These General Terms and Conditions including its Annexes (“General Terms”) governs the overall relationship of the parties in relation to the Services provided by Xledger to the Customer and Customer Affiliates and forms part of the Agreement (as defined below) between Xledger Limited (also referred to as “Xledger”, “we” “us”, or “our”) and you or the entity you represent (“Customer”, “you” or “your”).
The Agreement takes effect from the date when you and we execute an Order (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts
1. Agreement and Interpretation
1.1. The definitions and rules of interpretation set out in clause 14 apply in these General Terms” .
1.2. Our agreement is made up of the following (in order of precedence):
(a) the order form, executed by the Parties (“Order“); and
(b) the Xledger SaaS Specific Terms;
(c) any other relevant Specific Terms including the Xledger Professional Services Specific Terms and/or the Xledger Support Service Specific Terms;
(d) these General Terms; and
(e) the Xledger Data Processing Addendum (“Data Processing Addendum”).
(together the “Agreement“) in each case as such terms are updated by Xledger from time to time.
1.3. The terms of your purchase order or any other business processing document (if any) shall be superseded and excluded by the terms and conditions of the Agreement and therefore have no effect. If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1.2, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.
1.4. An Agreement shall not come into force, be legally binding or have any other effect unless an Order has been signed by the authorised representatives of both parties to it.
2. Provision of Services
2.1. We shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
2.2. We agree to perform the Services
(a) with reasonable skill and care in accordance with industry standards; and
(b) in accordance with all Applicable Laws,
2.3. We do not warrant that:
(a) the Customer’s use of the Services will be uninterrupted or error-free; or
(b) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.
2.4. We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2.5. We shall follow our standard archiving procedures for Customer Data (as such procedure may be amended or updated by us in our sole discretion from time to time). In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Xledger shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back).
3. Customer Obligations
3.1. You shall provide us with all necessary co-operation in relation to the Services in order to assist us in fulfilling the obligations under the Agreement.
3.2. You shall also provide all necessary access to such information as may be required by us in order to provide the Licensed Materials and perform the Services, including but not limited to Customer Data, security access information and configuration services.
3.3. You shall carry out all other responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable, cost or delivery schedule as reasonably necessary.
3.4. The Customer shall only use the Services in accordance with the Agreement.
3.5. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data.
3.6. Without affecting your other obligations under the Agreement, you shall comply with all Applicable Laws with respect to your activities under the Agreement.
3.7. Services may be used by each of the Affiliates of the Customer who are a Permitted Entity (as described in the relevant Order) . The Customer shall be responsible for each Permitted Entity’s use of the Services and compliance with the Agreement. Any rights of any Permitted Entity to use or access the Service will terminate automatically on ceasing to be an Affiliate.
4. Fees and Payment
4.1. You shall pay the Fees and any agreed Expenses to us in accordance with this clause 4.
4.2. Subject to clause 4.4, Fees and payment terms are specified in the applicable Order or (failing that) will be calculated at the applicable prevailing rates. Prevailing Rates will be applied automatically without notice at the expiry of the Initial Term.
4.3. Unless otherwise stated in an Order, we shall issue an invoice in respect of the Fees and any agreed Expenses monthly in arrears.
4.4. Unless agreed otherwise in an Order, invoices shall be payable by you within thirty (30) days of the date of the invoice (“Invoice Period”). Other than in the case of a reasonably disputed payment, any payments not received by the end of the Invoice Period will be subject to interest at a rate of three per cent. (3%) above the prevailing base rate of HSBC Bank Plc (“Default Interest”). Disputes must be raised within 21 days of the invoice in writing by the Customer. Failure to raise a dispute within this period will deem the invoice to have been properly submitted and payment will be due by the stated date.
4.5. All fees are based on the Licensed Materials and or Assumptions agreed in an Order. In the event actual use exceeds the ordered quantity. additional Licensed Materials must be purchased and/or additional charges may be due and these shall be invoiced to you at the then current rates. For the avoidance of doubt, we will bill you based on and you will be deemed to have purchased the higher of: (i) the amount set out in the Order; or (ii) actual usage (“Purchased Quantity”), regardless of the amount set out in the Order. You may not decrease the Purchased Quantity during the Term and there shall be no fee adjustments or refunds for any decreases in usage .
4.6. In the event that payment is not received in accordance with clause 4.4, in addition to any other rights it may have, we will be entitled to suspend any or all Services upon ten (10) days’ written notice to you and/or invoice you for any discount that has been applied by Xledger under the Agreement and/or to modify the payment terms, and to request full payment before any additional performance is rendered by us.
4.7. Unless otherwise stated in the Order, the Fees are stated excluding value added tax (“VAT”). VAT or any other such tax which may be payable from time to time as applicable shall be charged in addition to the Fees at the prevailing rate.
4.8. Xledger may increase the Fees annually, for usage from 1st January, in line with the percentage increase in the Retail Prices Index in the preceding period, as published in the month prior to the increase notice. We shall provide you with thirty (30) days’ notice of any such change. No Fees will be varied during the first year following the Effective Date of the Order.
4.9. In the event that we anticipate extraordinary Expenses as a result of a foreseeable Event of Force Majeure, we shall seek approval by you of such anticipated extraordinary Expenses when it becomes clear that an Event of Force Majeure is inevitable.
4.10. All Fees shall be paid in the currency set out in the Order or British Pound Sterling if no currency is set out in the Order.
4.11. Invoices may be validly issued where produced and sent electronically irrespective of whether any Customer purchase order has been issued.
5. Term, Termination and Suspension
5.1. The Agreement will come into effect on the date when the relevant Order is signed by authorised representatives of both parties (the “Effective Date”) and will continue until all Services have either expired or been terminated in accordance with its terms.
5.2. The Services will commence on the Services Start Date as set out in each Order. Where the Service has a minimum term, it will commence on the Services Start Date and shall continue for the longer of: (i) one (1) year; or (ii) the term specified in an Order (“Initial Term”). The Agreement shall automatically renew for consecutive one (1) year period(s) (each a “Renewal Term”) unless: (i) either party gives the other written notice of termination not less than ninety (90) days prior to the end of the Initial Term or the Renewal Term (as applicable), in which case the Agreement shall terminate upon the expiry of the Initial Term or Renewal (as applicable); or (ii) until terminated in accordance with the remaining provisions of this clause 5. Initial Term together with any Renewal Term shall together be known as the “Term”.
5.3. Either party may terminate the Agreement including Orders executed thereunder immediately upon written notice: (i) in the event that the other party commits a non-remediable material breach of the Agreement, or if the other party fails to remedy any remediable material breach within thirty (30) days of being notified in writing of such breach, except for breach of clause 4.1 which shall have a ten (10) day remedy period; or (ii) if the other party becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or notice has been received of a pending appointment of or the appointment of a receiver, manager, administrator or administrative receiver over all or any part of its undertaking, assets or income, intends to pass or has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order, or has ceased or threatened to cease to trade (each of the events described in this sub-clause being an “Insolvency Event”). Where a party has rights to terminate the Agreement, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Order, provided however that termination of the Agreement shall automatically terminate all Orders executed under such Agreement. Orders that are not terminated shall continue in full force and effect under their terms.
5.4. If you do not pay an undisputed invoice within sixty (60) days of its due date, in addition to any other rights it may have, Xledger may at its sole discretion suspend any or all Services (including for the avoidance of doubt any applicable Subscription Services (as defined in the SaaS Specific Terms) or immediately terminate the Agreement. Upon termination for non-payment, the Agreement and all of your rights hereunder will terminate without further notice.
5.5. Termination shall not excuse your obligation to pay in full any and all amounts due, nor shall termination by us result in a refund of fees paid. If we terminate the Agreement for your non-payment or your other material breach, you agree to pay to us the remaining value of the then-current Initial Term or Renewal Term (that you acknowledge as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to the aggregate recurring fees (as set forth in the Order) that will become payable during the cancelled portion of such Initial Term or Renewal Term.
5.6. On expiry or termination of the Agreement for any reason:
(a) all licences granted under the Agreement shall immediately terminate and you shall immediately cease all use of the Services and/or the Documentation;
(b) you shall certify that you have returned or destroyed all copies of the applicable Licensed Materials, and Confidential Information of ours and acknowledge that your rights to use the same are relinquished.
5.7. On expiry or termination of the Agreement or Order for any reason:
(a) following a written request from you and provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination), we shall make available to you within 30 days of receipt of your written request a file containing those elements of Customer Data which you are unable to download yourself from the system, including PDF copies of documents stored in the system. We may destroy any such Customer Data in our possession if no such request is received within thirty (30) calendar days of the effective date of termination.
(b) You will be responsible for downloading all Customer Data from the Application that does not fall under paragraph 5.7(a) above. You will complete this within thirty (30) calendar days from the effective date of termination. We may destroy any such Customer Data that remains on the system after a period of 30 days from the effective date of termination.
5.8. Any termination of an Order will not automatically terminate any other agreements made in relation to other Orders, unless stated otherwise.
6. Intellectual Property Rights
6.1. All rights not expressly granted in the Agreement are reserved by us and Xledger’s Licensors. You acknowledge that: (i) all Licensed Materials are licensed and not sold; (ii) you acquire only the right to use the Licensed Materials and we and Xledger’s Licensors shall retain sole and exclusive ownership of and all rights, title, and interest in the Licensed Materials, including without limitation (whether developed by us, you or a third party): (a) Intellectual Property embodied or associated with the Licensed Materials; (b) deliverables and work product associated with the Licensed Materials; and (c) all copies and derivative works thereof; and (iii) the Licensed Materials, including the source and object codes, logic and structure, constitute valuable trade secrets of ours and Xledger’s Licensors. You agree to secure and protect the Licensed Materials consistent with the maintenance of our and Xledger’s Licensors’ rights therein, as set forth in these General Terms. You agree to execute such further instruments, and take such further actions, as we may reasonably request, at our expense, to apply for, register, perfect, confirm, and protect our rights.
6.2. As an express condition of your configuration of the Licensed Materials and the services of Xledger’s Licensors, you agree that you shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, provide on a service bureau basis or otherwise commercially exploit or make available to any third party the Licensed Materials (or Xledger’s Licensors) or the content in any way; (ii) modify or make derivative works based upon the Licensed Materials or the Content; (iii) create Internet “links” to the Licensed Materials or “frame” or “mirror” any content other than on your own intranets or otherwise for your own internal business purposes; or (iv) reverse engineer or access the Licensed Materials in order to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics of the Licensed Materials; or (c) copy any ideas, features, functions or graphics of the Licensed Materials. You also shall not: (i) modify, copy or create derivative works based on the services of Xledger’s Licensors; (ii) frame or mirror any content forming part of the services of Xledger’s Licensors, other than on your own intranets or otherwise for your own internal business purposes; (iii) reverse engineer the services of Xledger’s Licensors; or (iv) access the services of Xledger’s Licensors in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the services of Xledger’s Licensors.
6.3. Provided that: (i) you promptly give us written notice of any claim; (ii) provide us, at our expense, with all available information and assistance relating to the claim and cooperate with us and our counsel; (iii) do not compromise or settle such claim; and (iv) are not in material breach of the Agreement, we shall, on demand, indemnify, keep indemnified and hold you harmless, from and against any claims which arise directly or indirectly out of or relate to any dispute or claims or proceedings brought against you by a third party in any way connected with our ownership, use or operation of Intellectual Property Rights supplied by us to you under the Agreement. In no event shall Xledger, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is as a result of the Customer’s breach of the Agreement or based on the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Xledger or the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Xledger or any appropriate authority.
6.4. We shall, on your request, provide all assistance as is reasonably necessary to assist you in your defence of any dispute or claims or proceedings as described in clause 6.3 above.
7. Insurance and Claims
7.1. We will have in place and maintain in force for the duration of the Agreement, at our own cost, such insurance as is appropriate and adequate having regard to our obligations, and the liabilities that may arise, under or in connection with the Agreement and as required by law. We will supply, so far as is reasonable, evidence of the maintenance of our insurance and the applicable terms from time to time, on request.
7.2. If you become aware of any matter which you know is likely to give rise to a claim against us, by either you or any third party, you will as soon as reasonably practicable give us notice of that matter (specifying to the extent reasonably known to you at the relevant time, the nature of the likely claim).
8. Limits of Liability
8.1. Except as expressly and specifically provided in the Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Xledger shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to Xledger by the Customer in connection with the Services, or any actions taken by Xledger at the Customer’s direction;
(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 Agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
8.2 . Nothing in the Agreement excludes the liability of Xledger for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other losses which cannot be excluded or limited by applicable law.
8.3 Subject to clause 8.1 and clause 8.2:
(a) Xledger shall not be liable for any of the following losses (whether direct or indirect): loss of profit; loss of business, wasted expenditure; loss or corruption of data or information (other than as set out in clause 2.5); loss of use; loss of contract; loss of opportunity; loss of savings; or harm to reputation or loss or depletion of goodwill and/or similar losses or any special, indirect or consequential loss, costs, damages, charges or expenses; and
(b) Xledger’s total liability in each Contract Year under clause 6.3; for a breach of its obligations under clause 11 and a breach of its obligations under the Data Processing Addendum shall not exceed in the aggregate an amount equal to two hundred per cent (200%) of the total Fees paid in that Contract Year; and
(c) Xledger’s total aggregate liability under the Agreement for all other losses (those not falling under paragraphs (a) and (b) above) in each Contract Year shall not exceed an amount equal to one hundred per cent. (100%) of the total Fees paid in that Contract Year.
8.4 References to liability in this clause 8 include every kind of liability arising under or in connection with the Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9. Third Parties
9.1. Xledger may use Third Party providers to provide elements of the Services. Where we use Third Party providers we shall ensure that each such party are subject to terms no less onerous than the terms set out in the Agreement. Xledger remains responsible for any act or omission of the Third Parties.
9.2. We may at any time and in our sole discretion, change any Third Party providers on notice to you, provided that there is no material adverse effect on the Services. Where we change a Third Party provider of any element of the Service that is of a “stand-alone” nature and not integral to the other elements of the Services, you will be entitled to terminate the relevant Service elements in accordance with the relevant service terms provided that you have reasonable grounds for objecting to the change in Third Party provider.
9.3. Where a Customer engages a third party not approved by Xledger to implement or provide services in connection with the Services, Xledger may reasonably increase the charges payable by the Customer to compensate for any additional effort required by Xledger.
10. Warranties & Disclaimers
10.1. We undertake that the Hosting Environment, Services, Access Licence, Applications, bug fixes, Upgrades, and Licensed Materials and any components or combinations thereof (and the exercise of the rights granted herein with respect thereto):
(a) do not and shall not infringe, dilute, misappropriate, or violate any Intellectual Property Right, publicity right, privacy right, or other proprietary or other rights of any third party, and are not and shall not be defamatory or obscene;
(b) correspond with our Documentation;
(c) in respect of the Subscription Services only will meet the SLAs;
(d) provide adequate Security Measures;
(e) comply with all Applicable Laws; and
(f) contain or use accepted measures, software and other processes to detect, restrain and avoid and mitigate the potential impact of any disabling programs or devices and/or Viruses that may damage or detrimentally interfere with the Hosting Environment, any other software, any computer hardware or any telecommunications network.
10.2. Except as expressly stated in these General Terms, and subject to the Data Processing Addendum, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
11 Data Protection
11.1. Both parties will comply with all applicable requirements of applicable Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under applicable Data Protection Legislation.
11.2. The parties have determined that, for the purposes of applicable Data Protection Legislation:
(a) Xledger and the Customer shall act as independent Controllers in respect of the Supplier Personal Data and processing activities described in Schedule 1 to these General Terms. This clause 11 will apply to such Supplier Personal Data; and
(b) Xledger shall act as a Processor on behalf of the Customer as Controller in respect of the Customer Personal Data and processing activities set out in ANNEX 1 to the Data Processing Addendum. The provisions of the Data Processing Addendum will apply to such Customer Personal Data. Each Party shall comply with their obligations as set out in the Data Processing Addendum.
11.3. Should the determination in clause 11.2 change, then each party shall work together in good faith to make any changes which are necessary to this clause or the related Annexes.
11.4. By entering into the Agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Xledger in connection with the processing of Supplier Personal Data, provided these are in compliance with the then-current version of the Xledger privacy policy available at Equip.Xledger.co.uk (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and the Agreement, the Privacy Policy will take precedence.
11.5. The Customer will ensure that the Supplier Personal Data does not contain any special categories of Personal Data (as defined by Article 9 of the UK GDPR) or Personal Data relating to criminal convictions and offences.
11.6. Without prejudice to the generality of Clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Supplier Personal Data to Xledger and lawful collection of the same by Xledger for the duration and purposes of the Agreement.
11.7. Xledger will be entitled to use data processed by the Services to product Analytics. No Personal Data is used for the purposes of Analytics nor will the Analytics identify the Customer.
12. Confidentiality
12.1. Subject to clause 12.3, 12.4 and 12.5, neither Party shall disclose to any third party any Confidential Information.
12.2. Subject to clause 12.3 and 12.4, we shall only use the Confidential Information disclosed to us by you for the purposes of the Agreement.
12.3. Clause 12.1 and 12.2 shall not apply to any information which:
(a) the other Party consents in writing to the use or disclosure of;
(b) at the date of disclosure is in the public domain or which subsequently enters the public domain other than by breach of clause 12.1 and/or clause 12.2;
(c) is already known to the Parties prior to its disclosure pursuant to these General Terms, free of any obligation of confidentiality;
(d) is obtained from a third party following entry into the Agreement, free from any obligation of confidentiality; or
(e) is required to be disclosed to professional advisers for the purpose of obtaining professional advice.
12.4. A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by applicable laws or regulations, by any governmental or other regulatory authority, by any Supervisory Authority or by a court or other authority of competent jurisdiction. If a Party receives a request from a regulatory body requesting the disclosure of Confidential Information, such Party shall (unless prohibited by law from doing so) promptly notify the other Party to allow a reasonable opportunity to resist such disclosure and/or seek a protective order before the required time for disclosure. Such Party shall also, if requested, provide reasonable assistance, at the non-disclosing Party’s expense, in resisting the disclosure and/or seeking a protective or confidentiality order to govern the disclosure. A Party shall be entitled to comply with any such request to the extent required by law, but shall in doing so make reasonable efforts to secure confidential treatment of any Confidential Information it is compelled to disclose and shall not disclose any more Confidential Information than is necessary to comply with its requirements.
12.5. We shall have the right to disclose Confidential Information to our Personnel who “need to know” such Confidential Information in order to perform their obligations pursuant to the Agreement. We shall use all reasonable efforts in identifying and preventing any unauthorised use or disclosure of any Confidential Information. If we become aware or have reason to believe of a breach or intended breach of this clause 12 we shall immediately advise you and you and we shall cooperate in seeking any appropriate remedy against any such action. We shall ensure that any of our employees, officers, agents or subcontractors performing the Services are subject to appropriate confidentiality obligations. In particular, we shall ensure that all Personnel that we authorise to process Customer Personal Data are subject to appropriate confidentiality obligations in relation to that Customer Personal Data.
13. General
13.1. Assignment: Unless expressly state otherwise in the Agreement, no right or obligation arising under them may be assigned or otherwise disposed of, in whole or in part, by any Party without the prior written agreement of the other Party provided that: (a) you shall be entitled to assign any of your rights or obligations under the Agreement to any of your Affiliates; and (b) subject to clause 9.1 we shall be entitled to subcontract or delegate any or all of our obligations under the Agreement to any third party.
13.2. Variation and Change Control: Xledger may update these General terms, any relevant Specific Terms , Product Specifications and Policies from time to time on giving the Customer at least 30 days’ notice in writing providing that any such update does not have a material adverse effect on the customer or substantially change the nature and intent of the Agreement. In all other cases, no variation of any provision of the Agreement is effective unless in writing and signed by the authorised representatives of each Party.
13.3. Waiver: No delay or non-exercise of either Party in exercising any right or power it has under the Agreement shall affect such right or power or be interpreted as a waiver of it. No single or partial exercise or non-exercise of any right or power shall in any circumstances affect any other or further exercise of the same right or power or the exercise of any other right or power.
13.4. Severability: If any provision of the Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable in whole or in part, that provision shall, to the extent required, be deemed not to form part of the Agreement and the validity and enforceability of the other provisions of the Agreement shall not be affected.
13.5. Audits: During the Term and for a period of one year following its termination, you shall maintain and make available to us records sufficient to permit us or an independent auditor retained by us to verify, upon ten (10) days’ written notice, your full compliance with the terms and requirements of the Agreement. You shall, in an expeditious manner to facilitate the timely completion of such compliance verification: (i) provide any assistance reasonably requested by us or our designated auditor in conducting any such audit, including installing and operating audit software; (ii) make requested personnel, records, and information available to us or our designated auditor. Audits shall be performed during regular business hours. If the audit reveals any non-compliance, you shall reimburse us for the reasonable costs and expenses of the verification process (including, but not limited to the fees of an independent auditor) incurred by us, and you shall promptly remedy any such non-compliance, including without limitation through the payment of any and all Fees owed to us during the period of non-compliance at our then standard rates; provided, however, that the obligations under this clause 13.5 do not constitute a waiver of our termination rights.
13.6. Third Parties: Save in relation to your Affiliates, a person who is not a Party to the Agreement shall not have any rights under or in connection with it by virtue of the UK Contract (Rights of Third Parties) Act 1999 or any similar legislation in any other jurisdiction. Notwithstanding the above, the Parties expressly agree that the Agreement can be varied or rescinded by the Parties, notwithstanding that varying or rescinding the Agreement may extinguish or alter such third party benefit or right.
13.7. Entire Agreement:
Each Party acknowledges that:
(a) the Agreement (as defined in clause 1.2) together with all other documents to be entered into pursuant to it, set out the entire agreement and understanding between the Parties, and supersedes all proposals and prior agreements, arrangements and understandings between the Parties, relating to the subject matter of these General Terms; and
(b) in entering into the Agreement (and any other document to be entered into pursuant to it) it does not rely on any representation, warranty, or other assurance of any person (whether Party to the Agreement or not) that is not set out in the Agreement or the documents referred to in them. Each Party waives all rights and remedies which, but for this clause, might otherwise be available to it in respect of any such representation, warranty or other assurance. The only remedy available to any Party in respect of any representation, warranty or other assurance that is set out in the Agreement (or any document referred to in it) is for breach of contract under the terms of the Agreement (or the relevant document). Nothing in the Agreement shall, however, limit or exclude any liability for fraud.
(c) The Customer acknowledges that any purchases of the Services under the Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Xledger regarding future functionality or features.
13.8. No Partnership or Agency: Nothing in the Agreement shall be deemed to constitute or imply any partnership between the Parties or constitute either of the Parties as agent of the other.
13.9. Publicity: Xledger may use the Customer’s name and logo to represent the Customer as a customer of Xledger. The Customer hereby grants Xledger a non-exclusive licence to use the Customer’s and its Affiliates’ name, logos, marks or symbols in such promotional materials. The customer can reasonably withdraw the right for future use of their logo by providing 10 days written notice.
13.10. Counterparts: The Agreement may be executed in any number of counterparts, all of which taken together constitute one and the same document, and any Party may execute the Agreement by signing any one or more of such counterparts.
13.11. Costs: Except as provided in these General Terms, each of the Parties to the Agreement shall pay its own respective legal and other costs and expenses in connection with the negotiation, preparation, execution and performance by it of the Agreement.
13.12. Conflicts of Interest: We will take all efforts to confirm that none of our employees, agents or subcontractors has either directly or indirectly any material financial interest or business connection with either: (i) you; (ii) your Affiliates; or (iii) any employee of yours or your Affiliates, except as disclosed to you. If any conflicts arise during the Term, we shall promptly notify you so that appropriate action can be taken. This requirement is not intended to require disclosure related to the ownership of shares through a mutual fund, retirement plan or any similar investment vehicle.
13.13. Export: Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Licensed Materials. You agree that such export laws govern your use of the Licensed Materials (including technical data), and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, program, and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical or biological weapons proliferation, or development of missile technology.
13.14. Notices: Any notice required to be given pursuant to the Agreement shall unless otherwise stated in it, be in writing, sent to the other party marked for the attention of the person at the address specified in the Order (or to such other address as either party may from time to time notify to the other in writing in accordance with this clause). For the purpose of notices to be given by us in writing, the expression “writing” or “written” shall be deemed to include email communications. A correctly addressed notice sent by first-class post shall be deemed to have been delivered seventy-two (72) hours after posting, and correctly addressed emails shall be deemed to have been delivered twenty-four (24) hours after sending.
13.15. Force Majeure: We shall have no liability to you under the Agreement if we are prevented from or delayed in performing our obligations under the Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, an Event of Force Majeure, provided that you are notified of such an event and the expected duration of the event. This term applies to Xledger’s licensors and it’s suppliers, If the situation of Force Majeure lasts longer than 90 calendar days, either Party will have the right to terminate an Order in accordance with clause 5. Any Services delivered before the Force Majeure event may be invoiced and payable by the Customer.
13.16. Non-Solicitation: Neither Party shall (except with the prior written consent of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other Party any person employed or engaged by such other Party in the provision of the Services or (in the case of the Customer) in the receipt of the Services at any time during the Term or for a further period of twelve (12) months after the termination of the Agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at any of the staff of the other Party. If either Xledger or the Customer commits any breach of this clause 13.16, the breaching Party shall, on demand, pay to the claiming Party a sum equal to one year’s basic salary that was payable by the claiming Party to that employee plus the recruitment costs incurred by the claiming Party in replacing such person.
13.17. Governing Law and Jurisdiction: The Agreement shall be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
14. Definitions and Interpretation
14.1. The following definitions apply in these General Terms and in the Agreement:
Access Licence: a non-exclusive, royalty-free, fully paid up, revocable right and licence to: (a) access, use, and interact with the Hosting Environment and all Applications hosted therein; and (b) use any of our Intellectual Property Rights included or embodied therein as further described in an Order;
Affiliate: in relation to any company, any “subsidiary” or “holding company” (as such terms are defined in the Companies Act 2006) of that company or any subsidiary of that holding company;
Agreement has the meaning given in clause 1.2 of these General Terms;
Analytics: statistical analyses, insights, market data and predictive models to assist development of Xledger services and products and associated services designed for use with such services and products.
Applicable Laws: all applicable laws and regulations, rules, instruments and provisions in force including the rules, codes of conduct, codes of practice, practice requirements and accreditation terms stipulated by any Regulator, and/or any permits and licences necessary for the performance of a Party’s obligations, to which each Party is subject;
Application: the, databases, websites, programs, and/or any other applications incorporating our Software (including all Upgrades) and provided by you to your Authorised Users, as defined in the SaaS Specific Terms;
Authorised Users an individual authorised by you to use your configuration of the Application and any other Licensed Materials agreed in an Order;
Confidential Information: confidential and proprietary information (whether in written, oral or electronic form) that: (a) is by its nature confidential; and/or (b) is designated by a Party as confidential; or (c) the other Party knows or ought to know is confidential; and includes, but is not limited to trade secrets, know-how, inventions, techniques, processes, software programs and other IT related information, documentation, schematics, procedures, contracts, customer databases, customer information, Customer Data, Customer Personal Data, financial information, budgets, sales, marketing, insurance secrets, anti-money laundering and compliance data, ideas, strategies, designs, projections, business plans, strategic expansion plans, products and product designs, sourcing information, potential product labelling and marking ideas, unpublished information relating to the intellectual property rights of either Party, and all communications between the Parties and other non-public information relating to either Party’s business;
Contract Year shall mean any period of twelve (12) months (or shorter period in the period immediately prior to termination of the Agreement) commencing on the Effective Date or any anniversary of such Effective Date during the Term.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach and Processing: have the meanings given to them in the Data Protection Legislation.
Customer Data: (a) all information, data, materials, and content of any kind, whether or not Confidential Information, furnished or made available directly or indirectly to us by or on behalf of you, and/or processed via the Subscription Services, including information stored or entered into the Applications by Authorised Users or on behalf of you or any of your Permitted Entities and (b) all information, data, materials, and content derived from the foregoing including the output from such information and content;
Customer Personal Data: Personal Data other than Supplier Personal Data supplied by or on behalf of the Customer and processed by us on your behalf in connection with our performance of our obligations relating to or arising from the Agreement;
Data Protection Legislation: To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Provider is subject, which relates to the protection of Personal Data.
Documentation: the documents made available to you by us (whether in electronic or hard copy), regarding your use of the applicable Software or Services, as updated by us from time to time, including (without limitation) online design documents, project plans, user instructions, release notes and training manuals;
Effective Date: has the meaning given in clause 5.1;
EU GDPR: the General Data Protection Regulation ((EU) 2016/679);
Event of Force Majeure: an event outside the reasonable control of either Party (without that Party’s fault or negligence) including an act of God, war, 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 (excluding strikes or industrial action of the Party’s own employees, agents or subcontractors) which directly causes either Party to be unable to comply with all or a material part of its obligations under the Agreement;
Expenses: the expenses relating to a particular Service described in the relevant Order for such Service and paid in accordance with clause 4;
Fees: the fee for a particular Service set out in the relevant Order for such Service and paid in accordance with clause 4;
Hosting Environment: the facilities and environment managed and/or utilised by or for us to provide the Services to you, including all software, servers, hardware, networks, equipment, tools, and telecommunications facilities and technology installed and/or used within such environment, as further described in the Order;
Implementation Services: the services in respect of the implementation of an Application, to be provided by us to you as described in an Order;
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Licensed Materials: Software, Documentation, Upgrades, training materials, and/or any deliverables in connection with the Services;
Permitted Entity: your Affiliate permitted to use the Licensed Materials as agreed in an Order or otherwise in writing with an authorised Xledger contact;
Personnel: in relation to a Party, employees, officers, agents, subcontractors or third-party processors of that party or of that party’s third-party processors;
Privacy Policy: has the meaning given in clause 11.4;
Professional Services: the professional services, other than the Implementation Services and Support Services, to be provided by us to you as described in an Order and as more particularly described in the Professional Services Specific Terms;
Professional Services Specific Terms: the Xledger terms and conditions for the provision of the Professional Services;
Regulator: any body or organisation which regulates all or any part of the business of either Party;
Security Measures: the technical and organisational measures provided by us in connection with the Services);
Services: any service provided by us to you, as described in more detail in an Order which may include, without limitation, the Subscription Services and/or the Support Services and/or the Professional Services and/or the Implementation Services;
Services Start Date: the start date of the relevant Services as described in an Order;
Software: the proprietary computer software programs of Xledger and Xledger’s Licensors and all related materials, improvements, updates, licensed internal code, embedded Third Party Products, new releases, fixes, enhancements, derivative products and information utilised by Xledger in providing you the Application;
Subscription Services: any and all hosting and support Services to be provided to you by us including the provision, management, and support of and the access to the Hosting Environment and hosted Applications, the Access Licence, the storing of Customer Data and/or any processing, compiling utilising any of the Applications or Hosting Environment as more particularly described in an Order;
Supplier Personal Data: Personal Data supplied by or on behalf of the Customer and processed by Xledger in the capacity of a Controller;
Support Services: the maintenance and support services in respect of the Subscription Services to be provided by us to you as set out in an Order and as more particularly described in the Support Services Specific Terms.
Support Services Specific Terms: the Xledger terms and conditions for the provision of the Support Services;
Third Party Product: software in object code form, database, service or content, including Documentation, updates and enhancements thereto if any, owned by an entity other than Xledger;
UK GDPR: the General Data Protection Regulation ((EU) 2016/679), as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018) (as supplemented by section 205(4) of the Data Protection Act 2018);
Upgrades: collectively, any update, customisation, enhancement, release, replacement or successor product, improvement, new version or other modification to the Software as may be required to enable the Applications to operate in conjunction with any new generally available releases and versions of the operating system, database and other computer programs with which they are designed to operate or which adds substantial new functionality thereto;
Virus: any thing or device (including 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 (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Xledger’s Licensors: third party platform and utility providers of Xledger necessary for Xledger to provide the Licensed Materials or Services.
14.2. The following rules of interpretation apply in the Agreement:
(a) Clause, annex and paragraph headings shall not affect the interpretation of the Agreement.
(b) A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
(c) A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(d) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
(e) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
(f) A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.
(g) A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
(h) A reference to these General Terms or to any other relevant specific terms is a reference to these General Terms or such other specific terms, in each case as updated from time to time
(i) A reference to writing or written includes email.
(j) References to clauses and annexes are to the clauses and annexes of the Agreement; references to paragraphs are to paragraphs of the relevant annexes to the Agreement.
SCHEDULE 1: Personal Data processing purposes and details
Independent Controllers – the Supplier and Customer act as Independent Controllers in relation to Supplier Personal Data processed in the provision of training services through Xledger’s training platform. The subject matter, type of Personal Data and categories of data subject are set out in the following table:
Subject matter of processing | The performance of the training services by Xledger, including provision of access to Xledger’s training platform. |
Type of Personal Data | First and last name, address, email address, and telephone number.
No special categories of personal data (as defined by Article 9 of the GDPR) or personal data relating to criminal convictions and offences or shall be processed under the Agreement. |
Categories of data subjects | Employees, officers, members, contractors, customers, suppliers, donors, company contacts, next of kin, prospects, leads of the Customer and its Affiliates |