Terms and conditions

This page (together with our Website Terms of Use and Privacy Policy) tells you information about XD and the Terms on which we provide the Services.

These Terms will apply to the Contract between XD and the Customer for use of the Services. The Customer should read these Terms carefully (with the Customer’s attention particularly being drawn to clauses 13 and 14) and make sure that they understand them before applying to use the Services.

The Customer should tick the box indicated on the sign-up page to accept these Terms. If the Customer does not accept these Terms it will not be able to apply to use the Services.

The Customer should print a copy of these Terms or save them to its computer for future reference.

XD may amend these Terms from time to time as set out in clause 23. These Terms were most recently changed by XD in February 2024.

These Terms, and any Contract between XD and the Customer, are only in the English language.

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in these Terms.

1.2 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 A reference to writing or written includes email but not fax.
1.5 A reference to a month shall be to a calendar month.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended and re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.

2. BASIS OF CONTRACT

2.1 These Terms shall apply to the Contract to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which may be implied by trade, custom, practice or course of dealing.
2.2 To use the Services the Customer must fully complete and submit the online sign up form on the Website. If a Free Trial is offered the end date of it shall be as set out on the sign up form.
2.3 The person submitting the sign up form on behalf of the Customer confirms that they have the authority to bind the Customer and enter into contracts on its behalf and that the information provided as part of the sign up process is correct.
2.4 Submitting the sign up form is an offer by the Customer to enter into a Contract with XD which XD is free to accept or decline at its discretion.
2.5 XD may send the Customer an email acknowledging receipt of the Customer’s request to sign up to the Services however a Contract shall only come into existence when XD starts to provide the Customer with the Services.

3. FEES AND PAYMENT

3.1 The Customer shall pay the Fees to XD for the Customer Subscription in full without deduction, set-off, withholding or counter-claim in accordance with this clause 3.
3.2 Should the Customer wish to continue to use the Services after the end of the Free Trial, the Customer must provide XD with valid, up-to-date and complete credit card details prior to the end of the Free Trial otherwise access to the Services shall be deactivated.
3.3 On the last Business Day of each month following the end of the Free Trial and for the remainder of the Subscription Term, XD shall record the number of Monthly Users and calculate the Fees payable which shall be notified to the Customer in its account area of the Website.
3.4 Following notification of the Fees the Customer shall have 14 days to raise any disputes or queries with XD. If this is not done then the Fees shall be collected automatically in accordance with clause 3.8.
3.5 XD shall consider any dispute or query raised and notify its decision to the Customer within 14 days after which time any outstanding Fees shall be collected. XD’s decision on in relation to any disputed invoice shall be final.
3.6 The Customer acknowledges that the Fees shall be payable in arrears based on the number of Monthly Users and whether any additional services have been selected and therefore may vary from month to month.
3.7 If the Contract is terminated partway through a month (outside of the Free Trial), XD shall apply, and the Customer agrees to pay, the Fees for the whole month during which the Contract is terminated.
3.8 The Fees shall be collected on or around the 15th day of each month by recurring credit card payment from the credit card notified by the Customer to XD.
3.9 If XD has not received payment on the due date, and without prejudice to any of its other rights and remedies, XD may:

• (a) without liability to the Customer, disable the Customer’s account and access to all or part of the Services and XD shall be under no obligation to provide any or all of the Services while the due amount concerned remains unpaid; and
• (b) charge interest on such due amounts at an annual rate equal to 5% over the Bank of England base rate from time to time accruing daily and compounding quarterly from the due date until fully paid, whether before or after judgment; and
• (c) charge the Customer on a full indemnity basis for the legal and/or administrative costs incurred in attempting to recover or recovering any monies due.

3.10 All amounts and Fees stated or referred to in the Contract are:

• (a) expressed in GB (pounds sterling), USD (US dollars), or EUR (Euros)
• (b) subject to clause 3.14 and 14.5(b) non-cancellable and non-refundable; and
• (c) exclusive of VAT, which (where applicable) shall be added to XD’s invoice(s) at the appropriate rate.

3.11 The Customer’s EU tax number (if applicable) must be added to the Customer’s account area of the Website. Any requests for refunds of VAT(for whatever reason) shall only be considered for the tax year in which the request is made. XD reserves the right to apply an administration fee of up to £45 per refund processed.
3.12 XD shall be entitled to increase the Fees by giving the Customer 30 days’ notice in writing. If the Customer does not agree to any such increase, it may terminate the Contract in accordance with clause 15.1 or discontinue the relevant service, in accordance with clause 6.3, as appropriate.
3.13 If the Customer has or is likely to have at least 50 Users registered to its account it may request to pay the Fees in advance on a quarterly or yearly basis on receipt of a written invoice rather than by recurring credit card payment. In the event XD agrees to such a request:

• (a) the Fees shall be based on the estimated Monthly Users;
• (b) each invoice shall attract an administration fee of up to £45 and must be paid in full before the start of the time period covered by such invoice;
• (c) if the estimated number of Monthly Users is exceeded by the Customer XD reserves the right to charge the Customer additional Fees which are payable by the Customer to XD on request; and
• (d) clauses 3.2, 3.6, 3.7 and 3.8 shall not apply to the Contract.

13.14 The Fees are generally non-refundable however if the Services are unavailable for a reason other than those set out in clause 16 for a period of one week or more XD may, if requested and at its sole discretion, credit the Customer’s account with an amount equal to the pro rated Fees payable in respect of that period.

4. CUSTOMER SUBSCRIPTION

4.1 Subject to these Terms and, in particular, the restrictions set out in this clause 4 and the Customer paying the Fees in accordance with clause 3 following the end of the Free Trial, XD grants to the Customer a non-exclusive, non-transferable, revocable right, without the right to grant sublicences, to permit the Users to use the Services during the Subscription Term solely for the Customer's internal business operations.
4.2 In relation to the Users, the Customer undertakes that each User shall keep a secure password for his use of the Services and that each User shall keep his password confidential.
4.3 The Customer shall not use the Services (or any aspect of them) to:

• (a) access, store, distribute or transmit any Viruses, or any material of any type during the course of its use of the Services that:
  • (i) is unlawful, harmful, threatening, defamatory, vulgar, obscene, infringing, abusive, harassing, racially or ethnically offensive or otherwise objectionable;
  • (ii) facilitates illegal activity;
  • (iii) depicts sexually explicit images;
  • (iv) promotes unlawful violence;
  • (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
  • (vi) in a manner that is otherwise illegal or causes damage or injury to any person or property;
• • (b) impersonate, falsely state or otherwise misrepresent its connection or affiliation with any person;
• • (c) transmit any spam or junk mail or any other unsolicited advertising or promotional material,

and XD reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to and/or delete any material that breaches the provisions of this clause 4.3.
4.4 The Customer shall not:

• (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
  • (i) and except to the extent expressly permitted under these Terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
  • (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
• (b) disguise or attempt to disguise the origin of any Customer Data or access to the Services; or
• (c) access or use all or any part of the Services in order to build a product or service which competes with the Services; or
• (d) access or use all or any part of the Services to provide services to third parties; or
• (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, charge, encumber or otherwise commercially exploit, or otherwise make the Services available to any third party except the Users, or
• (f) attempt to obtain, or assist third parties in obtaining, access to the Services, other than from XD and as provided under this clause 4.

4.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify XD. Until the Customer notifies XD, the Customer shall be responsible for any unauthorised use of the Services.
4.6 The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

5. SERVICES

5.1 XD shall, during the Subscription Term, provide the Services to the Customer in accordance with and subject to these Terms.
5.2 The Customer acknowledges that:

• (a) its use of the Services will not be uninterrupted or error free; and
• (b) downtime will inevitably occur from time to time due to planned maintenance (which XD shall use reasonable endeavours to give the Customer at least 24 hours advanced notice of) and unplanned maintenance and/or other events.

5.3 XD will, as part of the Services and at no additional cost to the Customer, provide the Customer with XD’s standard customer support services during Normal Business Hours. XD may amend the scope of the support services offered (including the provisions of clauses 5.4 to 5.7 below) in its sole and absolute discretion from time to time.
5.4 XD shall use reasonable endeavours to respond to the Customer’s requests for support:

• (a) if made during Normal Business Hours within 36 hours of such request; and
• (b) if made outside Normal Business Hours within 72 hours of such request.

5.5 The Customer shall pay XD’s reasonable costs to the extent support is required where:

• (a) the fault is attributable to something other than the Software (e.g. third party software or telecommunications or hardware failures);
• (b) the Customer has failed to implement a recommendation previously made by XD;
• (c) the Customer has operated the Software incorrectly;
• (d) a modification has been made to the Software without XD’s written consent; or
• (e) the Customer is in breach of the Contract.

5.6 Support is only available for the most recent version of the Software. The Customer shall permit XD to upgrade and modify the Software from time to time at its sole discretion.
5.7 Support shall not be provided unless the Customer has anti-virus software installed, maintained, upgraded and operating on a continuous basis.

6. ADDITIONAL SERVICES

6.1 XD may offer Customer specific branding or other additional Software features or services from time to time. These may be added to the Services provided under the Contract by agreement between the parties in writing.
6.2 The Customer may be required to enter into additional, service specific terms and conditions with XD and/or third parties if it wishes to take such additional services.
6.3 To the extent such services are optional, the Customer may remove particular services from the Services provided under the terms of the Contract by giving XD a minimum of 30 days’ notice in writing. Unless otherwise expressly provided in any applicable, service specific terms, XD may stop providing any such additional service at any time.

7. CUSTOMER DATA

7.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2 XD shall use reasonable endeavours to regularly back up the Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for XD to use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by XD. XD shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties contracted by XD to perform services related to Customer Data maintenance and back-up for which XD shall remain fully liable)
7.3 The Customer acknowledges and agrees that XD may access the Customer Data:

• (a) if required to do so by law;
• (b) to enforce these Terms or protect any other rights it may have;
• (c) to respond to claims that any Customer Data infringes the rights of third parties; or
• (d) to respond to the Customer or any User’s requests for support.

7.4 The Customer permits XD to access, aggregate, analyse and interpret the Customer Data for the purpose of producing anonymised reports and data (for example to work out the number of Users) for the internal business use of XD or for provision by XD to its customers and third parties, provided that personal data is not processed and no part of the Customer Data is disclosed or made available to any third party under this clause 7.4 in unmodified, identifiable or readily extractable form.
7.5 The Customer acknowledges and agrees that XD may copy or replicate Customer Data in order to facilitate or perform the Services and agrees to allow any Software modifications or additions requested by XD to enable such copying or replication to take place. However, and for the avoidance of doubt, XD shall not be obliged to back-up the Customer Data merely by reason of any such copying or replication.
7.6 The Customer consents to the access and use of the Customer Data by XD and its disclosure to (in whatever form) and use by third parties to the extent reasonably necessary to facilitate or perform the Services.

8. DATA PROTECTION

8.1 XD shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Personal Data. XD may amend its Privacy Policy from time to time in its sole discretion.
8.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
8.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and XD is the Processor. The Appendix to these Terms sets out the scope, nature and purpose of processing by XD, the duration of the processing and the types of Personal Data and categories of Data Subject.
8.4 Without prejudice to the generality of clause 8.2, the Customer will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of the Personal Data to XD for the duration and purposes of the Contract.
8.5 Without prejudice to the generality of clause 8.2, XD shall in relation to any Customer Personal Data processed in connection with the performance by XD of its obligations under this Contract:

• (a) process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes set out in the Appendix to these Terms unless XD is required by any applicable laws to otherwise process that Customer Personal Data;
• (b) promptly notify the Customer if it believes the instructions from the Customer violates any applicable Data Protection Legislation;
• (c) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
• (d) provide the Customer with such reasonable assistance, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• (e) keep, maintain and make available to the Customer, complete and accurate records and information to demonstrate compliance with this clause 8;
• (f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
• (g) at the written direction of the Customer, delete or return all Customer Personal Data to the Customer on termination of this Contract unless required by applicable law to store the Customer Personal Data;
• (h) maintain complete and accurate records and information to demonstrate its compliance with the Data Protection Legislation and this clause 8;
• (i) not transfer any Customer Personal Data outside of the United Kingdom unless the following conditions are fulfilled:
• the Customer or XD has provided appropriate safeguards in relation to the transfer;
• the Data Subject has enforceable rights and effective legal remedies;
• XD complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Customer Personal Data;
• XD complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Customer Personal Data that is transferred;
• (j) not engage any other processor or sub-processor ("Sub Contractor") without informing the Customer and informing the Customer of any intended changes concerning the addition or replacement of other processors or sub-processors and give the Customer the opportunity to object to the changes; and
• (k) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential.

8.6 XD undertakes to notify the Customer of any intended changes concerning the addition or replacement of a third party processor by providing a prior written notice to the Customer. The Customer consents to XD appointing third party processors of Customer Personal Data under this Contract provided that XD has entered with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Customer and XD, XD shall remain fully liable for all acts and omissions of any third party processor appointed pursuant to this clause. At the time of the conclusion of the Terms, XD uses no third party processors

9. THIRD PARTY PROVIDERS

9.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. XD makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
9.2 Any contract entered into and any transaction completed via any third-party website as set out in clause 9.1 is between the Customer and the relevant third party, and not XD. XD recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.
9.3 XD does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

10. CUSTOMER'S OBLIGATIONS

10.1 The Customer shall:

• (a) provide XD with:
  • (i) all necessary co-operation in relation to the Contract; and
  • (ii) all necessary access to such information as may be required by XD;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

• (b) keep the Customer contact information stored in its account area of the Website, complete accurate and up to date at all times;
• (c) comply with all applicable laws and regulations (including local laws of any applicable jurisdiction) with respect to its activities under the Contract;
• (d) carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner;
• (e) ensure that the Users use the Services in accordance with these Terms and be responsible for any User’s breach of these Terms;
• (f) obtain and shall maintain all necessary licences, consents, and permissions necessary for XD to provide the Services and perform its obligations under these Terms;
• (g) ensure that its network and systems comply with the relevant specifications provided by XD from time to time; and
• (h) be solely responsible for procuring and maintaining its own internet connectivity and other telecommunications links necessary for XD to provide the Services, and all problems, conditions, delays, delivery failures and other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

11. PROPRIETARY RIGHTS

11.1 The Customer acknowledges and agrees that XD and/or its licensors (if applicable) own all intellectual property rights in the Services(including the Software, Documentation and Apps) and the Website. Except as expressly stated these Terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of any aspect of the Services or the Website.
11.2 XD confirms that it has all the rights in relation to the Services and the Website that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
11.3 Nothing in these Terms shall prevent XD from entering into similar contracts with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.

12. CONFIDENTIALITY

12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party's Confidential Information shall not be deemed to include information that:

• (a) is or becomes publicly known other than through any act or omission of the receiving party;
• (b) was in the other party's lawful possession before the disclosure;
• (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
• (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
• (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

12.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Contract.
12.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract and shall impose confidentiality obligations at least as onerous as are included in this clause 12 on such employees or agents.
12.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute XD's Confidential Information.
12.5 XD acknowledges that the Customer Data is the Confidential Information of the Customer.
12.6 This clause 12 shall survive termination of the Contract, however arising.

13. INDEMNITY

The Customer’s attention is particularly drawn to this clause

13.1 The Customer shall defend, indemnify and hold harmless XD against claims, actions, proceedings, losses, damages, expenses and costs(including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation or the Customer’s breach of its obligations under clause 8 or the Data Protection Legislation, provided that:

• (a) the Customer is given prompt notice of any such claim;
• (b) XD provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
• (c) the Customer is given sole authority to defend or settle the claim.

14. LIMITATION OF LIABILITY

The Customer’s attention is particularly drawn to this clause

14.1 This clause 14 sets out the entire financial liability of XD (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

• (a) arising under or in connection with the Contract;
• (b) in respect of any use made by the Customer of the Services or any part of them; and
• (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

14.2 XD:

• (a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, any documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
• (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

14.3 Except as expressly and specifically provided in these Terms:

• (a) the Customer assumes sole responsibility for:
  • (i) ensuring the facilities and functions of the Services meet the Customer’s requirements;
  • (ii) the results obtained from the use of the Services, the Website and the Apps by the Customer, and for conclusions drawn from such use; and
  • (iii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
• (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
• (c) the Services are provided to the Customer on an "as is" and “as available” basis.

14.4 Nothing in these Terms excludes the liability of XD:

• (a) XD shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
• (b) XD's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Fees paid for the Customer Subscription during the six months immediately preceding the date on which the claim arose.

15. TERM AND TERMINATION

15.1 Subject to clause 15.2 the Contract shall continue on a rolling monthly basis until terminated in accordance with the remainder of this clause 15 or by either party giving not less than 30 days’ notice in writing to the other.
15.2 If it has been agreed that the Customer may pay the Fees in accordance with clause 3.13 then the Contract shall continue on a rolling quarterly or yearly basis (depending on the applicable invoicing frequency agreed) in accordance with the remainder of this clause 15 or by either party giving not less than 3 months’ notice in writing to the other. Subject to clause 15.3 and for the avoidance of doubt, no Fees paid shall be refunded in the event the Contract is terminated (for whatever reason) part way through a quarter or year (as applicable) already paid for.
15.3 On termination of the Contract by XD under clause 15.1 or the Customer under clause 15.5, XD shall refund the Customer such proportion of the Fees (if any) paid by the Customer in respect of any calendar month commencing after the termination date.
15.4 Without limiting its other rights or remedies, XD may terminate the Contract with immediate effect by giving notice in writing to the Customer if:

• (a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than five Business Days after being notified in writing to make such payment; or
• (b) the Customer is in breach of or is reasonably suspected by XD to be in breach of its obligations under clauses 4.3 or 4.4;
• (c) the Customer is subject to a Change of Control.

15.5 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other with immediate effect by giving notice in writing if:

• (a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
• (b) the other party has a bankruptcy order made against him or enters into any composition or arrangement with or for the benefit of his creditors, if an individual, or if a company, suffers an insolvency related event comprising either it being unable to pay its debts as they fall due, a petition is filed or order made for its winding up or an administrator, liquidator or receiver is appointed;
• (c) the other party ceases, or threatens to cease, to trade; or
• (d) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

15.6 On termination of the Contract for any reason:

• (a) all licences granted under the Contract shall immediately terminate and XD may immediately deactivate the Customer’s access to its account;
• (b) each party shall return (or destroy at the other party’s option) and make no further use of any Confidential Information, personal data, equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and
• (c) the accrued rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before termination shall not be affected or prejudiced.

15.7 Following termination XD may store a back up of the Customer Data for up to six months after which time it shall be deleted without further notice to the Customer.

16. FORCE MAJEURE

XD shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

17. WAIVER

17.1 A waiver of any right or remedy under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
17.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.3 Unless specifically provided otherwise, rights and remedies arising under the Contract are cumulative and do not exclude any rights or remedies provided by law.

18. SEVERANCE

18.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be invalid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

19. ENTIRE AGREEMENT

19.1 The Contract constitutes the whole agreement between the parties and supersedes any previous contract, licence, arrangement, understanding or agreement between them relating to the subject matter.
19.2 The Customer acknowledges and agrees that it has not relied on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.

20. ASSIGNMENT

20.1 The Customer shall not, without the prior written consent of XD, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2 XD may at any time assign, transfer, charge, sub-contractor deal in any other manner with all or any of its rights or obligations under the Contract.

21. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22. THIRD PARTY RIGHTS

The Contract does not confer any rights on any person or party(other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

23. VARIATION

23.1 XD may revise these Terms from time to time and the current version of the Terms shall apply to the Contract.
23.2 Whenever XD revises these Terms in accordance with this clause 23, XD will give you notice of this on the Website by stating that these Terms have been amended along with the relevant date at the top of this page.
23.3 Except for any variation by XD in accordance with this clause 23, no variation of the Contract shall be effective unless it is agreed between the parties in writing.

24. NOTICES

24.1 Any notice required to be given under the Contract shall bein writing and shall be delivered personally or be sent by recorded delivery post or by email, to the address or email address set out at clause 24.4, or to such other address or email as is otherwise specified by one party by notice in writing to the other.
24.2 XD may alternatively give notice to the Customer via a message on the Customer’s account area of the Website.
24.3 Any notice shall be deemed to have been duly received:

• (a) if delivered personally, when left at the address and for the party referred to in this clause; or
• (b) if sent by recorded delivery post on the second Business Day after posting; or
• (c) if sent by email upon receipt of a delivery receipt email from the correct email address; or
• (d) if delivered via a message on the Website, within two hours of its posting on the Website.

24.4 The addresses for notices are as follows:

• XD: X:drive Computing Limited, Office D and E, 2nd Floor, 1 Beer Cart Lane, Canterbury CT1 2NY
  support@WhosOff.com
• Customer: the postal address and email address of the Customer as provided to XD when the Customer signed up to the Services.

24.5 If deemed receipt would occur on a day which is not a Business Day, deemed receipt shall take place at 10.00 am on the next Business Day.
24.6 The provisions of this clause 24 shall not apply to the service of any proceedings or other documents in any legal action.

25. GOVERNING LAW AND JURISDICTION

25.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
25.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

DATA PROTECTION APPENDIX

Processing of Customer Personal Data by XD

1. Subject matter and scope

To record and store the Customer Personal Data provided by the Customer to XD.

2. Duration of the processing

The processing shall continue until the termination of the Contract.

3. Nature and purpose of the processing

To process the Customer Personal Data provided by the Customer to provide the Services pursuant to the Contract.

4. Type of personal data

Personal details including name, address, contact details, emergency contact details, age, ethnicity, date of birth and sex
Employment details including information relating to the data subjects’ job, working times, holiday, sickness and other absences, reviews, training records and qualifications

5. Categories of Data Subjects

Customers
Customers' employees