Terms and Conditions
These General Terms and Conditions shall apply to all and any of the Software accessed and/or used by the Service User under this Agreement (“Software”) for Software Service Provisions (i.e. the provision of software application(s) hosted on Service Provider’s server and accessed by the Service User from a remote location). Any Special Terms and Conditions which may apply to any particular type of Software shall be contained in the Schedule relating to the same which will be attached or may later be adopted as a schedule to this Agreement. Any Special Term, Condition or provision which is inconsistent herewith shall override these General Terms and Conditions.
The Software which the Service User has selected to use will be licensed to the Service User by Service Provider in accordance with the terms and conditions of this Agreement including any Special terms and conditions specified in Schedule A.
The Software and all other material, information and services made available to the Service User by clicking the “ACCEPT” button are part of Service Provider’s computer system (the “System”). The System comprises hardware, software, firmware and communications facilities which are continually amended and updated.
The Service User acknowledges and agrees that any part of the System including any Software may be amended from time to time during the continuance of this Agreement.
In order for the Service User to gain access to and use the Software and the System, Service Provider hereby grants to the Service User a non-exclusive, non-transferable licence to access the System using Service Provider’s software (“Service Provider Software”) to enable it to use the Software during the Term of this Agreement in accordance with the following conditions:
Service Provider Software may only be used by the Service User to access the System for the sole purpose of using the Software licensed by the Service User hereunder;
All other terms of this Agreement shall (where applicable) apply to Service Provider Software including but not limited to clauses 3, 7-10.
Service Provider shall use its all reasonable endeavours to ensure that the System will (subject to other terms of this Agreement) be available 24 x 7 x 365. This undertaking does not apply to the Software products which are third party.
Security and Confidentiality
All servers are operated to the highest industry security standards and provide protection from illegal access.
All data on the server will be backed up daily
Service Provider shall use best endeavours that the Customer’s data which is maintained on the System will be kept confidential and will not knowingly be disclosed to a third party unless required by law or an appropriate authorised authority.
Standard Support to the Service User will be available during Service Provider’s normal business hours 09.00 to 17.00 GMT Monday to Friday in each week (except for national holidays) that this Agreement is in force as follows:
Service User Help Desk facilities; the Service User can email the Service Provider’s Service User Help Desk which is available during Service Provider’s normal business hours in the event of a problem or failure of the System or Software performance.
The Service User’s nominated contact person must submit sufficient material and information to enable Service Provider’s support staff to duplicate the problem. Service Provider’s support staff will attempt to solve a software problem immediately, or as soon thereafter as possible.
When appropriate, Service Provider’s support staff will give an estimate of how long it will take to resolve and where possible provide a temporary workaround solution until the problem has been resolved. Service Provider will keep the Service User advised on the progress of problem resolution.
Conditions of Use of the Software and System
The System and Software may only be accessed and used by Service User who has been issued with a login ID and password which the Service User has paid for.
If the Service User requires multiple logins on the same username password then the same is strictly subject to agreement with Service Provider and the provisions of this clause.
Service Provider reserves the right to monitor the Service User’s usage of the Software and System and to review the fees and charges in the event of excessive use.
The Service User is solely responsible and liable for his/her use of the System and Software including but not limited to proper use of his/her login IDs and passwords. The Service User must notify Service Provider immediately if it suspects that there has been any breach of this provision.
Shared access to the Software and System is not permitted under this Agreement without Service Provider’s prior written consent.
The Service User shall use the Software and System solely for the purposes stated in the Preamble above.
The Service User shall not reproduce or redistribute the Software or Service Provider Software in machine-readable form other than with the prior written consent of Service Provider.
The Service User shall not otherwise than with the prior written consent of Service Provider use, store, download, sell, redistribute or deal with the Software or Service Provider Software in any manner or for any other purpose than in accordance with this Agreement.
The Service User shall be liable, notwithstanding any other remedies Service Provider may have against the Service User including termination of this Agreement to indemnify Service Provider for any loss Service Provider suffers and/or to reimburse Service Provider for the gain the Service User obtains in contravention of this Clause.
The Service User shall faithfully reproduce or, if omitted, add the copyright symbol and clause of Service Provider and/or Software copyright owner as may be identified on the Software, Service Provider Software or other software or proprietary material as follows: “© 2016 Xerofone Ltd ALL RIGHTS RESERVED” to all information obtained from the System or by use of the Software or Service Provider Software, on all copies (authorised or otherwise) made whether in printed form, magnetic or any other media.
The Service User acknowledges that he/she is aware that use of the Software, whether by accessing, utilizing, storing or otherwise dealing with the same may from time to time be subject to certain statutory or other external regulations, conditions and restrictions (including but not limited to data protection, financial services, etc regulations). The Service User undertakes to comply with all such regulations, conditions or restrictions.
Other than with the prior written consent of Service Provider, the Service User is expressly prohibited from using or redistributing the Software or Services for the purposes of:
(i) acting, either solely or in conjunction with any other party, as an System/Service Provider;
(ii) commercial redistributing or reproduction of the same through its own or any third party network, cable or satellite system;
(iii) permitting or allowing the Software or System to infringe or be infringed or otherwise prejudice the proprietary rights of Service Provider, Software or System Suppliers;
(iv) allowing any third party to access the Software or System unless expressly so permitted by Service Provider.
Service User Equipment and Access to the System
Service Provider may at any time require the Service User to disconnect its Equipment from accessing and using the System or Software if in the opinion of Service Provider, such Equipment is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in the System. In the event that the Service User is so required to disconnect, Service Provider will, as soon as possible thereafter, advise the Service User of such changes as must be made to such Equipment to enable the Service User to resume access and use of the System and the Software.
Any breach of sub‑clause (a) or unauthorised access to or use of the System will entitle Service Provider at its sole discretion, in addition to any other remedy it may have, to terminate access rights to the System and/ or Software immediately (temporarily or permanently) or terminate this Agreement as a whole.
The Service User shall ensure that the Equipment shall not be used to access or retrieve any part of the System which is not part of the Software licensed to the Service User under this Agreement.
The Service User shall not without Service Provider’s express prior written consent, and shall ensure that no other person shall:
(i) make any additions, modifications, adjustments or alterations to the Service Provider Software or System;
(ii) attempt to rectify or permit any persons other than Service Provider or its agent to rectify any fault or inaccuracy in the Service Provider Software or System;
(iii) otherwise tamper with the Service Provider Software or System;
(iv) use Service User’s Equipment (when dealing in any way with the Software or System) in a manner which is inconsistent with the terms and conditions of this Agreement;
(v) permit the Equipment to be linked to or communicate in any manner or be used in connection with any other party’s System, time‑sharing or other system, computer bureau, software or telecommunication service or any other service system or information distribution network, whereby the information, material or Software obtained from the System can be accessed, used, stored or redistributed as the case may be, by or through any such other equipment.
The Service User shall at all times permit Service Provider to have access by dial up or such other method to the Service User’s local area network and to the Equipment and Service Provider Software for the purposes of providing the services hereunder and for inspection, testing and monitoring in accordance with this Agreement.
Copyright, Patents, Trade Marks and Other Intellectual Property Rights relating to the Service Provider Software and/or the System
(a) The Service User acknowledges that any and all of the copyright, patents, trademarks, and other intellectual property rights subsisting in or used in connection with the Service Provider Software and the System including the manner in which it is comprised, compiled, presented or appears (“look and feel”) and all information, documentation and manuals relating thereto are (unless another owner is specified therein or thereon such party being hereinafter referred to as the “Owner”) the property of Service Provider or the Owner (as the case may be) and the Service User shall not during or at any time after the expiry or termination of the Agreement in any way question or dispute the ownership by Service Provider or the Owner as the case may be of any such rights.
The Service User shall not during or after the expiry or termination of this Agreement, without the prior written consent of Service Provider or the Owner as the case may be or to the extent only permitted by the applicable law, abuse or permit the abuse of such copyright, patent or other intellectual property right or use or adopt any trade mark, trade name or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name or commercial designation used by Service Provider or the Owner as the case may be.
Infringement of the System and Content
The Service User undertakes not to reproduce, adapt, translate, arrange or make available to any third party, either directly or indirectly, any part of the System, or software (including but not limited to Service Provider Software) or its contents of which the Software forms a part (including any electronic materials necessary for its operation) except to the extent that and for so long as the Service User is expressly permitted to do so in accordance with this Agreement, or as permitted by any mandatory provisions of law, and undertakes to take all necessary steps to prevent access to the System by any unauthorised person.
(d) Unauthorised Extraction and Re-utilisation
Notwithstanding other provisions of this clause and irrespective of whether or not copyright in the System, Software or content is owned by Service Provider, the Service User shall not, other than as expressly permitted in this Agreement, extract or re-utilise the contents of the System (or any part thereof) for any commercial purpose including but not limited to trading, building commercial Systems, reselling or redistributing the Software.
(e) Remedies of Service Provider
The Service User acknowledges that civil and criminal penalties may be incurred in the event of any infringement of the copyright and/or other rights in relation to the System or its Software, and that any such infringement by the Service User may result in incalculable damage and/or loss to Service Provider and/or the Owner, and accordingly agrees that, in addition to any other right or remedy of Service Provider or the Owner, Service Provider or the Owner shall be entitled to immediate injunctive relief to restrain any actual or apprehended infringement thereof. The Service User undertakes to indemnify Service Provider and/or the Owner in full, against all loss, damage, costs and expenses (including loss of profit) which may be incurred by Service Provider and/or the Owner by reason of any such infringement by the Service User.
(a) Service Provider regards the information, facilities, software and services relating to the System and the Software or marketing thereof as confidential to Service Provider and the Service User hereby agrees that it will use such confidential information solely for the purposes of this Agreement and that it shall not disclose, whether directly or indirectly, to any third party such information other than as required to carry out the purposes of this Agreement.
In cases where disclosure is necessary, the Service User will, prior to any such disclosure, obtain from such third parties duly binding agreements to maintain in confidence the information to be disclosed to the same extent at least as the Service User is bound to Service Provider hereunder.
Service Provider agrees to keep the Service User’s data maintained on the System confidential in accordance with clause 5 (b) (iii) above.
The foregoing provisions shall not prevent the disclosure or use by either party of any information which is or hereafter, through no fault of the receiving party, becomes public knowledge or to the extent permitted by the applicable law.
By using this software, end users will have given consent to be end users, whether a child to a parent or an employee to an employer, or a sub-contractor to a main contractor, or a social entertainment event or club goer to the club or event, for example. In being end users, such users will have accepted the terms and conditions of using this software and in so doing will have waived any legal right to claim against having to use this software.
(a) Service Provider undertakes to use all reasonable endeavours to ensure that the Software is accessible using the System during at all times and that if any material errors occur in the Software or System they will be addressed as soon as possible.
(b) Other than as provided in sub‑clause (a) above, Service Provider shall not be liable in contract, tort or otherwise for any direct, indirect or consequential loss or damage sustained by the Service User or others directly or indirectly making use of the Software, the System and Service Provider Software including but not limited to any loss or damage resulting as a consequence of any defects, delays, interruptions or failures in the System, Service Provider Software or inaccuracies or errors in the Software and specifically excludes the same to the extent permitted by the law applicable to this Agreement.
(c) Unless otherwise excluded pursuant to the foregoing provisions of this Clause, the liability of Service Provider in contract, tort or otherwise for any direct, indirect or consequential loss or damage (excluding death or personal injury) sustained by the Service User or others directly or indirectly making use of or arising in any way from the Software or System whether arising as a result of Service Provider’s negligence, wilful default, misrepresentation or other breach or breaches of its duties or obligations, shall be limited to the total Service Fees and Charges payable by the Service User in respect of the Software in the relevant year.
(a) The Service User undertakes fully and effectively to indemnify and keep indemnified at all times Service Provider against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by Service Provider directly or indirectly in respect of any breach by the Service User of any of the provisions of this Agreement or any schedule attached or adopted as relative hereto.
(b) The Service User further undertakes that it will not seek to recover and shall not be entitled to recover from Service Provider or to be indemnified by Service Provider in respect of any direct, indirect or consequential loss or damage or against any claims, proceedings, costs, demands, liabilities and expenses whatsoever sustained, incurred or paid by the Service User to any party in respect of any of the matters specified in this Agreement and in any schedule attached or adopted as relative hereto other than as required by the applicable law.
Term and Termination
This Agreement shall take effect on the date that the organisation, body, group, school, parent and Xerofone has agreed and fixed with the Service Provider, and has paid the Service Fee on behalf of the Service Users (on or before that date or on an agreed direct debit mandate/payment schedule) and shall continue for the agreed period until or unless terminated by either party giving to the other not less than 30 days prior written notice, subject always to prior termination as herein specified.
Notwithstanding any other provisions herein contained, and without prejudice to any other rights such party serving notice may have, either party may forthwith terminate this Agreement by written notice to the other if any of the following events shall occur:
(i) if the other party commits any breach of the terms or conditions of this Agreement including the terms, conditions and provisions of any schedule attached or adopted hereto and fails to remedy such breach (or in so far as such breach is not capable of remedy to furnish adequate compensation therefor) within (30) thirty days after receiving written notice from the party requiring it so to do;
(ii) if the other party becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a private limited or a public limited company or equivalent organisation in the jurisdiction of the applicable law) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if any distress or execution shall be threatened or levied upon any equipment and/or software or other property of the party entitled to serve notice hereunder or if the other party is unable to pay its debts in accordance with the law relating to this Agreement.
(c) Termination of this Agreement shall be without prejudice to any accrued rights of either party and shall not affect obligations which are expressed not to be affected by expiry or termination hereof.
(d) The Service User undertakes that within seven (7) days after the date of expiry or termination of this Agreement for whatever reason, the Service User shall uninstall/purge/expunge from the Service User’s Equipment, Service Provider Software, supporting software (if any) and any copies of any parts of the Software transferred and/or stored during this Agreement and furnish Service Provider with a certificate, certifying that it has so uninstalled/purged/expunged the same.
Neither party shall be liable to the other in any way whatsoever for failure, interruption, delay or any other matters of the nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock‑outs and industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; the failure of or interruption to the System, the Software, or problems associated with transmission or access by/to the System; the unavailability of upgrade material, information or applications for or to update the System or Software; or the requisitioning or other act or order by any government department, council or other constituted body.
All notices to or by the respective parties hereto shall be in writing in the [English] language and shall be deemed to have been duly given when emailed to the respective parties.
The Service User shall not, without the prior written consent of Service Provider, assign or transfer this Agreement or any of its rights under this Agreement to any other person.
Failure or neglect by Service Provider to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of Service Provider’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice Service Provider’s rights to take subsequent action.
Entire Agreement and Amendments
This Agreement supersedes any arrangements, understandings, promises or agreements made or existing between the parties prior to the Service User clicking the “ACCEPT” button of this Agreement which constitutes the entire understanding between the parties hereto.
The headings of the paragraphs of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
In the event that any or any part of the terms, conditions or provisions contained in this Agreement or any schedule attached or adopted as relative hereto shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
This Agreement shall be governed and construed in all respects in accordance with Northern Ireland Law and any disputes shall be subject to the Jurisdiction of the Northern Ireland Courts.
Xerofone Ltd RESERVES THE RIGHT TO MODIFY THESE TERMS AND CONDITIONS AT ANY TIME. IF THESE TERMS AND CONDITIONS DO CHANGE AT ANY TIME, IT WILL BE UPDATED ON THE WEBSITE www.Xerofone.com THESE MODIFICATIONS TAKE IMMEDIATE EFFECT AFTER BEING POSTED / UPDATED. YOU SHOULD, THEREFORE, PERIODICALLY CHECK THESE TERMS AND CONDITIONS, AS THEY ARE, AND WILL REMAIN, BINDING ON YOU. CONTINUED USE OF OUR SOFTWARE AS A SERVICE, AFTER NOTIFICATION OF ANY CHANGES IN TERMS AND CONDITIONS, CONSTITUTES YOUR ACCEPTANCE OF THESE MODIFIED TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY REVISIONS, YOU SHOULD