These SaaS Specific Terms including its Annexes (“SaaS Specific Terms”) contain the terms and conditions that govern your access to and use of the Xledger Software As a Service (“SaaS”) (as defined below) and form 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”).
1. Agreement and Interpretation
1.1 The definitions and rules of interpretation set out in clause 11 and in the General Terms apply in these SaaS Specific Terms
1.2 Our agreement is made up of the following (in order of precedence):
(a) the order form for SaaS (as more particularly described in clause 1.3), executed by the Parties (“Order“);
(b) these SaaS Specific Terms;
(c) any other relevant Specific Terms as referred to in clause 2.3 including the Professional Services Specific Terms and/or the Support Service Specific Terms;’
(d) the Xledger General Terms of Business as updated from time to time (“General Terms“); and
(e) the Data Processing Agreement executed by the Parties (“DPA”),
(together the “Agreement“).
1.3 Each SaaS Order shall contain:
(i) details of the Licensed Materials and/or Services to be provided (as applicable);
(ii) any additional terms that will apply;
(iii) the Fees and (if stated) any Expenses payable by you to us in respect of each Service; the date from which the Licensed Materials and/or the Service be provided;
(iv) each Permitted Entity entitled to receive the Licensed Materials and/or Services;
(v) the User Subscriptions to be granted; and
(vi) any Assumptions.
2. Provision of the 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 shall shall use commercially reasonable endeavours to make the Services available in accordance with the SLA (set out at Annex 2):
2.3 Where indicated in an Order we will, as part of the Services and at the additional Fee set out in the relevant Order, provide the Customer with the Professional Services and /or the Support Services subject to the Professional Services Specific Terms and/or the Support Services Specific Terms (as applicable). The Customer may purchase enhanced support services separately at our then current rates.
2.4 The Customer acknowledges and agrees that in addition to the provisions of clause 8.1 of the General terms:
(a) Xledger will not be responsible for delays, delivery failures or other losses resulting from the transfer of Customer Data over communications networks or facilities, including the internet.
(b) Xledger is unable to exercise control over the content of any information passing through the Application. We exclude all liability in respect of transmission or reception of information by the Customer or/and Authorised User, of whatever kind, or the accuracy of the contents of such information.
(c) We develop and manage a suite of application programming interfaces (APIs) designed for integration with the Software. If you engaged any third parties to integrate their systems, applications or services with the Software, you are solely responsible for deploying, customising and maintaining such integration against our APIs. We reserve the right to modify or update our APIs at any time and it is your responsibility to monitor such changes and make necessary adjustments to any such third party integrations to ensure compatibility with and functionality of the Software.
3. User Subscriptions
3.1 Subject to the Customer purchasing the User Subscriptions in the Order, the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Xledger grants to the Customer the Access Licence to permit the Authorised Users to use the Services and the Documentation during the Term solely for the Customer’s internal business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that
(a) the maximum number of Authorised Users that you authorise to access and use the Services and the Licensed Materials shall not exceed the number of User Subscriptions you have purchased from time to time;
(b) you will not allow or suffer any User Subscription to be used by more than one individual Authorised User;
(c) each Authorised User shall keep a secure password for their use of the Software and/or Licensed Materials;
(d) each Authorised User shall keep their password confidential and shall not share such password with any other of your employees, contractors and agents;
(e) no access controls or other security measures for the Software shall be deactivated, bypassed or otherwise circumvented by the Customer, unless where approved in writing by Xledger;
(f) the Customer shall not attempt to gain unauthorised access to or otherwise interfere with or disrupt Xledger’s systems, data or operations nor shall the Customer engage with any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functioning of the Service, deliberate or otherwise; and
(g) each Authorised User shall use the Software and/or Licensed Materials in accordance with the terms of the Agreement and you shall be responsible for any such user’s breach of the Agreement.
4. Additional User Subscriptions
4.1 Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during the Term, purchase additional User Subscriptions in excess of the number set out in the Order and we shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Agreement.
4.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall be responsible for activating the additional User Subscriptions within the system.
4.3 If the Customer chooses to activate additional User Subscriptions in accordance with clause 4.2, Xledger shall be entitled to invoice the Customer for the additional User Subscriptions at its then current prices from the end of the month in which those additional User Subscriptions were activated. For the first month, a full monthly charge will apply for each additional User Subscription regardless of the date in that month on which such User Subscription was activated by the Customer.
5. Customer Obligations
5.1 In addition to its obligations under the General Terms, the Customer shall be responsible for:
(a) ensuring that its network and systems comply with the relevant specifications required to access the Services and Licensed Materials;
(b) to the extent permitted by law and except as otherwise expressly provided in the Agreement, procuring, maintaining and securing its network connections and telecommunications links from its systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to its network connections or telecommunications links or caused by the internet;
(c) the functional operation and administration of the Software and/or Licensed Materials to the extent that the Software allows; and
(d) the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Service, that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethically offensive; facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based race, gender, colour, religious belief, sexual orientation, disability or is otherwise illegal or causes damage or injury to any person or property. We reserve the right, without liability or prejudice to our other rights to disable access to any material that breaches the provisions of this clause.
6. Fair Usage
6.1 The Customer acknowledges and agrees that Xledger will allocate an amount of system resources as is appropriate for a service the size and nature of that provided to the Customer. If the Customer’s use of the Service places excessive demands on system resources compared to those typically experienced by Xledger for similar customers, Xledger may take any of the following actions at its sole discretion:
(a) disapply the SLAs in Annex 3;
(b) suspend the Service; and/or
(c) apply any reasonable additional charges in relation to the provision of excess capacity.
7. Definitions:
the following definitions apply in these SaaS Specific Terms in addition to those set out in the General Terms:
Business Day: a day (other than a Saturday, Sunday or public holiday) where banks in London are open for business;
Implementation Services: the services in respect of the implementation of an Application, to be provided by us to you as described in an Order;
SLAs: has the meaning given in Annex 2 to these SaaS Specific Terms;
Service Credits: the amounts specified in Annex 1 to these SaaS Specific Terms as being creditable or payable for failure to meet the Availability Commitment (as that term is defined in the Annex);
User Subscriptions: the user subscriptions purchased by you pursuant to an Order which entitles the number of Authorised Users specified in an Order to access and use the levels of Services and/or the Licensed Materials also set out in that Order;
ANNEX 1
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) forms part of the Terms and sets forth certain supplemental terms and conditions applicable to the availability of the Subscription Services. Unless otherwise defined herein, any capitalised terms defined in the Terms and used herein will have the same meaning specified in the Terms.
Covered Services
Unless otherwise specified in the applicable Order, this SLA applies to Customer’s paid subscriptions to Subscription Services pursuant to a SaaS Order (“Covered Services”).
The SLA applies to the availability for the production environment (www.xledger.net) of the Services and the consequences of any breach in the availability (“Availability of Covered Services”).
Xledger shall use commercially reasonable efforts to ensure that the Covered Services will be available to the Customer on a twenty-four hour, seven days a week (24×7) basis, for an average uptime of 99.5% in any given calendar quarter, subject to the exclusions set forth herein (the “Availability Commitment”).
Calculation of Uptime
Xledger use the following formula as a basis for service availability calculation.
Service Credits
Following a service disruption event, if the actual availability for Covered Services falls below the Availability Commitment, Customer shall be entitled to a credit (“Service Credit”) equal to a percentage of the paid subscription fees attributable to the calendar quarter, according to the following schedule and subject to the conditions set forth herein:
Availability | Service Credit |
99% – 99.49% | 10% of quarterly subscription fees |
95% – 98.99% | 15% of quarterly subscription fees |
Less than 95% | 20% of quarterly subscription fees |
To be eligible for a Service Credit, Customer is required to notify Xledger within three (3) Business Days following the occurrence of each applicable service disruption, by submitting a request to the applicable Customer Success Team. Any Service Credits will be applied by Xledger against future payments due for the applicable Covered Services or, at Xledger’s election (or if Xledger is unable to apply a Service Credit against future payments), a refund.
Allowable Maintenance and other Exclusions
Xledger may provide maintenance on its Hosting Environment from time to time. Xledger reserves ten (10) hours per calendar month for scheduled maintenance purposes and eight (8) hours per calendar month for updates.
Scheduled maintenance and updates will only be performed between the hours of 22:00 and 07:00 on Business Days or 20:00 and 07:00 on weekends and holidays, in each case based on the applicable deployment location time.
Under certain conditions, Xledger may need to perform urgent or emergency preventative maintenance, such as installing security patches. In such cases, Xledger may not be able to provide advance notice. Service disruptions due to scheduled or emergency maintenance and updates are referred to herein as “Allowable Maintenance”.
The Availability Commitment will not apply, and Customer shall not be entitled to any Service Credits or other remedies hereunder, with respect to service disruptions attributable to Allowable Maintenance, Events of Force Majeure or any actions or inactions on the Customer’s part (unless undertaken at Xledger’s express direction).
Exclusive Remedies
Customer’s rights and remedies specified in this Annex 1 set forth Customer’s sole and exclusive remedies, and Xledger’s sole and exclusive obligations, arising from or related to any failure to meet the Availability Commitment.