMapper in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity; nor
  • (p) act in any way that may harm Virescent's reputation or that of associated or interested parties or do anything at all contrary to the interests of Virescent or BotanicalMapper.

• 2.3 LIMITATIONS OF SOLUTION

  • Virescent does not guarantee, and make no warranties, to the extent permitted by law, that:

    • (a) BotanicalMapper will be free from errors or defects;
    • (b) BotanicalMapper will be accessible or available at all times; or
    • (c) any information provided through BotanicalMapper is accurate or true.
• 1. DISCLAIMERS
  • (a) Virescent does not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information, your computer systems, mobile phones or other electronic devices arising in connection with use of BotanicalMapper.
  • (b) You must take your own precautions to ensure that the process which you employ for accessing BotanicalMapper does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
  • (c) To the maximum extent permitted by applicable law, we limit all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to BotanicalMapper to £100 in aggregate. This includes the transmission of any computer virus.
  • (d) You indemnify Virescent and its employees, agents and contractors (Personnel) in respect of all liability for loss, damage or injury which may be suffered by any person arising from, or in connection with, your use of BotanicalMapper or breach of this EULA (or both, as the case may be).
  • (e) You acknowledge and agree that Virescent will have no liability for any act or omission by you which results in or contributes to damage, loss or expense suffered by you or another user in connection with the use of BotanicalMapper and indemnify Virescent for any such damage, loss or expense.
  • (f) All express or implied representations and warranties given by Virescent or its Personnel are, to the maximum extent permitted by applicable law, excluded. Where any law implies a condition, warranty or guarantee into this EULA which may not lawfully be excluded, then to the maximum extent permitted by applicable law, our (and our Personnel's) liability for breach of that non-excludable condition, warranty or guarantee will, at our option, be limited to:
    • (i) in the case of goods, their replacement or the supply of equivalent goods or their repair; and
    • (ii) in the case of services, the supply of the services again, or the payment of the cost of having them supplied again.
  • (g) To the maximum extent permitted under applicable law, under no circumstances will Virescent or its Personnel be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with BotanicalMapper, this EULA or their subject matter.
• 1. TERMINATION
  • 4.1 AUTOMATIC TERMINATION
    • This agreement will be automatically terminated, and your licence to BotanicalMapper will be immediately revoked, if the Head Agreement expires or is terminated.
  • 4.2 TERMINATION BY VIRESCENT OR LICENSEE
    • Virescent or the Licensee (or both) may terminate this agreement immediately by notice to you (as an individual user, without terminating the Head Agreement) if:
    • (a) you are in breach of any term of this agreement and have failed to remedy the breach within 10 Business Days after the notice; or
    • (b) you commit, or Virescent or the Licensee reasonably suspects that you may commit, any breach of this agreement including, without limitation, clause 2.
  • 4.3 EFFECT OF EXPIRY OR TERMINATION
    • (a) In the event of expiry or termination of this EULA, you must:
      • (i) immediately cease using BotanicalMapper; and
      • (ii) remove BotanicalMapper from all materials in your care, custody or control that feature BotanicalMapper, and, if BotanicalMapper cannot be removed, then at Virescent's option, return or destroy all such material.
    • (b) Termination of this agreement will not affect any rights accruing to either party to the date of termination nor any obligation performed to the date of termination or any obligation which expressly or impliedly survives termination of this agreement.
  • 4.4 YOUR DATA ON TERMINATION
    • You are solely responsible for removing any information you store in BotanicalMapper prior to termination of this agreement. Virescent will not be liable to you for any loss of your or any other user's data or information upon termination of this agreement.
• 1. GENERAL
  • 5.1 GOVERNING LAW AND JURISDICTION
    • This agreement is governed by the law applying in England and Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
  • 5.2 THIRD PARTY RIGHTS
    • 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.
  • 5.3 WAIVER
    • No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
  • 5.4 FURTHER ACTS AND DOCUMENTS
    • Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this agreement.
  • 5.5 ASSIGNMENT
    • You can't assign, novate or otherwise transfer your rights or obligations under this agreement without Virescent's prior consent.
  • 5.6 ENTIRE AGREEMENT
    • This agreement embodies the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

Schedule 2 — Processing of Personal data by Virescent Ltd

• 1. SCOPE
  • Personal data may be collected, stored and analysed on Virescent's systems or the Client's systems only and not within the sole control of Virescent at any time.
• 1. NATURE
  • Electronically, automatically through BotanicalMapper.
• 1. PURPOSE OF PROCESSING
  • To provide the Services as contracted between Virescent and the Client and in accordance with this agreement.
• 1. DURATION OF PROCESSING
  • The duration of this agreement only.
• 1. CATEGORIES OF PERSONAL DATA
  • Name, email address, web session activity.
• 1. CATEGORIES OF DATA SUBJECT
  • Employees and contractors of the Client, employees and contractors of the Client's customers , customers of the Client.

Supplemental terms (BotanicalMapper product)

The following additional terms apply to the Client's use of BotanicalMapper and supplement this agreement above. Our Privacy Policy and Cookies Policy also apply.

Public maps and published content

BotanicalMapper allows the Client and its Licensed Users to publish selected maps, plant records, landmarks, photographs, descriptions and related information as publicly accessible web pages. This section applies to content published using BotanicalMapper's public map feature. It does not permit republication of the BotanicalMapper platform, its software or its documentation.

By publishing content, the Client confirms that it has the necessary rights and permissions to make that content publicly available and that doing so does not infringe the rights of any third party or breach any applicable law. The Client remains solely responsible for all published content, including content published by its Licensed Users. The Client must ensure that all Licensed Users comply with this section when publishing content. Virescent reserves the right, at its sole discretion, to remove, disable or restrict access to any published content that breaches this agreement, infringes third-party rights, violates applicable law, or may expose BotanicalMapper, its users or any third party to legal, security or reputational risk.

On eligible plans, the Client may publish a public map with a shareable link and control what visitors see, including whether content is listed on BotanicalMapper's Featured Maps page where that option is available.

Content complaints

If you believe content (including on a public map) infringes your rights or is unlawful, email info@botanicalmapper.com with subject Content complaint, the URL, and details of your complaint.

Contact

Virescent Ltd (company number 17206041)
Registered office: 8 Acreman Street, Cerne Abbas, Dorchester, Dorset DT2 7JX
Email: info@botanicalmapper.com

For individual subscriptions, see Individual Terms. For which document applies, see Terms.