>Any contract between Xanda Limited (“Xanda”) and a person, firm or company who purchases goods from or engages the services of Xanda (“Client”), for the sale and purchase of any goods or for the supply of any services agreed in the contract to be supplied to the Client by Xanda (“Services”) (“Contract”) shall be in accordance with these terms and conditions and with the additional terms set out in the Specification Document produced by Xanda, to the exclusion of all other terms and conditions and the Client is deemed to have accepted these Terms and Conditions and the terms of the Specification Document upon signing the Specification Document.
Any variation to these terms and conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a director of Xanda. These terms and conditions apply to the exclusion of all other terms or conditions which the Client may purport to apply. These terms and conditions supersede any and all previous agreements made between the parties and shall remain in place for all future dealings until superseded or variations are made and agreed in writing by the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Xanda which is not set out in the Specification Document. Nothing in this condition shall exclude or limit Xanda’s liability for fraudulent misrepresentation.
- Bug: Any fault, error or malfunction in software which materially affects the operation of that software or associated website.
- Cancellation Fees: The sums payable by the Client in the event that it decides not proceed with the Project set out in the Specification;
- Client Testing: The process of testing conducted by the client in advance of launch to identify bugs and any Project inadequacies.
- Development: The design, write, and build of the Project by the means and programming language that Xanda deems appropriate including the use of third party and open source solutions.
- Fees: such charges and fees payable by the Client to Xanda as set out in the Specification
- Hosting Services: The services provided by Xanda or Xanda’s nominee required for data to be stored, transferred and/or made available over the Internet.
- Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- Maintenance Services: The services for the maintenance of the Project or provision of any and all continuous services as detailed in the specification.
- Malware: An unauthorised computer program of any kind which is designed to cause or which is likely to cause damage to the Project or any data or functions of the specification.
- Materials: Any materials incorporated where appropriate for the Project including without limitation those listed in the Specification. Including, but not limited to, domains, data, code, images, videos, texts, sounds, logos, translations, and any other digital or real world material.
- Parties: Xanda and the Client together.
- Project: The project for which Xanda Services are engaged by the Client in accordance with the Specification.
- Renewable Service: Any product or service provided by or through Xanda that requires renewal after a specified term.
- Services: the services to be provided by Xanda under this agreement as set out in the Specification together with any other services which Xanda provides or agrees to provide to the Client.
- Specification: The Specification Document, being the Contract made between Xanda and the Client and setting out the specification of Services to be provided by Xanda.
- Third party service: Any software, product or service required for the Project not developed exclusively by Xanda.
In consideration of the payment by the Client to Xanda of the Fees Xanda agrees to provide the Services in accordance with and subject to these terms and conditions and in accordance with the remittance advice and additional provisions set out in the Specification. Time for payment shall be of the essence of this agreement.
- All Intellectual Property Rights of whatever nature or material devised by Xanda will vest in and belong to Xanda free of any interest of the Client or any third parties. The Client will do such acts as Xanda may reasonably require in order to effectively vest such rights in Xanda or to evidence the same.
- Xanda will grant to the Client a non-exclusive right and licence to use the intellectual property developed as a result of this agreement for the duration of the license period detailed in the specification. Where no license period is specified, no license is granted.
- The Client hereby grants to Xanda a nonexclusive royalty free licence to use the Materials for the purposes of this Agreement.
- The Client hereby warrants that it has or has obtained all necessary rights, permissions and licences for the use of the Materials supplied to Xanda and that it is fully entitled to grant to Xanda the rights in the clause above.
- The Client undertakes to Xanda to indemnify and hold harmless Xanda in full and defend at its own expense Xanda against all costs and losses whatsoever and howsoever incurred by Xanda its servants or nominees arising out of any claim made against it or any of them in any jurisdiction in the world for infringement of any Intellectual Property Rights in the Materials or information or Materials supplied by any third party on websites or software developed for the Client by Xanda or in connection with any service provided by Xanda. It is the Client’s responsibility to moderate any third party submissions and to protect itself with the appropriate indemnity provisions in its own terms and conditions for its customers. Accordingly, all Xanda liability or responsibility for the content of such third party submissions, advertising, information or Materials on any website or software developed by Xanda and any infringement or damage it may cause is hereby disclaimed and excluded to the maximum extent permitted by law.
- The Client further warrants that all material that it supplies to Xanda is free of defamatory and other legally restricted material and it warrants that it shall fully indemnify and defend at its own expense Xanda against all costs and losses whatsoever incurred by Xanda its servants or nominees as a result of any claim made against it or any of them in any jurisdiction in the world as a direct or indirect result of the breach of this clause.
- Notwithstanding the provisions of these Intellectual Property clauses, Xanda shall be afforded full and reasonable credit on the website or software designed by Xanda as the Developer and designer. Xanda will implement this credit and any associated link and wording at its own discretion.
- Notwithstanding the provisions of these Intellectual Property clauses, Xanda shall be entitled to refer, in the course of promoting or demonstrating Xanda, to the Project and Xanda’s involvement in the design, Development and as the provider of the Project.
- Xanda has prepared the Specification in conjunction with the Client.
- All delivery times set out in the Specification are estimates and cannot be guaranteed.
- Delays arising as a result of waiting for client testing, feedback and any required content or materials will affect the delivery estimates.
- Xanda will work strictly to the Specification only and any functionality that is not in the Specification will not be developed even if the Client believes it is implied or obvious.
- Specification changes may incur additional fees and development time. Please see Specification Adjustment below.
- The Project will be initiated once:
(i) The Client has signed and returned to Xanda the Specification Document confirming acceptance of the terms and conditions, payment terms, director’s personal guarantee if required and the exact details of the planned development;
(ii) The Client has completed and supplied Xanda with the standing order if required; and
(iii) The Client has paid in cleared funds to Xanda the specified deposit.
The Client shall:
(i) co-operate with Xanda and act in good faith in respect to all matters relating to the Project;
(ii) provide, in a timely manner, such Materials and other information as Xanda may require, and ensure that it is accurate in all material respects;
(iii) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of Xanda’s equipment, the use of Materials and the use of the Client’s equipment in relation to Xanda’s equipment insofar as such licences, consents and legislation relate to the Client’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
- If Xanda’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Xanda shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
- The Client shall be liable to pay to Xanda, on demand, all reasonable costs, charges or losses sustained or incurred by Xanda (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, dishonesty, negligence, failure to perform or delay in the performance of any of its obligations under this agreement, subject to Xanda confirming such costs, charges and losses to the Client in writing.
- Xanda will provide the Services as detailed in the Specification.
- Designs will be presented to the Client for approval or amendment. Such approval is to be made within a reasonable time. Once the designs are approved by the Client, Xanda will progress the Project to the next phase.
- Design changes requested after design approval will be subject to additional development time and surcharges.
- Xanda reserves the right to proceed with the Project using the approved designs and to refuse further amendments from the Client after design approval.
- Development will commence once any required approvals are received.
- When ready Xanda will deliver a ‘preview link’ for the Client to complete Client Testing and provide any feedback.
- Feedback that requests alterations to be made to parts of the development that have already been changed as a result of earlier feedback will be subject to surcharges.
- Once all feedback has been addressed the client will provide written acceptance of the system.
- Upon acceptance Xanda will take the required time for internal testing before preparing the Project for launch.
- Subsequent to launch, Bugs will be resolved as part of the maintenance services if specified, alternatively Bug fixing may incur surcharges.
- The Client undertakes to test, accept and install where required any revisions or updates to any developed services.
- Xanda reserves the right to apply surcharges where services are required to address issues caused as a result of the Client’s failure to update to the latest revision or update within a reasonable amount of time.
- Any changes to the Specification will be documented and additional charges may be applied and will require written agreement.
- Subsequent specification changes will require new specification, agreement and may incur additional design and development time and costs.
- Subsequent specification changes may require changes to third party designs, services or features. The Client warrants that they will arrange and confirm any third party changes and will agree and settle any costs for such third party changes.
- Subsequent specification changes will not be initiated until the original specification charges have settled in full. Should spread payments have been agreed the Client will be required to pay the full outstanding balance before the new work can be initiated.
- Xanda may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
- In the event of an environment change or legislation that requires alteration to a delivered system or service it is the Client’s reasonability to instruct Xanda to implement the compliance requirements. Surcharges and extended delivery times may apply.
- Renewable services will be provided for the term as written in the specification and will be subject to renewal.
- Xanda will review the fees charged and specification for any renewable services at the expiration of each term.
- Xanda reserves the right to withdraw renewable services upon expiration.
- Hosting services are provided with limits to bandwidth and disk space as detailed within the specification. Xanda will charge £10 per GB used per month over either allowance. Xanda reserves the right to refuse bandwidth and disk space overages.
- Hosting terms commence on the date of delivery of the first Project preview regardless of the domain used unless otherwise defined in the specification. Xanda hosting services are fully managed. Unless otherwise defined in the specification, no direct access will be granted to the client.
- Xanda offers no hosting service up-time guarantee.
- The Maintenance Services shall not include providing a server or server connection.
Third Party Services
- Where required or requested the Project may involve integration with third party services.
- Xanda may refuse requests for integration with a third party service should the service not be compatible or appropriate for any other Xanda provided service.
- Xanda may withdraw integration with a third party service should an alteration result in the service becoming no longer appropriate or compatible.
- Xanda will assume a reasonable integration processes with the third party developer or vendor with sufficient technical support and instruction.
- In the event that a service provided by third party developer or vendor causes error, bugs, delays, security risks or system failures, Xanda will work on a best efforts engagement with the vendor to resolve the issues.
- Xanda reserve the right to withdraw our integration service should we deem the integration process to fail a reasonable standard.
- Should Xanda deem the integration process to not be of a reasonable standard, surcharges may apply for Xanda to correct the necessary bugs and processes to achieve a successful integration or to replace the vendor.
- Should a third party service be upgraded or altered in any way that will require additional time to reintegrate the service surcharges may apply.
- Xanda may withdraw their support and availability of service, and recommend upgrades, where support is withdrawn by vendors or developers for platforms used in the development or on-going delivery of the Project.
- The Client accepts and understands that search engine listings, services and results are entirely outside of the control of Xanda.
- Xanda cannot guarantee the results or performance of any third party service.
Bugs & Malware
- All software created by Xanda is checked for Malware using professional anti-malware programs, Xanda accepts no liability for any malware discovered.
- The Client acknowledges that software is rarely wholly free from bugs. Xanda will endeavour to test their developments to identify and resolve bugs but can give no warranty or representation that the Project will be wholly free from bugs.
- Xanda does not warrant or represent that the Project will work in any other hardware or software environment other than that as provided by or supplied to Xanda on the date of launch.
- Xanda does not warrant or represent that the Project will be compatible with any application, program or software not specifically identified in the specification.
- The Client warrants to undertake full Client Testing in advance of launch and provide Xanda with their feedback and details of any bugs identified.
- In advance of launch Xanda will resolve any bugs identified through internal Xanda or Client Testing. Xanda may require additional time to the estimated delivery projection specified to resolve any identified bugs.
- Subsequent to launch Xanda will resolve bugs identified as part of the maintenance services if specified. If a bug resolution service is not detailed within the maintenance services surcharges will apply.
- The Client warrants that they will employ anti-malware solutions for devices employed in the use of any services provided by Xanda.
- Xanda reserves the right to suspend or withdraw services in the event of a malware infection.
Support & Advice
- Xanda will provide the specified Support & Advice services only within Working Hours as detailed below or as per the extended hours if detailed in the specification.
- Xanda will provide technical support via email: [email protected] and telephone: +44 208 4444 757 only.
- Xanda will aim to commence dealing with issues within response time as specified. Actual response times may vary.
- Support required outside of working hours is classifiable as Emergency support and is chargeable at our emergency rates.
- Emergency support shall only be available where detailed in the Specification.
- The Client will provide a nominated staff contact for support queries. The Client agrees that all support queries will be raised with Xanda by the nominated staff contact.
- Xanda will provide support to the Client and the Client’s staff via the nominated staff contact.
- Xanda may provide support to any third party only where Xanda deem it necessary or appropriate. Support to third party members may incur surcharges payable by the Client.
- Where detailed in the Specification, Xanda will provide liaison between the Client and any Third Party system providers and vendors to assist in support matters.
- All work carried out by Xanda is provided to the Client on a strictly non-advice basis. Advice, if any, given by Xanda during communications with the Client is given in good faith and without liability. The Client must rely on his own investigations and research when committing to decisions.
Xanda operates between the Working Hours of 9:00am to 5:30pm UK time, Monday to Friday excluding public holidays and the Christmas Eve to New Year’s Eve period.
Hardware and Networking Services
- Xanda will provide remote support for the hardware, software and users detailed in the Specification only.
- The Client accepts that Xanda will install remote access software on each of the devices specified for support services for the duration of the period.
- The Client accepts that Xanda provides a fully managed network support service. Unless otherwise defined in the specification, no administrative access will be granted to the Client or any third party.
- Xanda will provide on-site support services where detailed in the Specification only.
- On-site support will only be given where Xanda deem it necessary and appropriate.
- When deployed, technicians will be sent to resolve issues on-site within a reasonable time period considering the details for the problem to allow for preparations, the acquisition of any replacement parts and travel.
- Xanda will diagnose hardware faults and deal with manufacturers where supported devices are under warranty. In other cases Xanda will provide quotations for any required repairs or replacements.
- Xanda will only support software detailed in the Specification that is actively maintained and supported by the software vendor and/or developer.
- Where detailed in the specification Xanda will manage the backup solution(s).
- Xanda does not guarantee the backup media, backup software or recovery ability but will work with the supported backup system to restore data when required as fully as possible.
- The Client understands that data recovery is not always possible.
- The Client is responsible for changing any backup media and will report any failures to Xanda.
- In the event of data loss, Xanda will attempt to recover to the most recently available healthy backup. Some data loss may occur between the date of failure and the date of the recovered backup.
Cancellation and Termination
- The Client shall pay to Xanda the Fees on receipt of a valid invoice in accordance with the payment terms set out therein or on the Specification.
- Without prejudice to any other right or remedy that it may have, if the Client fails to pay Xanda on the relevant due date, Xanda may charge interest on such sum from the due date for payment at the annual rate of 10% above the base lending rate from time to time of National Westminster Bank accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and Xanda may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Client shall pay the interest immediately on demand.
- If applicable an invoice for this interest will be raised at Xanda’s discretion at any time or times after the payment due date.
- All sums and the full Fees payable to Xanda under this agreement shall become due immediately on its termination, despite any other provision. This provision is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
- Xanda may, without prejudice to any other rights it may have, set off any liability of the Client to Xanda against any liability of Xanda to the Client.
- Xanda reserves the right to terminate this Agreement; (i) for any reason on giving 30 days’ notice to the Client; or (ii) with immediate effect if the Client has committed any serious or repeated breach or non-observance of its obligations, including but not limited to (a) failing to pay any amount due under this agreement on the due date for payment and remaining in default not less than 14 days after being notified in writing to make such payment; or (b) suspending or threatening to suspend payment of its debts or is unable to pay its debts as they fall due; or (c) failing to act in good faith towards Xanda, unreasonably withholding required Materials or information required by Xanda, or obstructing Xanda from carrying out its obligations hereunder.
- On termination of this agreement for any reason:
(i) the Client shall immediately pay to Xanda all of Xanda’s outstanding unpaid invoices and interest and, in respect of Fees due but for which no invoice has been submitted, Xanda may submit an invoice, which shall be payable immediately on receipt;
(ii) Xanda will only release the Materials upon receipt of the full outstanding Fees;
(iii) Xanda shall be entitled to immediately restrict or suspend without notice, the Client’s access to and use of the Services; and
(iv) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
Interruptions of service
- Where services are lost due to bugs or errors, Xanda undertakes to use reasonable endeavours to recover the services.
- Where detailed in the Specification, Xanda will take backups of important data. In the event of system failure Xanda will recover to the most recently available healthy backup. Some data loss may occur between the date of failure and the date of the recovered backup.
This clause sets out the entire financial liability of Xanda (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Client in respect of:
(i) any breach of this agreement;
(ii) any use made by the Client of the Services or any part of them; and
(iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
Nothing in this agreement limits or excludes the liability of Xanda for death or personal injury resulting from negligence; or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Xanda; or for any other liability which cannot be excluded or limited under applicable law.
Subject to the above:
(a) Xanda shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated earnings or savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any other loss or damage of any kind however arising, including special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) Xanda’s total 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 this agreement shall be limited to the price paid to and received by Xanda for the Services.
- Xanda will not and does not purport to provide any legal, taxation or accountancy advice under this Agreement or in relation to the Software and (except to the extent expressly provided otherwise) Xanda does not warrant or represent that the Software will not give rise to any civil or criminal legal liability on the part of the Client or any other person.
- Xanda can accept no liability for any losses or damages incurred of whatever nature as a direct or indirect cause of any bug.
- Without prejudice to other clauses in this agreement, the Client undertakes that it will obtain all necessary licenses and permissions required throughout the world for any and all activities that it conducts through the Internet.
The Client shall indemnify and hold Xanda harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, Xanda as a result of or in connection with any claim made against us as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of this agreement by the Client. The provisions of this indemnity shall survive termination of this agreement, however arising.
In entering this agreement with Xanda, the Client warrants that it has no existing or contemplated past or present claims against Xanda whatsoever in relation to the Services or any previous agreements for the supply of products and/or services and/or engagements with Xanda and shall not bring any claims in relation thereto.
- Xanda reserves the right to suspend any service or withdraw any of its codes in the event of failure to make a required payment on by an agreed due date. Spread payment plans are offered subject to prompt payment. Should an expected payment not be received by a due date, the spread payment option will be withdrawn and the full outstanding balance will become immediately due.
- Xanda will restore services in a reasonable time after full payment has been received.
- Interest will be chargeable on late payments on the terms specified above.
Data Protection Act
The Client undertakes that it will not collect data from or via the Services provided by Xanda without obtaining the appropriate registration and otherwise complying with its obligations under the Data Protection Act 1998 or equivalent legislation and that it will not collect any data from the Services provided by Xanda without giving sufficient prior written notice to Xanda to apply for like registration.
Betting Gaming And Lotteries Act
The Client undertakes that it will not use the Services provided by Xanda for competitions within the meaning of the Betting Gaming and Lotteries Act 1963 or the Lotteries and Amusements Act 1976 and the Betting and Gaming Duties Act 1981 without full prior consultation with Xanda and first obtaining licenses under those Acts or any amending legislation.
Financial Services Act
The Client undertakes that it will not carry on or purport to carry on investment business through the Internet or advertise such services unless authorised to do so under the current Financial Services Act and the Client further undertakes to comply with the provisions of the current Financial Services Act or any other legislation regarding financial services in force at the time of this Agreement or subsequently in all other respects.
Obscene and Defamatory Material
Xanda gives no warranty or guarantee and explicitly and unequivocally excludes all responsibility and liability for all and any information and material contained on or within the Internet as a result of Xanda providing the Project and Services, whether such information or material is included by the Client personally, by any third party or by Xanda on the instructions of the Client. Xanda shall have no liability to any person or company and the Client shall indemnify and hold harmless Xanda from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, Xanda as a result of or in connection with any claim made against Xanda as a consequence of any such information and material including without limitation any material that is private, offensive, obscene, defamatory or inflammatory. It is the Client’s responsibility to moderate any third party submissions and to protect itself with the appropriate indemnity provisions in its own terms and conditions for its customers. Accordingly, all Xanda liability or responsibility for the content of any Client or third party submissions, advertising, information or Materials on any website or software developed by Xanda and any damage it may cause is hereby disclaimed and excluded to the maximum extent permitted by law.
Telecommunications and Broadcasting
The Client undertakes that it will obtain all necessary licences under UK Telecommunications and Broadcasting Legislation and that it will comply in every respect with such legislation.
The Client agrees and accepts that it may be subject to European and UK law on anti-competitive practices including without limitation abuse of a dominant position and concerted practices. The Client undertakes to Xanda that it will not, in respect of the Project, enter into any agreement that has as its object or effect the restriction of competition within the UK or Europe nor will it at any time seek to abuse a dominant position within its relevant market, unless such activity is specifically permitted by law.
The Client accepts and understands that this agreement does in no way limit or exclude Xanda from working with any other organisations of any kind within any direct, indirect or otherwise industry the Client operates in. The Client also understands that Xanda remain free to use any or all Intellectual Property belonging to Xanda without limitation.
- No forbearance, delay, failure or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
- Neither Party can assign the benefit or burden of this Agreement without the prior written consent of the other Party.
- The UK shall be considered the place of first publication of any material on the internet or Website.
Xanda shall not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this agreement that is caused by events outside its reasonable control, including without limitation Internet outages, communications outages, fire, flood, war or act of God.
If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-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. If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
No partnership or agency
Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
Governing law and jurisdiction
This agreement, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.