XtraBase: General Terms & Conditions

DESCRIPTION OF SERVICES TO BE PROVIDED: The Company will provide access to the XtraBase Suite (“Software”) including all upgrades and enhancements during the Term of this Agreement according to the terms stated in the Agreement. In consideration of the fees payable under this Agreement, the Company grants the Subscriber a non-exclusive, non-transferable licence to install the Software on the number of Devices (either Computers or mobile Devices) specified at the start of this Agreement, and to use the Software on and from the date of this Agreement according to the terms and conditions of this Agreement during the Term (as specified st the start of this Agreement). Access and use to the Software must be via Device which supports the Software and which is specified in the user documentation available at https://www.xtrabase.co.uk or via the ‘help’ button in the Software. The Company will have NO OBLIGATION TO INSTALL OR SET UP THE SOFTWARE, NOR TO PROVIDE ANY TRAINING WITH RESPECT TO ITS SET UP OR USE, other than providing basic instructions on how to do so. The Subscriber shall not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the Authorised Users (as defined below).

DEVELOPMENT/INTEGRATION FEE: If it becomes apparent that additional development and/or configuration work is required to facilitate the Subscriber’s use of the Software (including, but not limited to, data import/export, reports), the Subscriber acknowledges that it will be required to pay the Company the Development/Integration Fee. Any such additional work will be pre-agreed in advance in writing between the parties. The payment of the Development/Integration Fee will be in accordance with the Payment Terms (below).

AUTHORISED USERS: The Subscriber may permit one user to access and use the Software per Device for the Term (together the “Authorised Users”, each an “Authorised User”). The Subscriber undertakes that it will not allow or suffer any installation of the Software to be used by more than one individual Authorised User, unless it has been reassigned in its entirety to another Authorised User, in which case the original Authorised User shall no longer have any right to access or use the Software. In the event that the original Authorised User is retaining the Device with the original downloaded Software, all copies of the Software will be deleted on the prior Device before it is installed on the new Authorised User’s Device. The Subscriber undertakes that each Authorised User shall keep a secure password for their use of the Software.

ADDITIONAL DEVICES: Additional devices may be added (at an additional cost to be agreed) from time to time during the Term as agreed in writing by the parties. The Subscriber acknowledges and agrees that any devices added to this Agreement will be governed by the terms and conditions contained herein unless specifically amended by signature of both parties. The cost of the additional devices will be added to the Total Monthly Fee through the remaining term of the Agreement.

USE OF THE SOFTWARE: The Subscriber agrees to use the Software in good faith and not for any unlawful purpose. The Subscriber shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Software that (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activities; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property; and the Company reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s access to any material that breaches the provisions of this clause. The Subscriber shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means, or attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, or access all or any part of the Software in order to build a product or service which competes with the Software. The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify the Company. The Company may, without incurring any liability whatsoever, block or suspend the Subscriber’s access to the Software in the event of an actual or suspected breach of this clause, for as long as the Company deems necessary in order to protect its legitimate business interests.

THE SUBSCRIBER’S OBLIGATIONS: The Subscriber shall provide the Company with all necessary co-operation in relation to this Agreement. The Subscriber shall, without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement. The Subscriber shall ensure that the Authorised Users use the Software in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement. The Subscriber shall obtain and maintain all necessary licences, consents and permissions necessary for the Company, its contracts and agents to perform their obligations under this Agreement, including without limitation the provision of the Software. The Subscriber shall ensure that its network and systems comply with the relevant specifications provided by the Company.

PAYMENT TERMS: The Monthly Price Per Unit may be adjusted to the current market rate at the renewal of this Agreement. In the event of early termination of this Agreement by the Subscriber for any reason, the full balance of any sums due and unpaid for the remainder of the Term shall be payable forthwith upon the effective date of termination. The Subscriber acknowledges the obligation to continue payments in all events including but not limited to cancellation of service, service interruptions, lost devices, damage to equipment etc. The Company shall invoice the Subscriber at the beginning of the month for use of the Software in advance. All payments by the Subscriber to the Company shall be made in pounds sterling (GBP) to the Company by PayPal, cheque, BACS or direct transfer to the bank account nominated by the Company, or any other payment mechanism nominated by the Company. The Subscriber acknowledges the obligation to pay the Total Monthly Fee on the Monthly Payment Day. The Subscriber acknowledges that all amounts and fees stated or referred to in this Agreement are non-cancellable and non-refundable.

HOSTING: The Software, and all Subscriber data on the Software, will be hosted on a server maintained by the Subscriber (or a third party selected by the Subscriber) and the Subscriber alone shall be responsible in respect of the same. The Company in no way accepts any liability in respect of the hosting of the Software or any Subscriber data on the Software.

RECONNECTION FEE: This Agreement will run from the first full month of Software service following the date of this Agreement. Should connection(s) be shut off for any reason a reconnection fee of £20 per Device may apply.

SUBSCRIBER DEVICE EQUIPMENT: The Company is not responsible for installation, operation, quality of transmission, cost of maintenance of device equipment required to utilise the Software. The Subscriber may change devices at any time, but any change in service or equipment may require additional programming of equipment or changes to assigned codes or numbers, which may require programming fees. Total Monthly fees are due and payable to the Company despite any service interruptions or discontinuation that is outside the control of the Company.

DATA PROTECTION: For the purposes of this section of this Agreement:

“Applicable Laws” means (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK. “Data Protection Legislation” the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including without limitation, the privacy of electronic communications). “UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), each as amended. The Subscriber acknowledges that, in terms of any personal data (as defined in Data Protection Legislation) being used or processed by or via the Software, it (and each of its Authorised User’s) acts a “Data Controller” and/or “Data Processor” (each as defined in Data Protection Legislation). The Company shall only use the personal data of a Subscriber in accordance with this Agreement and its privacy policy. A copy of the Company’s privacy policy, as updated from time to time, is available here: https://xtrabase.co.uk/Privacy.aspx Both the Company and the Subscriber will comply with all applicable requirements of the Data Protection Legislation. The requirements of this Agreement are in addition to, and do not relieve, remove or replace, a party’s obligation under the Data Protection Legislation. The parties acknowledge that (other than as set out above in relation to data being used or processed by or via the Software) for the purposes of the Data Protection Legislation, the Subscriber is the Data Controller and the Data Processor. The below sets out the subject matter, nature and purpose of possible processing by the Company and the duration of the processing and the types of personal data and categories of Data subject: (a) SUBJECT MATTER: The Company may, upon request by the Subscriber, process personal data in the course of providing its services in respect of the Software to the Subscriber under this Agreement, for the purposes set out below. In doing so, the Company may access and process personal data, in respect of which the Subscriber is the Data Controller, that is being held in the Software. (b) NATURE AND PURPOSE OF PROCESSING: (i) to diagnose issues with the Software (including but not limited to functionality issues and processing issues); (ii) to integrate the Software with Subscriber back end systems; (iii) to develop reports to Subscriber specifications; and (iv) for any other purpose agreed in writing between the parties (c) DURATION OF PROCESSING: the duration of this Agreement (d) TYPES OF PERSONAL DATA: customer name, address, contact details, interaction/product history, employee name and contact details location data, job activity. (e) CATEGORIES OF DATA SUBJECT: the customers, employees, workers, and contractors of the Subscriber. The Subscriber will ensure that it has all the necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Company for the duration and purposes of this Agreement. The Company shall, in relation to any personal data processed by it in connection with this Agreement: (a) only process that personal data in accordance with the above unless the Company is required by Applicable Laws to otherwise process the personal data. Where the Company is relying on Applicable Laws as the basis for processing personal data, the Company shall promptly notify the Subscriber of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Subscriber; (b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage of the data and the nature of the data to be protected, in all cases having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to 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); (c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; (d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Subscriber has been obtained and the following conditions are fulfilled: (i) the Subscriber or the Company has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and (iv) the Company complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the personal data; (e) assist the Subscriber, at the Subscriber’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; (f) notify the Subscriber without undue delay on becoming aware of a personal data breach; (g) at the written direction of the Subscriber, delete or return personal data and copies thereof to the Subscriber on termination of this Agreement unless required by law to store the personal data; and (h) maintain complete and accurate records and information to demonstrate its compliance with this paragraph. The Subscriber consents to the Company appointing third-party processors of personal data under this Agreement, provided that the Company enters into a written agreement with such third-party processors which contain data protection provisions which are at least as onerous as those set out in this Agreement, and in any event which reflect the requirements of the Data Protection Legislation. Either party may, at any time on not less than 30 days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

PROPRIETARY RIGHTS: The Subscriber acknowledges and agrees that the Company and/or its licensors own all intellectual property rights in the Software. Except as expressly started herein, this Agreement does not grant the Subscriber any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software.

INDEMNITY: The Subscriber shall be solely responsible for, and shall indemnify, defend and hold the Company free and harmless from all damages, liabilities, charges, and expenses (including legal fees) from all claims, lawsuits, or any other proceedings to the extent arising out of or relating to (a) use of the Software in a manner permitted or not permitted by this Agreement, by the Subscriber, any Authorised User, or any other person who has gained access (whether authorised or not) to the Software through the Subscriber or its Authorised Users; or (b) infringement of any right resulting in any way from the use of the Software with any other software or hardware provided or not provided by the Company or from any computer software or printed, electronic, or recorded materials created by the Subscriber or independent contractors. This clause is not intended to limit the Subscriber’s duty to indemnify the Company.

NON-PAYMENT / BREACH: A late payment charge of 4% above the base rate of the Bank of England (or the maximum interest rate permitted by law) will be payable if any fees payable by the Subscriber under the terms of this Agreement are not received when they fall due. A charge of £25.00 will be charged to the Subscriber for any cheque or negotiable instrument tendered by the Subscriber and returned unpaid by a financial institution for any reason. The Company may demand payment by money order, banker’s draft, or any other similarly secure form of payment, at the Company’s discretion at any time or from time to time. If the Company obtains the services of a collection agency or a legal professional to assist the Company in remedying the Subscriber’s breach of this Agreement, including but not limited to breach of the terms and conditions of this Agreement, in addition to any other remedies the Company may have the Company may temporarily or permanently terminate the Subscriber’s access to the Software. If access to the Software is terminated, all outstanding payments to be made in instalments are accelerated and immediately due in full.

RENEWAL AND TERMINATION: At the end of the Term, unless terminated, this Agreement will automatically be renewed for a period of one year. The Monthly Price Per Device may be adjusted to the then current market rate at the renewal of this Agreement.

FORCE MAJEURE: The Company shall have no liability to the Subscriber under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, 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 (whether involving the workforce of the Company or not), 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 its suppliers, licensors or sub-contractors, provided that the Subscriber is notified of such an event and (if possible) its expected duration.

ASSIGNMENT / GOVERNING LAW: This Agreement may be freely assigned by the Company to any successor of it or any other firm or entity capable of performing its obligations hereunder, and upon any such assignment, the Company shall be released from its obligations to the Subscriber. The Subscriber may not assign this Agreement without the prior consent of the Company. Subject to the restrictions contained herein, this Agreement shall bind and enure to the benefit of the successors and permitted assigns of the parties hereto. The laws of England and Wales shall govern this Agreement. Any legal proceeding brought by or against the parties with respect to this Agreement shall be brought in the courts of England and Wales and the parties hereby irrevocably submit to such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the above courts.

ENTIRE AGREEMENT: This Agreement constitutes the complete and exclusive agreement of the parties with respect to the subscription for Software by the Subscriber, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, understandings between them and all other communications of any kind by any means, whether written or oral, between the parties relating to the subject matter of this Agreement. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party acknowledges that the parties have read this Agreement and agree to be bound by its terms. Any amendment or waiver of this Agreement or any exhibit hereto must be in writing, and executed by the Company and the Subscriber. The parties do not intend by this Agreement to create any benefit for any third party, and this Agreement does not give rise to any third party rights under the Contracts (Rights of Third Parties) Act 1999.

SOLE REMEDY: If there exists a material error in the Software, the Subscriber shall promptly inform the Company and the Company shall endeavour in good faith and in a reasonable time to correct such material error. The Subscriber’s sole remedy against the Company in the event of such an error is to allow the Company to correct the error. THE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY SHALL BE CORRECTION OR REPLACEMENT OF THE NON-CONFORMING SOFTWARE AT THE COMPANY’S DISCRETION.

WARRANTIES: The Software is provided to the Subscriber on an “as is” basis. The Company does not warrant that the Subscriber’s use of the Software will be uninterrupted or error-free, or that the information obtained by the Subscriber through the Software will meet the Subscriber’s requirements. The Company 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 Subscriber acknowledges that the Software may be subject to limitations, delays and other problems inherent in the use of such communication facilities. THERE ARE NO WARRANTIES OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE NOR OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (BY OPERATION OF LAW OR OTERWISE), BY THE COMPANY WITH RESPECT TO THE SOFTWARE OR ANY OTHER GOODS OR SERVICE PROVIDED UNDER THIS AGREEMENT. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF THE COMPANY HAS THE AUTHORITY TO BIND THE COMPANY TO ANY ORAL REPRESENTATIONS OR WARRANTY CONCERNING THE SOFTWARE OR ANY OTHER GOODS OR SERVICES PROVIDED BY THE COMPANY. ANY ORAL OR WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THE AGREEMENT SHALL NOT BE ENFORCEABLE BY THE SUBSCRIBER.

LIMITATION OF LIABILITY: THE COMPANY’S AGGREGATE LIABILITY TO THE SUBSCRIBER FOR ANY CLAIM IN CONTRACT, TORT OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, IT’S NEGOTIATION, OR IT’S PERFORMANCE OR NON-PERFORMANCE SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO THE COMPANY UNDER THIS AGREEMENT. THE COMPANY SHALL NOT BE LIABLE TO THE SUBSCRIBER FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES, EVEN IF THE COMPANY HAS BEEN ADVISED, OR KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. The Subscriber has reviewed the Software and has determined that the Software is suitable for their intended purpose. Nothing in this clause excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence, or for fraud or fraudulent misrepresentation.