Date updated: 18th May 2020.
Standard Legal Terms and Conditions
Ixxy Limited and the entity named in the Order Confirmation as the “Client” agree to these Standard Legal Terms and Conditions applying to their Agreement.
Unless the context otherwise requires, the following defined terms shall have the following meanings for the purposes of this Agreement:
“Client IPR” all intellectual property rights in and to any content, materials, and any and all branding supplied to Ixxy Limited by the Client for incorporation in the Client Site together with Client Data, content generated by the Client’s web users and any other proprietary materials and tools provided by the Client to Ixxy Limited for use in connection with the Services;
“AUP” the Acceptable Use Policy for the Services set out in clause 6.1 below;
“Acceptance” acceptance by the Client of the Client Site prior to Launch in accordance with the procedure in clause 4;
“Agreement” the entire contents of this ‘Software Development Agreement’, including all Sections incorporated within it, the specific terms included within each Section, including the separate Order Confirmation, these Legal Terms and Conditions, Service levels and any other Special Terms set out in the Order Confirmation;
“Agreement Jurisdiction” shall be England and Wales, unless an alternative Agreement Jurisdiction is stipulated in the Order Confirmation;
“Agreement Law” shall be the laws of England and Wales unless an alternative Agreement Law is stipulated in the Order Confirmation;
“Availability” the percentage of time in which the servers operated by the Host, hosting the Client Site, are found to be operational and accessible to the Client’s web users so that they can access and view the Client Site online, excluding problems caused by a failure of the Client or the Client’s web users, the Client’s or a third party computer system or third party communications network, independent unavailability of the world wide web, emergency or scheduled maintenance by the Host of which the Client has been notified in advance; and “Unavailable” shall be interpreted accordingly;
“Business Hours” the hours of 9am to 5.30pm on standard working business days (Monday to Friday) in the Agreement Jurisdiction excluding public holidays;
“Client” the entity identified as such in the Order Confirmation;
“Client Data” user-generated content generated via the Client Site comprising personal data;
“Client Site” the Client’s website which is the subject of the Services as identified in the Order Confirmation;
“Client’s Web Users” end users of the Client Site;
“Confidential Information” any non-public information of the Parties hereto relating to its business activities, financial affairs, technology, marketing or sales plans (including Client Data) that is disclosed to, and received by or processed by, the other Party pursuant to the Agreement. Confidential Information includes, but is not limited to, the terms and pricing of this Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving Party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving Party without use of the Confidential Information.
“Content Management System” the back-end system which enables the Client to control the online operation of the Client Site;
“Customer” The customers of the Client, who the client may be holding data on or for.
“Defect” any software error, fault or failure in the Platform and/or Client Site that materially prevents it from functioning in the correct or expected manner;
“Excluded Events” any event that adversely impacts the Services that is caused by (a) the acts or omissions of the Party, its employees, clients, contractors or agents or Client Web Users; (b) the failure or malfunction of equipment, applications or systems not owned or controlled by Ixxy Limited, its subcontractors or the Host; (c) Force Majeure events; (d) emergency maintenance; (e) any proper suspension of Services pursuant to the Agreement; (f) the unavailability of the other Party’s required personnel, including as a result of failure to provide accurate, current contact information (g) any action on the part of a third party not performing authorised work under this Agreement that results in network or equipment outage (including but not limited to viruses, trojan horses, denial of service attack(s) and/or worms or criminal hacking);
“Force Majeure” any circumstances beyond the reasonable control of either Party including but without limitation any act of God, war or military action, terrorism, sanction, strike, fire, natural disaster;
“Host” as of the Signature Date shall be as named in the Order Confirmation but which hosting provider Ixxy Limited may change at its sole option on at least fourteen (14) days’ written notice to the Client;
“Launch Date” the date on which the Client Site is made available at the Clients’ live URL.
“Legal Terms and Conditions” these standard legal terms and conditions as set out in this Agreement;
“Ixxy Limited” Ixxy Limited, registered Limited Company, address:
THE OLD CASINO
28 FOURTH AVENUE
Registered company number 07805732
“Ixxy Limited IPR” the intellectual property rights of whatever nature, registered or unregistered, in the Platform and Services provided, developed or acquired by Ixxy Limited in the course of its business together with all trade names, trademarks and branding associated therewith, but excluding Client IPR and Client Data;
“Order Confirmation” separate, client-specific agreement. Setting out the details of the Services that the Client is contracting for under this Agreement;
“Party”, “Parties” meaning Ixxy Limited and/or Client individually being the two parties to this Agreement.
“Platform” the standard feature set of Ixxy Limited’s proprietary Content Management System, and, where required, E Commerce & Booking Modules as may be amended and updated from time to time under this Agreement and which features are concurrently available to multiple Ixxy Limited clients;
“Post-Acceptance Services” the Services outlined in clause 5.0 (to the extent relevant pursuant to the Order Confirmation) whereby Ixxy Limited provides the Services to the Client post Launch Date of the Client Site;
“Professional Rate Card” Ixxy Limited’s standard professional charges (daily and hourly) as set out in the Order Confirmation Agreement and as may be amended according to the terms of this Agreement, which may apply to certain specified chargeable Services pursuant to this Agreement;
“Project Start Date” the date on which Ixxy Limited starts working to provide the Services according to the Project Timeline (where applicable);
“Project Timeline” the timeline to which the Parties will endeavour to work in order to configure the Client Site for the Services (where applicable);
“Release” means the release version of a software required by a Host, Platform, Client Site or Content Management System or other system including to process Client Data or for the performance of the Services including Set-Up Services (for example 2.0.X, or 3.0.x or 3.1.X) for which patches and updates shall be made available by us or third parties.
“Service Fees” the fees set out in the Order Confirmation to be paid by the Client to Ixxy Limited for the Services;
“Services” all hosted services, data import/export, monitoring, support, backup and recovery, change management, technology upgrades, and training necessary for the Client’s productive use of such software to be provided by Ixxy Limited to the Client pursuant to this Agreement, as specified in the Order Confirmation as may be described in more detail elsewhere in this Agreement;
“Set Up Services” the Services outlined in clause 3.0 (to the extent relevant pursuant to the Order Confirmation) whereby Ixxy Limited develops the Client Site prior to User Acceptance Testing;
“Signature Date” the date on which this Agreement has been signed by both Parties and from when the Parties’ respective rights and obligations hereunder shall be deemed binding;
“Special Terms” the terms set out in the Order Confirmation (if any) as being “Special Terms” which shall override the specific clauses of these Legal Terms and Conditions to the extent that there is any inconsistency between them, pursuant to clause 1.2 below;
“Taxes” any applicable foreign, federal, state, or local taxes and charges assessed or incurred in connection with the Services, including without limitation, all governmental excise, use, sales, value-added, environmental assessments or charges, and occupational taxes and other fees, or other similar surcharges and levies, but excluding any taxes based on the Parties’ net incomes.
“Third Party IPR” any intellectual property rights not comprised in either Ixxy Limited IPR or Client IPR;
“Time and Materials” (T&M) an agreement between Ixxy and the client where work will be undertaken at an agreed hourly rate as defined in the Order Confirmation document. Time will be logged and billed for in fifteen (15) minute slots.
“User Acceptance Testing” the Client’s user testing of the Client Site, pursuant to clause 4.0.
1.2 In the event of a conflict between the Order Confirmation and these Legal Terms and Conditions, the Order Confirmation (and any Special Terms therein) shall prevail.
2.0 Ixxy Limited’s General Obligations and Responsibilities
2.1 The Services: Ixxy Limited shall provide the Services set out in the Order Confirmation to the Client on the terms and conditions set out in this Agreement.
2.2 Project Timeline: Where applicable, unless the Project Timeline is marked as ‘finalised’ in the Order Confirmation, Ixxy Limited shall finalise the Project Timeline with the Client as soon as practicable after (and no later than ten (10) working days after) the Signature Date. Ixxy Limited shall commence work from the Project Start Date and provide the Services according to the Project Timeline, subject to the Client’s compliance with clause 3.2 below.
2.3 Standard of Care: Ixxy Limited shall at all times provide the Services with due care and skill and to high professional standards in the full appreciation that the Availability of the Client Data is critical to the operation of the Client’s business and shall follow the reasonable directions of the Client.
2.4 Personnel: Ixxy Limited shall make available such personnel for the performance of the Services as shall be reasonably necessary to perform the Services competently and to an appropriate standard of care.
2.5 Location and working hours: The Services shall be provided by Ixxy Limited from its office in Brighton, East Sussex, UK and within Business Hours unless other hours are explicitly agreed in this Agreement as being applicable to specific Services.
2.6 Control of Services: The method and means of providing the Services shall be under the exclusive control, management and supervision of Ixxy Limited, giving due and proper consideration to the requests of the Client.
2.7 Subcontracting: Ixxy Limited shall have the right to subcontract any Services for which it is responsible hereunder provided that Ixxy Limited remains legally responsible and liable to the Client for the full performance of all of Ixxy Limited’s obligations under this Agreement. Ixxy Limited must ensure that any and all third parties that it subcontracts to hereunder comply with all applicable standards and restrictions of this Agreement for the Client’s benefit.
3.0 Set-Up Services
3.1 Project Contacts: The Parties shall each appoint a dedicated contact who will coordinate their Party’s team members, shall be authorised to give sign-off of key decisions on behalf of their Party and also act as the key point of contact with the other Party.
3.2 Project Timeline: Unless otherwise agreed, Ixxy Limited shall provide the Services in accordance with the Project Timeline in the Order Confirmation. Where the Parties have agreed a specific date for Launch in the Order Confirmation, Ixxy shall use reasonable endeavours to ensure that the Development Services are provided in accordance with the Project Timeline. Ixxy will not be liable to the Client in respect of any failure to meet the Project Timeline to the extent that that failure arises out of a delay in the Client or their subcontractors performing their obligations under this Agreement.
3.3 Provision of Client IPR and Resources: The Client will use commercially reasonable efforts to promptly provide all necessary brand materials as may be reasonably requested by the design team. The Client will use all commercially reasonable efforts to respond to questions within times specified above and provide prompt formal sign-off on design mockups, charter, testing, in accordance with the terms of this Agreement. Where needed for the project, the Client must also have a third party payment account (e.g. Worldpay) ready for incorporation into the Services in accordance with the Project Timeline.
3.4 Client Staff and Interim Sign-Off: The Client shall ensure the reasonable availability of relevant staff, information and requested resources to efficiently supply configuration information, approve visual designs for the Client Site and any other information required by Ixxy Limited in complying with the Project Timeline. Delays caused by the Client’s failure to do so may result in additional fees being incurred and/or delay to the Project Timeline.
3.5 Training: Ixxy Limited shall provide any agreed training in respect of the Client Site to the Client at a time, cost and location as agreed between the Parties.
4.0 Testing and Acceptance
4.1 Submission to Client for User Acceptance Testing: On completion of the Project set up, Ixxy Limited shall notify the Client that the Client Site is ready for review and shall provide the Client with confidential access details in a test environment for the Client Site, Source Sites and any other materials, training and directions agreed between the Parties to enable the Client to assess whether the Client Site contains any Defects.
4.2 Testing Period: The Client shall have five (5) business days in which to complete User Acceptance Testing, or longer if agreed in the Project Timeline. The Client shall review the configuration, design and implementation of the Client Site during User Acceptance Testing and shall commit proper resources to this.
4.3 Notifying Defects: The Client shall inform Ixxy Limited in writing before the end of User Acceptance Testing of any Defects identified during User Acceptance Testing, as determined by Client in its reasonable business judgment and shall provide Ixxy Limited with a full description of the Defects.
4.4 Remedying Defects: in fixed price projects or T&M projects where there is an agreed maximum budget, Ixxy Limited shall remedy problems identified by the Client during User Acceptance Testing and shall ensure that the Client Site does not contain any material software errors at no additional charge and the Client agrees to give Ixxy Limited reasonable assistance and liaison in this regard. For the avoidance of doubt, Ixxy Limited shall not be required through this procedure to remedy:
- any failure of the Client Site to be fit for any of the Client’s purposes which were not specified in the specification or which were not due to a Defect with the Client Site;
- any failure of the Client Site caused by the Client’s use of it other than in accordance with this Agreement or reasonable instructions for use provided by Ixxy Limited;
- any failure of the Client Site arising from its use in conjunction with any equipment or software not approved by Ixxy Limited.
- any failure by the Client to use, upgrade to or deploy a Release other than as specified in the Order Confirmation / Project Specification.
Work undertaken under a T&M agreement may incur charges for remedying defects.
4.5 Acceptance: The Client shall automatically be deemed to have accepted the Client Site either (i) by the Client providing written sign-off of its Acceptance of the Client Site; (ii) by the Client requesting in writing (including by an email to Ixxy that has been acknowledged) that Ixxy Limited shall make the Client site available in the live environment; (iii) at the completion of the User Acceptance Testing period, in the event that no problems are notified to Ixxy Limited or (iv) once all notified and agreed Defects have been successfully remedied by Ixxy Limited, whichever is later.
5.0 Launch and Post-Acceptance Services:
5.1 Post-Acceptance Services: On or as soon as reasonably practicable after Acceptance, Ixxy Limited shall promptly provide the Post-Acceptance Services.
5.2 Hosting: Ixxy Limited shall ensure that the Client Site is hosted in the clients test location and live environment by the Host in compliance with the Service Levels on an annually chargeable basis.
5.3 Support Services: From the Launch Date, Ixxy Limited shall provide the Support Services which will be charged according to the professional rate card as set out in the Client Order Confirmation agreement. Any other non-Defect related support and maintenance requests (e.g. enhancements or changes) are also chargeable according to the Professional Rate Card. The provision of the Support Services shall be in addition to and without prejudice to the Client’s other rights and remedies under this Agreement in respect of any material breach of contract or negligence by Ixxy Limited.
6.0 Client’s Miscellaneous Obligations:
6.1 Acceptable Use Policy (AUP): The Client will not use the Client Site, the Platform or any Ixxy Limited or Host infrastructure to transmit, distribute or store material: (i) that violates any law or regulation, (ii) that materially interferes with or adversely affects the Services, hosting infrastructure, or any third parties, (iii) that is tortious or violates any third party right (“Acceptable Use Policy, AUP”).
6.2 Cooperation: The Client acknowledges that the Host may need to maintain and repair the shared servers on which the Client Site is hosted and the Client agrees to cooperate with Ixxy Limited and/or the Host in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair.
6.3 Reporting: The Client undertakes to report any Defects, complaints, general technical problems, changes (actual and prospective) to the Client’s requirements hereunder or other matters that are relevant to Ixxy Limited’s Services hereunder as soon as reasonably convenient to the Client throughout the duration of this Agreement.
7.0 Intellectual Property
7.1 Client’s Ownership of Client IPR and Licence to Ixxy Limited: All rights including without limitation all intellectual property rights in and to any Client IPR shall be owned by and remain with the Client and/or its licensors. The Client hereby authorises Ixxy Limited to use, modify, adapt, edit, host, publish online and support the Client IPR in the proper course of the provision of the Services in accordance with the terms of and for the duration of this Agreement.
7.3 Ownership of Ixxy Limited IPR and Licence to Client: Ixxy Limited IPR belongs to and shall remain with Ixxy Limited and/or its licensors. Ixxy Limited hereby authorises the Client as from Acceptance on a worldwide, royalty-free, non-exclusive, non-transferable, non-sublicensable, revocable basis to use, in compliance with the terms of this Agreement, Ixxy Limited IPR in the Services, the Platform and any other product or material created or provided by Ixxy Limited hereunder or specified in the Order Confirmation.
7.4 Third Party IPR: Ixxy reserves the right to specify Third Party IPR for inclusion in the Services provided that Ixxy shall take full responsibility for obtaining the rights for the Client to use such Third Party IPR. If Ixxy desires to include in the Services any Third Party IPR that would require any change to the terms of this Agreement, including but not limited to any requirement that the Client abide by any additional license requirements or make any change to the Client Site terms and conditions, Ixxy shall notify the Client and appropriate provision shall be made to include such Third Party IPR in the Services.
7.5 Site Credit: The Client shall acknowledge Ixxy Limited’s proprietary rights by allowing Ixxy Limited to display a link on the Client Site to Ixxy Limited’s own website (www.ixxy.co.uk), such link being labelled as – “Powered by: Ixxy” or such other similar link as mutually agreed to by the Parties.
7.6 Public Relations: Unless otherwise agreed by the Parties, Ixxy Limited shall be free to publicly disclose the fact that the Client is its client for the Services and to use screenshots of the Client Site within its professional sales and marketing literature as examples of Ixxy Limited’s work, in accordance with honest trade practises and without implying any closer association between the Parties.
8.0 Payment Terms
8.1 Service Fees: The Parties have agreed to the set Service Fees as set out in the Order Confirmation.
8.2 Optional Services, Custom Requests and Additional Services: In addition to the set Service Fees, the Client shall also pay for any optional or additional Services that it requests or incurs beyond non-chargeable allocated Services during this Agreement, to be charged by Ixxy Limited on a time and materials basis according to its Professional Rate Card as specified in the Order Confirmation Agreement, unless otherwise agreed.
8.3 Invoicing and Payment Timetable: The Client shall pay the set Service Fees in accordance with the Payment Timetable set out in the Order Confirmation, subject to receipt of an appropriate invoice from Ixxy Limited. For any ad hoc Service Fees or disbursements payable under this Agreement, these shall be paid by the Client within thirty (30) days of invoice, unless otherwise agreed.
8.4 Service Fee Increases: Ixxy Limited shall be entitled to increase its set Service Fees specified in the Order Confirmation which may be amended on an annual basis and increased by no more than the UK Consumer Prices Index by giving the Client at least thirty (30) days’ written notice prior to such increases taking effect.
8.5 Standard Hosting charges: where Ixxy Limited can show that a third party supplier (e.g. the Host) has changed its fees, in which case Ixxy Limited may adjust its related Service Fees on written notice to the Client, but solely to the extent that the underlying costs to Ixxy Limited have changed; or where the Client’s usage of the relevant Services changes (e.g. increased requirements for hosting of the Client Site).
8.6 Additional Hosting Charges: Ixxy Limited will always ensure there is adequate bandwidth provided to ensure the Client Site uptime is not compromised should they exceed their hosting limit. Should a site exceed the contracted hosting limit then Ixxy will contact the client to agree a new hosting scale and advise of the related pro-rata charges. This process will be repeated if the Client’s Hosting limit is also exceeded at any time.
8.7 Expenses: In addition to the Service Fees, the Client shall reimburse all reasonable and documented out-of-pocket expenses properly incurred by Ixxy Limited in the course of providing the Services as approved by Client in advance. Ixxy Limited shall provide the Client with supporting documentation when expenses are invoiced. Ixxy Limited agrees to notify the Client of anticipated expenses on a regular on-going basis.
8.8 Taxes: The Client shall be responsible for the payment of any Taxes related to the execution and performance of this Agreement.
8.9 Late Payment: Prompt payment of Service Fees in compliance with this Agreement is an important condition of the provision of the Services. Ixxy Limited reserves its right to charge interest on late payments at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998, as may be amended or replaced at any time. In addition to any other rights under this Agreement, in the event that the Client is in breach of its payment obligations under this Agreement, Ixxy Limited shall be entitled to suspend the Services on fourteen (14) days’ written notice to the Client until the Client has remedied such breach or, where the fees payable for the Set Up Services are outstanding, Ixxy Limited may refuse to commence any provision of the Services.
9.0 Security and Data Protection
9.1 General Commitment to Data Protection: The Parties shall ensure that they effect and maintain appropriate technical and organisational measures to protect the Client Site against unauthorised processing of Client Data and against accidental loss, destruction, damage, alteration or disclosure of the same. Such measures will be appropriate to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction, damage, alteration or disclosure of the Client Data and the nature of the Client Data being protected. Both Parties shall comply with all applicable legislation and regulation concerning the use, processing, storage and disclosure of the Client Data. Ixxy Limited shall only process the Client Data to the extent permitted by or instructed by the Client pursuant to this Agreement.
9.2 UK/EU Data Protection Legislation: Any personal information we hold about you is stored and processed under our Data Protection Policy, in line with the “Data Protection Regulation or General Data Protection Regulation (GDPR)” and new UK legislation, the “Data Protection Act 2018”. Both Parties acknowledge that Ixxy Limited shall be the Data Processor and the Client shall be the Data Controller and potentially also Data Processor in relation to the Client Site, the Client Data and Customer data.
9.3 Requests for Information and Notifications: Ixxy Limited shall promptly notify the Client if it:Becomes aware of or has any reason to suspect that there has been any breach of data protection law or regulations affecting the Client Site or any other security incident relating to Client Data; or receives any request from an individual for access to their personal information as comprised within the Client Data; or receives any complaint in relation to the processing of such personal information. It is the responsibility of the client as Data Controller to notify the security authorities within seventy two (72) hours of receiving this notification from Ixxy.
9.5 Backup and Recovery of Client Data: As part of the Services, Ixxy is responsible for maintaining a regular backup of the Client Data, for an orderly and timely recovery of such Client Data in the event that the Services may be interrupted. See Section 2 - Service levels for more information on the different levels of cover provided.
9.6 Retention schedule : In accordance with Data Protection legislation and the Termination clause 14.0, no customer data (aside from emails) will be retained by Ixxy for longer than three (3) months when the client is no longer an active Ixxy customer. For active clients, all data will be retained for the duration of the contract.
10.1 Obligations of Confidence: The Parties undertake to each other that they will take all reasonable measures to maintain the confidentiality of each other’s Confidential Information, which will in no event be less than the measures it uses to maintain the confidentiality of its own Confidential Information, both for the duration of the commercial relationship and for two (2) years thereafter and shall not disclose it without prior written permission of the other Party.
10.2 Return or Destruction of Documents: Any documents containing Confidential Information given to the other Party during this Agreement must be returned or destroyed upon termination of this commercial relationship.
10.3 Staff and Subcontractors: The Parties shall ensure that their respective personnel and subcontractors comply with these confidentiality obligations.
10.4 Client data and Marketing: Ixxy stores information about their clients on various systems; Xero for accounts, Capsule CRM and Google Drive for account management, Codebase for issue management, Basecamp and Trello for project management, Google analytics for website analytics, Mailchimp, Slack for internal communication and email providers such as Gmail / iCloud for emails and contact details.
For system admin we use: Backupsy for backups, Github, CircleCI and Gitlab for source control and continuous integration. Sentry for error logging. The hosting providers Webfaction, Linode, Amazon, Bhost and Digital Ocean also hold client data. Domains and mail forwards are managed by 123Reg, Domain Monster, Go Daddy, LCN and Gandi. Cloudflare is used for managing DNS where necessary.
Some of these third party systems used by Ixxy store their data in the US. However, in these cases, the third parties have warrantied that they abide with EU GDPR Data Protection legislation with regards to the sharing of EU data with servers in the US.
Ixxy may contact you occasionally to inform you of products, services or industry developments that we feel may be of interest to you.
We will never lease, distribute or sell your personal information to any third party unless we receive explicit permission from you or the law requires us to do so.
Any personal information we hold about you is stored and processed, in line with UK Data Protection Law.
11.1 Authority: The Parties hereby represent and warrant that they have the right and authority to enter into this Agreement, to perform the obligations assigned to them and to grant the rights granted by them under this Agreement.
11.2 Performance: Ixxy Limited represents and warrants that it will perform the Services set out in the Order Confirmation in a professional and diligent manner in compliance with the terms of this Agreement.
11.3 Data Protection: The Parties represent and warrant that they shall at all times comply with their respective obligations in respect of data protection and security of the Client Site and data as contained in this Agreement.
11.4 Ixxy Limited Warranty: Ixxy Limited represents and warrants to the Client that the Platform and all Services (excluding Client IPR or other materials provide by the Client to Ixxy Limited under this Agreement for use in connection with the Services) shall perform in accordance with the Order Confirmation / Project Specification (including in relation to the specified Release) for 3 months after Acceptance and do not and will not infringe any Third Party IPR, nor shall they be unlawful, defamatory, obscene or offensive.
11.4.1 We may require you to update to a new Release, for example in the case of a technical, operational or security risk, provided that the same shall match any functionality specified in the Order Confirmation / Project Specification.
11.5 Client Warranty: The Client represents and warrants to Ixxy Limited that it shall abide by all laws and regulations applicable to the Client Site and shall not use the Client Site for any purposes that are unlawful, defamatory, obscene or offensive and that nothing in the Client IPR or other materials provided by the Client to Ixxy Limited under this Agreement for use in connection with the Services shall infringe any Third Party IPR.
11.6 Exclusion of Other or Implied Warranties: The express warranties set out in this clause are in lieu of any and all other express or implied warranties of any kind. The parties hereby disclaim and waive all such other warranties.
12.1. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
12.2. We will not be liable for any Defects, loss or damage that could have been avoided by following our advice including any failure to use or upgrade to a Release made known to you (including via an Order Confirmation / Project Specification) or offered to you or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
12.3. You acknowledge that unless otherwise expressly specified in an Order Confirmation / Project Specification neither the Services or other services or products made available to you have been developed to meet your individual requirements, and that they are provided as is and it is therefore your responsibility to ensure that the capabilities, facilities and functions meet your requirements.
12.4. Subject to the following, in no event shall the aggregate liability of any party to the other (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with the Services or this Agreement:
12.4.1. Exceed the value of the Service Fees or any other fess paid by you to Ixxy in respect of any one claim or series of related claims; and
12.4.2. Ixxy’s entire liability to you shall be subject to an overall limit of the Service Fees paid to it in the preceding 12 months before a claim arose; and
12.4.3. Neither party shall have any liability to the other for any loss of profit; loss of business or business interruption; loss of reputation or goodwill; loss, breach or corruption of data; loss of anticipated savings or loss of business opportunity; or any special, indirect or consequential loss or damage whatsoever.
12.5. Notwithstanding the above neither party excludes or limits any liability for any other liability to the extent the same cannot be excluded or limited by law.
13.0 Duration and Termination
13.1 Non-Fault Termination: The Client may terminate services with Ixxy Limited on provision of written notice of termination at least ninety (90) days prior to the required termination date.
Ixxy Limited may terminate services with the client on provision of written notice of termination at least one hundred and eighty (180) days prior to the required termination date.
13.2 Termination for Breach or Insolvency: Notwithstanding the above, either Party may terminate this Agreement (or part of it):
if the other Party is in material breach of the terms of this Agreement and (if capable of remedy) has failed to remedy such default with twenty eight (28) days of written notice from the other Party;
if the other Party becomes insolvent or is unable to pay its debts or if any order is made or resolution passed for its liquidation, winding-up or dissolution (other than a voluntary liquidation for the purpose of amalgamation or reconstruction) or if a receiver or manager or administrative receiver or administrator is appointed over any of its assets or if the other Party ceases or threatens to cease trading.
13.3 Reservation of Rights: These rights of termination are not exclusive and are in addition to any other rights and remedies provided by law or elsewhere in this Agreement. The termination or expiry of this Agreement shall be without prejudice to the rights of either Party which have accrued prior to termination or expiry.
13.4 Consequences of Termination: Subject to clause 14.0 below (Transition Services), on termination or expiration of this Agreement for any reason, (i) the Client shall cease to use and shall no longer be entitled to use any of the Services and/or Ixxy Limited IPR unless otherwise agreed in writing, (ii) Ixxy Limited shall cease to use and shall no longer be entitled to use any Client IPR, including any Client Data, and (iii) in the case of proper termination by the Client pursuant to clause 13.2 (Termination for Breach or Insolvency), Ixxy Limited shall refund to Client within fourteen (14) days of such termination or expiration, all amounts that were pre-paid in advance by Client to Ixxy Limited for which Ixxy Limited did not provide the applicable Services.
14.0 Transition Services on Termination
14.1 Training and Support: Except where this Agreement has been terminated by Ixxy Limited pursuant to clause 13.2 - Termination for Breach or Insolvency, Ixxy Limited shall, on request from the Client, upon termination of this Agreement and within the period of three (3) months thereafter provide any on-going training and other Services as the Client shall reasonably request from Ixxy Limited subject to the payment of Ixxy Limited’s reasonable charges for such Services according to Ixxy Limited’s Professional Rate Card as detailed on the Client Order Confirmation.
14.2 Delivery Up of Client Data file: Subject to the payment of all undisputed fees payable under this Agreement and there being no outstanding Client material contractual breaches, and further subject to the Client paying Ixxy Limited’s reasonable, mutually agreed-upon fees at its then current Professional Rate Card for complying with this clause Ixxy Limited shall, at any time during the Agreement including in the period before, during and for three (3) months after termination or expiry of this Agreement for whatever reason, provide all reasonable co-operation to the Client and any successor service provider of the Client so as to facilitate the Client’s use of alternative content management, e-commerce or booking software in place of the Services. Such service may include the delivery to the Client in electronic form reasonably acceptable to the Client of its main data file comprising the Client Data, so as to enable the Client to keep control over its business and to minimise disruption to it for any reason, which Ixxy Limited acknowledges may include the development by Client of a replacement service in parallel to the operation of the Client Site (where this request is made prior to termination) or to ensure the swift transition to a new service provider on termination or expiry.
14.3 Client Data After Termination: Ixxy Limited shall be entitled to delete all Client Data and any other data relating to or collected, processed or stored in the course of the Services and held on its systems after three (3) months from termination of this Agreement. Accordingly, any request by the Client to receive a copy of the Client Data shall be made before the expiry of such three (3) month period. Thereafter, the Client acknowledges and accepts that Client Data may not be retrievable by Ixxy Limited. It shall be the Client’s sole responsibility to notify Ixxy Limited in the event that it requires any Client Data or other data or materials to be retained by Ixxy Limited after such three month period for any reason and the Client acknowledges that additional charges may apply in respect of Ixxy Limited’s reasonable data storage requirements.
14.4 Notification of Claims: The Parties acknowledge and accept that any claims that they may have against each other under this Agreement shall be waived if not notified in writing to the other Party within three (3) months of termination of this Agreement.
14.5 Problems Beyond the Parties’ Control (Force Majeure): If either Party is affected by any Force Majeure event, it shall immediately notify the other Party of the nature and extent of the problem. Except with respect to delays or failures caused by the negligent act or omission of either Party, neither Party shall be liable to the other for delay in performance, or non-performance of any of its obligations in this Agreement when due to any Force Majeure of which it has notified the other and the time for performance of that obligation shall be extended accordingly. If such Force Majeure continues for more than four (4) weeks, the other Party shall be entitled to terminate this Agreement immediately on written notice to the other Party.
15.1 Restriction: Neither Party shall for the duration of this Agreement for twelve (12) months after its termination or expiry shall or shall seek to entice, solicit or engage any person who was an employee or consultant or otherwise engaged by the other Party in connection with this Agreement without prior written consent of the other Party; provided, however, that this provision shall not be construed as prohibiting either Party from hiring any such employee who applies for employment with the other Party where that other Party can show such hiring was the result solely of that employee or consultant either (i) by responding to a job posting of such Party published in a periodical or elsewhere or through any other normal hiring channels of such other Party, or (ii) being put into contact with the other Party solely as a result of any contact hereafter established by an independent third party.
16.1 No Partnership: Nothing in this Agreement shall be deemed to constitute a partnership between the Parties and neither Party shall do or allow to be done anything whereby it may be represented as the other’s partner.
16.2 Entire Agreement: This Agreement (including all Sections and documents referred to explicitly herein as being incorporated into its terms by reference (if any)) forms the sole and entire basis for the agreement between the Parties. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to this subject matter.
16.3 No Waiver: The waiver or failure of either Party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder.
16.4 Amendments: All amendments (if any) to this Agreement made after the Signature Date must be made in writing and signed by both Parties.
16.5 Exclusion of Third Party Rights: Nothing in this Agreement creates or shall be deemed to have created any third party beneficiary relationship with any third party, and nothing in this Agreement shall be construed to constitute or appoint either Party as the agent or representative of the other Party for any purpose whatsoever.
16.6 Assignment: This Agreement is personal to the Parties and neither Party shall assign the benefit or burden of this Agreement without the other’s prior written consent (not to be unreasonably withheld).
16.7 Severability: If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect this shall not affect the legality or validity or enforceability of any other provision.
16.8 Agreement Law and Jurisdiction: This Agreement shall be governed by and construed In accordance with the laws of the Agreement Law regard to its conflict of law provisions. Any disputes or claims relating to this Agreement shall be adjudicated in the courts of the Agreement Jurisdiction. Each Party hereby submits to the jurisdiction of the Agreement Jurisdiction and hereby agrees not to assert (i) that it is not personally subject to the jurisdiction of any such court, (ii) that the proceeding is in an inconvenient forum or (iii) that the venue of the proceeding is improper, PROVIDED THAT the Parties agree that, notwithstanding this clause and except in relation to a simple debt action, the Parties shall attempt to settle any claim or dispute arising out of or relating to this Agreement first by negotiation and then by formal non-binding mediation in the respondent’s own jurisdiction. Only where the respondent fails to participate in such negotiation or non-binding mediation or where the dispute has not been settled within seven (7) days of such mediation may the complainant Party be entitled to seek further legal remedies as may be appropriate.
16.9 No Exclusivity: Nothing in this Agreement limits the ability of either Party (i) to enter into other agreements with third parties with respect to arrangements similar in nature to or the same as those covered under this Agreement, or (ii) to provide goods or services that compete with the goods or services of the other Party.
16.10 Notices: Any notice provided pursuant to this Agreement will be in writing and will be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, five (5) days after deposit in the mail, postage prepaid, certified mail return receipt requested; (iii) if sent via overnight courier, upon receipt or: (iv) if sent by an email to Ixxy that has then been acknowledged by return. All notices pertaining to this Agreement will be addressed to the Parties at the respective addresses set out in the Order Confirmation. Either Party may change its address or its designated addressee by giving written notice to the other Party in accordance with the terms of this section.
16.11 Surviving Clauses After Termination: Clauses 10.0 and 15.0 shall survive termination of this Agreement.
16.12 Counterparts: This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.
17.0 Unilateral Amendment
Ixxy Limited reserves the right to amend the terms described herein at any time by reasonable notice including without limitation posting revised terms on the Ixxy website at the URL: www.ixxy.co.uk/terms-conditions, which amended terms and conditions shall be binding upon the Client.
Section 2: Service Levels
Client Site Hosting Services
From the Launch Date, Ixxy shall cause the Client Site to be hosted by the Host and subject to tolerable interruptions within standard industry parameters Available for the duration of this Agreement.
Ixxy shall inform the Client in advance of any prolonged Unavailability of the Client Site due to scheduled maintenance of the servers on which the Client Site is hosted if they occur within Business Hours, and shall use all reasonable efforts to ensure that such maintenance occurs outside Business Hours. Prolonged Unavailability in this context means downtime in excess of ten minutes at a time.
Ixxy shall endeavour to ensure that scheduled maintenance of the servers on which the Client Site is hosted does not exceed 8 hours per calendar month without prior agreement of the Client.
Monitoring and Responding to Serious Hosting Outages
Ixxy shall ensure that the server infrastructure is monitored on a 24 hours, 7 days per week, 365 days per year basis. Ixxy will react as soon as is practically possible to remedy any infrastructure failures affecting the ability to serve business critical web pages for the Client Site. Ixxy shall work in full cooperation with the Host from such time until the serious hosting outage has been remedied, keeping the Client regularly informed throughout.
Inclusive Hosting Services
The charges payable for the hosting Services as set out in the Order Confirmation are based on the agreed hosting requirements of the Client as further explained below and may change according to certain presumptions relating to the requirements and usage of the Client Site and will increase in the event that the Hosting Allowance is exceeded. Charges for hosting Services include the following:
- Daily database backup by Ixxy
- Daily Client generated data files backup by Ixxy
- Email monitoring of all errors and downtime – notifications on a 24 hours, 7 days per week, 365 days per year basis to Ixxy staff
Management of source code using a distributed version control system on different servers in various locations
- Maintenance and monitoring of systems by expert technical staff with a minimum of disruption
On shared servers only - Use of Linux cgroups to protect each account from other accounts' CPU and disk IO usage
The following system administration tasks will be charged for on a Time & materials basis where required:
Ad hoc application of web server and database patches
Ad hoc application of application patches including software updates
Regular application of Operating system security patches
Maintenance of systems by expert technical staff with a minimum of
Any actions required as a results of the errors discovered by the
monitoring of system errors and downtime
Technical Support and Maintenance
The Client will have direct telephone and email access to Ixxy’s technical support and maintenance Helpdesk during Business Hours. On receipt of a report/call to the Helpdesk, Ixxy will log and evaluate the Client’s report according to priority and escalate/communicate next steps as appropriate. Ixxy will not visit the Client’s premises as part of the Helpdesk service, unless agreed with the Client as the only action to fix a Defect.
Helpdesk Response Procedures
The initial response by Ixxy shall be to confirm to the Client that there is/isn’t a Defect and indicate when it is likely to be resolved. The resolution may require the complete co-operation or availability of the Client (where appropriate). Fixes are rolled out to the live Platform as soon as they have been through an internal testing phase and are safe to deploy without adding further risk. Non-Defect related support and software enhancements (where applicable), even where carried out by the support team, are classed as chargeable support.
Enhanced or Additional Support Services
Ixxy shall cooperate fully with the Client in the event that the Client requests additional support Services or alternative technical support service levels, subject to additional fees being agreed between the Parties.