Service Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply throughout all parts of this Agreement.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person’s legal and personal representatives, successors or permitted assigns].

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written includes faxes but not e-mail.

1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

2. USER SUBSCRIPTIONS

2.1 Subject to Customer purchasing the User Subscriptions in accordance with Clause 9, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, Xift hereby grants to Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for Customer’s internal business operations.

2.2 Customer undertakes that:

2.2.1 it shall accept and pay invoices which reflect the number of Authorised Users that Customer authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation.

2.2.3 it shall comply with the security and administrative regulations as notified from time to time by Xift in conjunction with registration, by email or in any other manner;

2.2.4 it shall be responsible for the activities conducted through its use of the Services and shall ensure compliance with national laws in conjunction therewith. All Data and other content uploaded to, transferred through, publicly posted, processed or entered into the Services by Customer shall be Customer’s sole responsibility, and such Data and other content shall not breach any laws or cause any liability or to be suffered by Xift;

2.2.5 it shall be responsible for monitoring its Authorised Users and their email accounts, and shall be responsible for ensuring that Data and any other content transferred to or handled within the Services which is processed by Customer and/or individuals invited by Customer to do so, does not:

a) infringe any third party rights;
b) violate any applicable law or regulation;
c) harm the reputation of a third party;
d) constitute a dissemination of a business secret or confidential information;
e) incite a third party to commit or participate in a crime;
f) constitute a threat, abuse or harassment.

2.2.6 it agrees to hold such necessary licences and consents from third parties as may be required in order to enable the Data to be processed and to enable the use of the Services.

2.3 Customer undertakes not to:

2.3.1 use the Services in order to gain material in violation of law, regulation or material which in any manner contravenes generally accepted practices; or

2.3.2 provide access to the Services to anyone other than individuals who qualify as Authorised Users and who are not independent parties; or

2.3.3 use or launch any automated system to send emails that access the Services in a manner that sends more request messages to Xift servers in a given period of time than a single human can reasonably produce in the same period by using a conventional online web browser. Customer agrees not to collect or harvest any personally identifiable information, including names, from the Services and not to use the Services to contact users other than those in Customer’s email accounts and who are personally known to Customer; or

2.3.4 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 Services and/or Software and/or Documentation (as applicable) in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

2.3.5 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

2.3.6 use the Services and/or Documentation to provide services to third parties; or

2.3.7 subject to Clause 19 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

2.3.8 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2.

2.4 Customer hereby indemnifies and keeps Xift indemnified against any and all claims, damages, loss, expenses, costs and disbursements suffered by Xift as a result of a breach by Customer (or by one of its employees, agents or independent contractors) of this Clause 2.

2.5 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Xift.

2.6 The rights provided under this Clause 2 are granted to Customer only, and shall not be considered granted to any subsidiary or holding company of Customer.

3. ADDITIONAL USER SUBSCRIPTIONS

3.1 Customer may, from time to time during any Subscription Term, add additional User Subscriptions and Xift shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.

3.2 Xift shall monitor all additional User Subscriptions and shall be entitled to invoice Customer from time to time according to the actual number of Authorised Users during the period to which the invoice relates.

4. SERVICES

4.1 Xift shall, during the Subscription Term, provide the Services and make available the Documentation to Customer on and subject to the terms of this Agreement

4.2 Xift shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

4.2.1 planned maintenance to be notified at least 48 hours in advance and wherever possible to be carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and

4.2.2 unscheduled maintenance performed wherever possible outside Normal Business Hours, provided that Xift has used reasonable endeavours to give Customer at least four (4) Normal Business Hours’ notice in advance.

4.3 Xift will, as part of the Services and at no additional cost to Customer, provide Customer with Xift’s standard customer support services during Normal Business Hours in accordance with the Service Levels outlined in Schedule 2 in effect at the time that the Services are provided. Xift may amend the Service Levels in its sole and absolute discretion from time to time. Customer may purchase enhanced support services separately at Xift’s then current rates.

4.4 The Services may be subject to other limitations, such as, for example (but without limitation) limits on disk storage space, on the number of calls that Customer is permitted to make to any Xift application programming interface, and such limitations will be specified from time to time by Xift in the Documentation.

4.5 Xift may make modifications to the Services or particular components of the Services from time to time and will use commercially reasonable efforts to notify Customer of any material modifications; Xift reserves the right to discontinue the Services (or any part) at the conclusion of a Customer’s Initial Subscription Term or renewed Subscription Term; Xift shall not be liable to Customer nor any third party for any modification of the Services as described in this Clause 4.

4.6 Customer understands that the technical processing and transmission of Customer’s emails and Data is fundamentally necessary to Customer’s use of the Services; Customer expressly consents to and authorises Xift interception and storage of emails and Data, and further acknowledges and accepts that

4.6.1 Customer’s electronic communications involving emails and Data will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Xift;

4.6.2 changes to Customer’s such electronic communications (including emails and Data) may occur (including but not limited to encryption and compression) in order to conform and adapt such data and material to the technical requirements of connecting networks or devices; and

4.6.3 electronic communications (including emails and Data) may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means.

4.7 Customer agrees that Xift is not responsible for any electronic communication or for Data of any kind which is delayed, lost, altered, intercepted or stored during the transmission of any Data whatsoever across networks not owned and/or operated by Xift, including, but not limited to, the Internet and Customer’s local network.

5. CUSTOMER DATA

5.1 Customer shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data.

5.2 In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Xift to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest record of such Customer Data maintained by Xift. Xift shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

5.3 Xift shall, in providing the Services, comply with its Privacy and Security Policy from time to time in force relating to the privacy and security of Customer Data, and such document may be amended from time to time by Xift in its sole discretion PROVIDED THAT in its Privacy and Security Policy or any change to it, Xift shall not be entitled to reduce to a material extent its obligations to Customer in relation to the Services, unless the change is required in order to conform to obligations required by law, legal compliance, or industry standards.

5.4 If Xift processes any personal data on Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that Customer shall be the data controller and Xift shall be a data processor and in any such case:

5.4.1 Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Customer and the Authorised Users are located in order to carry out the Services and Xift’s other obligations under this Agreement;

5.4.2 Customer shall ensure that Customer is entitled to transfer the relevant personal data to Xift so that Xift may lawfully use, process and transfer the personal data in accordance with this Agreement on Customer’s behalf;

5.4.3 Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

5.4.4 Xift shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by Customer from time to time; and

5.4.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

6. THIRD PARTY PROVIDERS

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

6.2 It is Customer’s responsibility to ensure the appropriateness functionality interworking and integration aspects of any third party software hardware or tools with Xift’s method of performance of its Services from time to time, and with Customer’s own system, working practices, and business activities; this remains the case whether or not the third party software tools are approved by or can be supplied by Xift.

6.3 Xift will supply details on written request of those Third Party Provided Services or tools which it can provide or recommend from time to time (but without prejudice to Clause 6.2).

7. XIFTS’S OBLIGATIONS

7.1 Xift undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2 The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Xift’s instructions, or modification or alteration of the Services by any party other than Xift or Xift’s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, Xift will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1. Notwithstanding the foregoing,Xift:

7.2.1 does not warrant that Customer’s use of the Services will be uninterrupted or errorfree; nor that the Services, Documentation and/or the information obtained by Customer through the Services will meet Customer’s requirements; and

7.2.2 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 Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.3 This Agreement shall not prevent Xift from entering into similar Agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

7.4 Xift warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

8. CUSTOMER’S OBLIGATIONS

8.1 Customer shall:

8.1.1 provide Xift with:
a) all necessary co-operation in relation to this Agreement; and
b) all necessary access to such information as may be required by Xift; in order to render the Services, including but not limited to Customer Data, security access information and configuration services;

8.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement and in particular its management and administration of its electronic messaging system; Customer also acknowledges and agrees that Xift’s responsibilities and liability do not extend to the internal management of Customer’s electronic messaging system and that Xift is merely a data-processor and does not control and is not responsible for the management or administration of Customer’s electronic messages and/or its data.

8.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as agreed by the parties, Xift may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement; and ensure that only Authorised Users shall use the Services;

8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Xift, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

8.1.6 ensure that its network and systems are at all times sufficient so as not to affect the performance of the Services (or any part) ; and

8.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Xift’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet;

9. CHARGES AND PAYMENT

9.1 Customer shall pay the Subscription Fees to Xift or its nominated agent for the User Subscriptions in accordance with this Clause 9 and Section B.

9.2 Customer shall on the Effective Date provide to Xift and / or its nominated agent valid, up-to-date and complete contact and billing details and thereafter maintain such with Xift;

9.3 If Xift has not received payment within fourteen (14) days after the due date, and without prejudice to any other rights and remedies of Xift:

9.3.1 Xift may, without liability to Customer, disable Customer’s password, account and access to all or part of the Services and Xift shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.3.2 interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of Xift’s bankers in the UK at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.4 All amounts and fees stated or referred to in this Agreement:

9.4.1 are, subject to Clause 13.4.2, non-cancellable and non-refundable;

9.4.2 are exclusive of value added tax, which shall be added to Xift’s invoice(s) at the appropriate rate.

9.5 Customer shall notify Xift if at any time the number of Users or any other chargeable units exceeds the Authorised Usage and Xift will increase the Authorised Usage accordingly. Additionally, Xift will monitor Customer’s actual usage of the Service and if the actual number of Users or any other chargeable units exceeds the Authorised Usage, Xift will increase the Authorised Usage accordingly. Xift will at its sole option raise additional invoices and/or make adjustments to the subsequent invoices to cover charges for the increase in Authorised Usage on a pro-rata basis for the remaining part of the current invoicing period.

10. PROPRIETARY RIGHTS

10.1 Customer acknowledges and agrees that Xift and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2 Xift confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

11. CONFIDENTIALITY

11.1 Xift may be given access to Confidential Information from Customer in order to perform its obligations under this Agreement. Confidential Information shall not be deemed to include information that:

11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

11.1.2 was in Xift’s lawful possession before the disclosure;

11.1.3 is lawfully disclosed to Xift by a third party without restriction on disclosure;

11.1.4 is independently developed by Xift, which independent development can be shown by written evidence; or

11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2 Xift shall hold Customer’s Confidential Information in confidence and, unless required by law, not make Customer’s Confidential Information available to any third party, or use Customer’s Confidential Information for any purpose other than the implementation or performance of this Agreement.

11.3 Xift shall take all reasonable steps to ensure that Customer’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

11.4 Xift shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5 Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Xift’s Confidential Information in relation to which the same obligations shall be entered into by Customer for the benefit of Xift as are entered into by Xift in Clauses 11.1 to 11.4, as if fully set out in this Clause.

11.6 Xift acknowledges that Customer Data is likely to constitute Confidential Information of Customer.

11.7 This Clause 11 shall survive termination of this Agreement, however arising.

12. INDEMNITY

12.1 Customer shall defend, indemnify and hold harmless Xift against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer’s use of the Services and/or Documentation, provided that:

12.1.1 Customer is given prompt notice of any such claim;

12.1.2 Xift provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer’s expense; and

12.1.3 Customer is given sole authority to defend or settle the claim.

12.2 Xift shall, subject to Clause 12.5, defend Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:

12.2.1 Xift is given prompt notice of any such claim;

12.2.2 Customer provides reasonable co-operation to Xift in the defence and settlement of such claim, at Xift’s expense; and

12.2.3 Xift is given sole authority to defend or settle the claim.

12.3 In the defence or settlement of any claim, Xift may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on [2] Business Days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.

12.4 In no event shall Xift, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on:

12.4.1 a modification of the Services or Documentation by anyone other than Xift; or

12.4.2 Customer’s use of the Services or Documentation in a manner contrary to the instructions given to Customer by Xift; or

12.4.3 Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Xift or any appropriate authority.

12.5 The foregoing states Customer’s sole and exclusive rights and remedies, and Xift’s (including Xift’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.

13. LIMITATION OF LIABILITY

13.1 Subject to the express provisions of this Agreement, this Clause 13 sets out the entire financial liability of Xift (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of:

13.1.1 any breach of this Agreement;

13.1.2 any use made by Customer of the Services and Documentation or any part of them; and

13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

13.2 Except as expressly and specifically provided in this Agreement:

13.2.1 Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use. Xift shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Xift by Customer in connection with the Services, or any actions taken by Xift at Customer’s direction;

13.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

13.2.3 the Services and the Documentation are provided to Customer on an “as is” basis.

13.3 Nothing in this Agreement excludes the liability of Xift:

13.3.1 for death or personal injury caused by Xift’s negligence; or

13.3.2 for fraud or fraudulent misrepresentation.

13.4 Subject to Clause 13.2 and Clause 13.3:

13.4.1 Xift shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

13.4.2 Xift’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

14. TERMINATION

14.1 This Agreement shall, unless otherwise terminated as provided in Clause 14, commence on the Effective Date and shall continue for the “Initial Subscription Term” and, thereafter shall be automatically renewed for successive “Renewal Periods”, unless either party notifies the other party of termination, in writing or by any other method permitted by Xift, before the beginning of the Notice Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or otherwise terminated in accordance with the provisions of this Agreement.

14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:

14.2.1 the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

14.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or

14.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

14.2.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or

14.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

14.2.6 the other party ceases, or threatens to cease, to trade; or

14.2.7 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

14.3 On termination of this Agreement for any reason:

14.3.1 all licences granted under this Agreement shall immediately terminate;

14.3.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

14.3.3 upon written request by Customer made within 30 days after the effective date of termination , Xift will seek to agree a transfer of data process with Customer; unless otherwise agreed by the parties, Xift shall use commercially reasonable efforts to deliver a copy of Customer Data on data storage media selected by Xift in the format in which it is stored by Xift at no cost to Customer; if Customer requests the return of Customer Data in any alternative format, or the transfer of data to a third party, then shall be subject to Xift’s Agreement and for which additional costs may apply. Subject to the terms of this clause, Xift shall have no continuing obligation to maintain or provide any of Customer Data; and shall be entitled on the expiration of 3 months from termination, unless legally prohibited, delete all of Customer Data on its systems or otherwise in its possession or under its control; and

14.3.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

15. FORCE MAJEURE

Xift shall have no liability to Customer 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 Xift or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that Customer is notified of such an event and its expected duration.

16. WAIVER

16.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

16.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

17. SEVERANCE

17.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18. ENTIRE AGREEMENT

18.1 This Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.

18.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

19. ASSIGNMENT

19.1 Customer shall not, without the prior written consent of Xift, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

19.2 Xift may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20. NO PARTNERSHIP OR AGENCY

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

21. THIRD PARTY RIGHTS

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

22. PRESS RELEASES

Customer agrees that Xift may create a case study and issue a press release within 180 days of execution of this Agreement concerning Customer’s purchase of the Services. Prior to the distribution of such case study and press release, Customer will be offered the opportunity to review such documents, and Xift will incorporate all revisions reasonably requested by Customer. Final versions of such documents will not be publicly distributed by Xift without Customer’s consent, which consent shall not be unreasonably withheld or delayed. Customer further consents to the use of Customer’s name in Xift marketing and sales materials.

23. NOTICES

23.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Agreement.

23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

24. GOVERNING LAW AND JURISDICTION

23.3 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

23.4 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).