These Terms will apply to the Contract between XD and the Customer for use of the Services. The Customer should read these Terms carefully (with the Customer’s attention particularly being drawn to clauses 12 and 13) and make sure that they understand them before applying to use the Services.
The Customer should tick the box indicated on the sign-up page to accept these Terms. If the Customer does not accept these Terms it will not be able to apply to use the Services.
The Customer should print a copy of these Terms or save them to its computer for future reference.
XD may amend these Terms from time to time as set out in clause 22. These Terms were most recently changed by XD on Tuesday 8th May 2018
These Terms, and any Contract between XD and the Customer, are only in the English language.
1.1 The definitions and rules of interpretation in this clauseapply in these Terms.
App(s): the WhosOff web application and any WhosOff mobile applications which XD may make available to the Customer and its Users to download from such application provider or providers as XD may determine from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or 11.6.
Contract: the contract between XD and the Customer for the supply of the Services in accordance with these Terms.
Customer: the company, firm or person who purchases the Services or on whose behalf the Services are purchased.
Customer Data: the data (of whatever nature) inputted by the Customer, Users, or XD on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Customer Subscription: the customer subscription purchased by the Customer pursuant to clause 4.1 which entitles the Customer and its Users to access and use the Services in accordance with these Terms.
Data Protection Legislation: (i)unless and until until the General Data Protection Regulation ((EU) 2016/679 ) (GDPR) is no longer directly applicable in the UK,the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then (ii)any successor legislation to the GDPR or the Data Protection Act 1998.
Data Subject: for the purpose of this Contract includes all living individuals about whom XD holds Personal Data on behalf of the Customer.
Documentation: the documents and information made available to the Customer by XD online via the Website and/or App from time to time which sets out the description of the Services and the relevant user instructions.
Fees: the subscription fees payable by the Customer for the Customer Subscription, as set out on the Website and amended from time to time.
Free Trial: the free trial period which may be offered by XD to potential customers who have not used the Services before to enable such customers to try out the Services and evaluate whether the Services meet their needs.
Monthly Users: those Users registered on the Customer’s account for all or part of any day during that month.
Normal Business Hours: 9.00am to 5.30pm local UK time, each Business Day.
Personal Data: has the meaning set out in Article 4(1) of the GDPR.
Services: access to and use of the Software,Documentation and App and any additional features and/or services as may be agreed between the parties from time to time.
Software: the WhosOff online staff holiday planner software applications provided by XD as part of the Services.
Subscription Term: the term of the Contract.
Terms: these terms and conditions as amended from time to time in accordance with clause 22.
Users: those employees of the Customer who are authorised by the Customer to use the Services as listed in the Customer’s account area of the Website.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether byre-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: www.WhosOff.com www.WhosOff.co.uk or such other website as is notified to the Customer by XD from time to time.
XD: X:drive Computing Limited, a company incorporated and registered in England and Wales with company number 03736333 whose registered office is at The Beer Cart Building, Beer Cart Lane, Canterbury, Kent CT1 2NY.
1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company,corporation or other body corporate, wherever and however incorporated or established.
1.4 A reference to writing or written includes faxes and email.
1.5 A reference to a month shall be to a calendar month.
2. BASIS OF CONTRACT
2.1 These Terms shall apply to the Contract to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which may be implied by trade, custom, practice or course of dealing.
2.2 To use the Services the Customer must fully complete and submit the online sign up form on the Website. If a Free Trial is offered the end date of it shall be as set out on the sign up form.
2.3 The person submitting the sign up form on behalf of the Customer confirms that they have the authority to bind the Customer and enter into contracts on its behalf and that the information provided as part of thesign up process is correct.
2.4 Submitting the sign up form is an offer by the Customer to enter into a Contract with XD which XD is free to accept or decline at its discretion.
2.5 XD may send the Customer an email acknowledging receipt of the Customer’s request to sign up to the Services however a Contract shall only come into existence when XD starts to provide the Customer with the Services.
3. FEES AND PAYMENT
3.1 The Customer shall pay the Fees to XD for the Customer subscription in full without deduction, set-off, withholding or counter-claim in accordance with this clause 3.
3.2 Should the Customer wish to continue to use the Services after the end of the Free Trial, the Customer must provide XD with valid,up-to-date and complete credit card details prior to the end of the Free Trial otherwise access to the Services shall be deactivated.
3.3 On the last Business Day of each month following the end of the Free Trial and for the remainder of the Subscription Term, XD shall record the number of Monthly Users and calculate the Fees payable which shall be notified to the Customer in its account area of the Website.
3.4 Following notification of the Fees the Customer shall have 14 days to raise any disputes or queries with XD. If this is not done then the Fees shall be collected automatically in accordance with clause 3.8.
3.5 XD shall consider any dispute or query raised and notify its decision to the Customer within 14 days after which time any outstanding Fees shall be collected. XD’s decision on in relation to any disputed invoice shall be final.
3.6 The Customer acknowledges that the Fees shall be payable in arrears based on the number of Monthly Users and whether any additional services have been selected and therefore may vary from month to month.
3.7 If the Free Trial ends or the Contract is terminated partway through a month XD shall apply the Fees for the whole month.
3.8 The Fees shall be collected on or around the 15th day of each month by recurring credit card payment from the credit card notified by the Customer to XD.
3.9 If XD has not received payment on the due date, and without prejudice to any of its other rights and remedies, XD may:
- (a) without liability to the Customer, disable the Customer’s account and access to all or part of the Services and XD shall be under no obligation to provide any or all of the Services while the due amount concerned remains unpaid; and
- (b) charge interest on such due amounts at an annual rate equal to 5% over the Bank of England base rate from time to time accruing daily and compounding quarterly from the due date until fully paid, whether before or after judgment; and
- (c) charge the Customer on a full indemnity basis for the legal and/or administrative costs incurred in attempting to recover or recovering any monies due.
3.10 All amounts and Fees stated or referred to in the Contract are:
- (a) expressed in GB pounds sterling;
- (b) subject to clause 13.5(b) and 13.6 non-cancellable and non-refundable; and
- (c) exclusive of VAT, which (where applicable) shall be added to XD’s invoice(s) at the appropriate rate.
3.11 The Customer’s EU tax number (if applicable) must be added to the Customer’s account area of the Website. Any requests for refunds of VAT(for whatever reason) shall only be considered for the tax year in which the request is made. XD reserves the right to apply an administration fee of up to£45 per refund processed.
3.12 XD shall be entitled to increase the Fees by giving the Customer 30 days’ notice in writing. If the Customer does not agree to any such increase, it may terminate the Contract in accordance with clause 14.1 or discontinue the relevant service, in accordance with clause 6.3, as appropriate.
3.13 If the Customer has or is likely to have at least 50 Users registered to its account it may request to pay the Fees in advance on a quarterly or yearly basis on receipt of a written invoice rather than by recurring credit card payment. In the event XD agrees to such a request:
- (a) the Fees shall be based on the estimated Monthly Users;
- (b) each invoice shall attract an administration fee of up to £45 and must be paid in full before the start of the time period covered by such invoice;
- (c) if the estimated number of Monthly Users is exceeded by the Customer XD reserves the right to charge the Customer additional Fees which are payable by the Customer to XD on request; and
- (d) clauses 3.2, 3.6, 3.7 and 3.8 shall not apply to the Contract.
4. CUSTOMER SUBSCRIPTION
4.1 Subject to the restrictions set out in this clause 4 and the Customer paying the Fees in accordance with clause 3 following the end of the Free Trial, XD grants to the Customer a non-exclusive, non-transferable revocable right to permit the Users to use the Services during the Subscription Term solely for the Customer's internal business operations.
4.2 In relation to the Users, the Customer undertakes that eachUser shall keep a secure password for his use of the Services and that eachUser shall keep his password confidential.
4.3 The Customer shall not use the Services (or any aspect of them) to:
- (a) access, store, distribute or transmit any Viruses, or any material of any type during the course of its use of the Services that:
- (i) is unlawful, harmful, threatening, defamatory, vulgar, obscene, infringing, abusive, harassing, racially or ethnically offensive or otherwise objectionable;
- (ii) facilitates illegal activity;
- (iii) depicts sexually explicit images;
- (iv) promotes unlawful violence;
- (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- (vi) in a manner that is otherwise illegal or causes damage or injury to any person or property;
- (b) impersonate, falsely state or otherwise misrepresent its connection or affiliation with any person;
- (c) transmit any spam or junk mail or any other unsolicited advertising or promotional material,
and XD reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to and/or delete any material that breaches the provisions of this clause 4.3.
4.4 The Customer shall not:
- (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- (i) and except to the extent expressly permitted under these Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- (b) disguise or attempt to disguise the origin of any Customer Data or access to the Services; or
- (c) access or use all or any part of the Services in order to build a product or service which competes with the Services; or
- (d) access or use all or any part of the Services to provide services to third parties; or
- (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, charge, encumber or otherwise commercially exploit, or otherwise make the Services available to any third party except the Users, or
- (f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than from XD and as provided under this clause 4.
4.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify XD. Until the Customer notifies XD, the Customer shall be responsible for any unauthorised use of theServices.
4.6 For the avoidance of doubt, the rights provided under thisclause 4 are granted to the Customer only, and shall not be considered grantedto any subsidiary or holding company of the Customer.
5.1 XD shall, during the Subscription Term, provide the Services to the Customer in accordance with and subject to these Terms.
5.2 The Customer acknowledges that:
- (a) its use of the Services will not be uninterrupted or error free; and
- (b) downtime will inevitably occur from time to time due to planned maintenance (which XD shall use reasonable endeavours to give the Customer at least 24 hours advanced notice of) and unplanned maintenance and/or other events.
5.3 XD will, as part of the Services and at no additional cost to the Customer, provide the Customer with XD’s standard customer support services during Normal Business Hours. XD may amend the scope of the support services offered (including the provisions of clauses 5.4 to 5.7 below) in its sole and absolute discretion from time to time.
5.4 XD shall use reasonable endeavours to respond to the Customer’s requests for support:
- (a) if made during Normal Business Hours within 36 hours of such request; and
- (b) if made outside Normal Business Hours within 72 hours of such request.
5.5 The Customer shall pay XD’s reasonable costs to the extent support is required where:
- (a) the fault is attributable to something other than the Software (e.g. third party software or telecommunications or hardware failures);
- (b) the Customer has failed to implement a recommendation previously made by XD;
- (c) the Customer has operated the Software incorrectly;
- (d) a modification has been made to the Software without XD’s written consent; or
- (e) the Customer is in breach of the Contract.
5.6 Support is only available for the most recent version of the Software. The Customer shall permit XD to upgrade and modify the Software from time to time at its sole discretion.
5.7 Support shall not be provided unless the Customer has anti-virus software installed, maintained, upgraded and operating on a continuous basis.
6. ADDITIONAL SERVICES
6.1 XD may offer Customer specific branding or other additional Software features or services from time to time. These may be added to the Services provided under the Contract by agreement between the parties.
6.2 The Customer may be required to enter into additional,service specific terms and conditions with XD and/or third parties if it wishes to take such additional services.
6.3 To the extent such services are optional, the Customer may remove particular services from the Services provided under the terms of the Contract by giving XD a minimum of 30 days’ notice in writing. Unless otherwise expressly provided in any applicable, service specific terms, XD may stop providing any such additional service at any time.
7. CUSTOMER DATA
7.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2 XD shall use reasonable endeavours to regularly back up the Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for XD to use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data by XD. XD shall not be responsible for any loss,destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties contracted by XD to perform services related to Customer Data maintenance and back-up for which XD shall remain fully liable under clause 7.9).
7.4 Both parties will comply with all applicable requirements of the Data Protection Legislation.This clause 7 is in addition to, and does not relieve, remove or replace, aparty's obligations under the Data Protection Legislation.
7.5 The Customer acknowledges and agrees that XD may access the Customer Data:
- (a) if required to do so by law;
- (b) to enforce these Terms or protect any other rights it may have;
- (c) to respond to claims that any Customer Data infringes the rights of third parties; or
- (d) to respond to the Customer or any User’s requests for support.
7.6 The Customer permits XD to access, aggregate, analyse and interpret the Customer Data for the purpose of producing anonymised reports and data (for example to work out the number of Users) for the internal business use of XD or for provision by XD to its customers and third parties, provided that personal data is not processed and no part of the Customer Data is disclosed or made available to any third party under this clause 7.6 in unmodified, identifiable or readily extractable form.
7.7 The Customer Data shall include personal data relating to the Users such as their name, address, email address, phone number and staff leave information relating to working times, holiday, sickness and other absences. XD shall process such personal data for the purpose of providing the Services during the Subscription Term.
7.8 Without prejudice to the generality of clause 7.4, when XD processes personal data on the Customer’s behalf while performing its obligations under the Contract, the parties record their intention that the Customer shall be the Data Controller and XD shall be a Data Processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation) and:
- (a) XD shall only process that Personal Data on the written instructions of the Customer unless XD is required by the laws of any member of the European Union, the laws of England and Wales or by the laws of the European Union applicable to XD to process Personal Data (Applicable Laws );
- (b) XD shall promptly notify the Customer if it believes the instructions from the Customer violates any applicable Data Protection Legislation;
- (c) XD shall provide the Customer with such reasonable assistance, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- (d) XD shall keep, maintain and make available to the Customer all information necessary for the Customer to demonstrate compliance with the Customer’s obligations as data controller, which shall include allowing for and contributing to audits and inspections conducted by the Customer;
- (e) XD shall notify the Customer without undue delay on becoming aware of a Personal Data breach;
- (f) XD shall, at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of this Contract unless required by Applicable Law to store the Personal Data;
- (g) XD shall maintain complete and accurate records and information to demonstrate its compliance with this clause 7;
- (h) XD shall not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
o the Customer or XD has provided appropriate safeguards in relation to the transfer;
o the Data Subject has enforceable rights and effective legal remedies;
- XD complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
o XD complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
- (i) the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of the relevant Personal Data to XD for the purposes and duration of this Contract so that XD may lawfully process the Personal Data in accordance with the Contract on the Customer's behalf;
- (j) the Customer shall ensure that the relevant individuals (which includes all Users) have been informed of, and where applicable have given their consent to, such processing as required by all applicable Data Protection Legislation; and
- (k) each party shall take appropriate technical and organisational measures to ensure the security of personal data at a level appropriate to the risk and to prevent unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7.9 The Customer consents to XD appointing third party processors of Personal Data under this Contract provided that XD has entered with the third party processor into a written agreement in corporating terms which are substantially similar to those set out in this clause. As between the Customer and XD, XD shall remain fully liable for all acts and omissions of any third party processor appointed pursuant to this clause.
8. THIRD PARTY PROVIDERS
8.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. XD makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
8.3 XD does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer shall:
- (a) provide XD with:
- (i) all necessary co-operation in relation to the Contract; and
- (ii) all necessary access to such information as may be required by XD;
in order to provide the Services, including but not limited to Customer Data,security access information and configuration services;
- (b) keep the Customer contact information stored in its account area of the Website, complete accurate and up to date at all times;
- (c) comply with all applicable laws and regulations (including local laws of any applicable jurisdiction) with respect to its activities under the Contract;
- (d) carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner;
- (e) ensure that the Users use the Services in accordance with these Terms and be responsible for any User’s breach of these Terms;
- (f) obtain and shall maintain all necessary licences, consents, and permissions necessary for XD to provide the Services;
- (g) ensure that its network and systems comply with the relevant specifications provided by XD from time to time; and
- (h) be solely responsible for procuring and maintaining its own internet connectivity and other telecommunications links necessary for XD to provide the Services.
10. PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that XD and/or its icensors (if applicable) own all intellectual property rights in the Services(including the Software, Documentation and App) and the Website. Except as expressly stated these Terms do not grant the Customer any rights to, or in,patents, copyright, database right, trade secrets, trade names, trade marks(whether registered or unregistered), or any other rights or licences in respect of any aspect of the Services or the Website.
10.2 XD confirms that it has all the rights in relation to the Services and the Website that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
10.3 Nothing in these Terms shall prevent XD from entering into similar contracts with third parties, or from independently developing, using,selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party's Confidential Information shall not be deemed to include information that:
- (a) is or becomes publicly known other than through any act or omission of the receiving party;
- (b) was in the other party's lawful possession before the disclosure;
- (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
- (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Contract.
11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract and shall impose confidentiality obligations at least as onerous as are included in this clause 11 on such employees or agents.
11.4 Neither party shall be responsible for any loss,destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute XD's Confidential Information.
11.6 XD acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 This clause 11 shall survive termination of the Contract, however arising.
The Customer’s attention is particularly drawn to this clause
12.1 The Customer shall defend, indemnify and hold harmless XD against claims, actions, proceedings, losses, damages, expenses and costs(including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:
- (a) the Customer is given prompt notice of any such claim;
- (b) XD provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
- (c) the Customer is given sole authority to defend or settle the claim.
13. LIMITATION OF LIABILITY
The Customer’s attention is particularly drawn to this clause
13.1 This clause 13 sets out the entire financial liability ofXD (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
- (a) arising under or in connection with the Contract;
- (b) in respect of any use made by the Customer of the Services or any part of them; and
- (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
- (a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, any documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
- (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
13.3 Except as expressly and specifically provided in these Terms:
- (a) the Customer assumes sole responsibility for:
- (i) ensuring the facilities and functions of the Services meet the Customer’s requirements;
- (ii) the results obtained from the use of the Services, the Website and the Apps by the Customer, and for conclusions drawn from such use; and
- (iii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
- (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
- (c) the Services are provided to the Customer on an "as is" and “as available” basis.
13.4 Nothing in these Terms excludes the liability of XD:
- (a) for death or personal injury caused by XD's negligence;
- (b) for fraud or fraudulent misrepresentation; or
- (c) for any other matter for which it would be illegal, invalid or unenforceable for XD to exclude, limit or attempt to exclude or limit liability for.
13.5 Subject to clause 13.3 and clause 13.4:
- (a) shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
- (b) XD's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Fees paid for the Customer Subscription during the six months immediately preceding the date on which the claim arose.
13.6 The Fees are generally non-refundable however if the Services are unavailable for a reason other than those set out in clause 15 fora period of one week or more XD may, if requested and at its sole discretion,credit the Customer’s account with an amount equal to the pro rated Fees payable in respect of that period.
14. TERM AND TERMINATION
14.1 Subject to clause 14.2 the Contract shall continue on a rolling monthly basis until terminated in accordance with the remainder of this clause 14 or by either party giving not less than 30 days’ notice in writing tothe other.
14.2 If it has been agreed that the Customer may pay the Fees in accordance with clause 3.13 then the Contract shall continue on a rolling quarterly or yearly basis (depending on the applicable invoicing frequency agreed) in accordance with the remainder of this clause 14 or by either party giving not less than 3 months’ notice in writing to the other. For the avoidance of doubt, no Fees paid shall be refunded in the event the Contract is terminated (for whatever reason) part way through a quarter or year (as applicable) already paid for.
14.3 Without limiting its other rights or remedies, XD may terminate the Contract with immediate effect by giving notice in writing to the Customer if:
- (a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
- (b) the Customer is in breach of or is suspected by XD to be in breach of its obligations under clauses 4.3 or 4.4;
- (c) the Customer is subject to a Change of Control.
14.4 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other with immediate effect by giving notice in writing if:
- (a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
- (b) the other party has a bankruptcy order made against him or enters into any composition or arrangement with or for the benefit of his creditors, if an individual, or if a company, suffers an insolvency related event comprising either it being unable to pay its debts as they fall due, a petition is filed or order made for its winding up or an administrator, liquidator or receiver is appointed;
- (c) the other party ceases, or threatens to cease, to trade; or
- (d) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
14.5 On termination of the Contract for any reason:
- (a) all licences granted under the Contract shall immediately terminate and XD may immediately deactivate the Customer’s access to its account;
- (b) each party shall return (or destroy at the other party’s option) and make no further use of any Confidential Information, personal data, equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
- (c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14.6 Following termination XD shall store a back up of the Customer Data for up to six months after which time it shall be deleted without further notice to the Customer.
15. FORCE MAJEURE
XD shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation,strikes, lock-outs or other industrial disputes (whether involving the workforce of XD or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion,malicious damage, compliance with any law or governmental order, rule,regulation or direction, accident, breakdown of plant or machinery, fire,flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
16.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
17.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be invalid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. ENTIRE AGREEMENT
18.1 The Contract constitutes the whole agreement between the parties and supersedes any previous contract, licence, arrangement,understanding or agreement between them relating to the subject matter they cover.
18.2 The Customer acknowledges and agrees that it has not relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
19.1 The Customer shall not, without the prior written consent of XD, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 XD may at any time assign, transfer, charge, sub-contractor deal in any other manner with all or any of its rights or obligations under the Contract.
20. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. THIRD PARTY RIGHTS
The Contract does not confer any rights on any person or party(other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
22.1 XD may revise these Terms from time to time and the current version of the Terms shall apply to the Contract.
22.2 Whenever XD revises these Terms in accordance with this clause 22, XD will give you notice of this on the Website by stating that these Terms have been amended along with the relevant date at the top of this page.
22.3 Except for any variation by XD in accordance with this clause 22, no variation of the Contract shall be effective unless it is agreed between the parties in writing.
23.1 Any notice required to be given under the Contract shall bein writing and shall be delivered personally or be sent by recorded delivery post or by email, to the address or email address set out at clause 23.4, or to such other address or email as is otherwise specified by one party by notice in writing to the other.
23.2 XD may alternatively give notice to the Customer via a message on the Customer’s account area of the Website.
23.3 Any notice shall be deemed to have been duly received:
- (a) if delivered personally, when left at the address and for the party referred to in this clause; or
- (b) if sent by recorded delivery post on the second Business Day after posting; or
- (c) if sent by email upon receipt of a delivery receipt email from the correct email address; or
- (d) if delivered via a message on the Website, within two hours of its posting on the Website.
23.4 The addresses for notices are as follows:
- XD: X:drive Computing Limited, Office D and E, 2nd Floor, 1 Beer Cart Lane, Canterbury CT1 2NY
- Customer: the postal address and email address of the Customer as provided to XD when the Customer signed up to the Services.
23.5 If deemed receipt would occur on a day which is not a Business Day, deemed receipt shall take place at 10.00 am on the next Business Day.
23.6 The provisions of this clause 23 shall not apply to the service of any proceedings or other documents in any legal action.
24. GOVERNING LAW AND JURISDICTION
24.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
24.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out ofor in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).