The definitions and rules of interpretation in this clause apply in these Conditions.
"Authorised Users": those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
"Business Day": a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"Conditions": these terms and conditions as amended from time to time in accordance with clause 14.3.
"Contract": the contract between Dextcloud and the Customer for the supply of Services in accordance with the Payment Schedule and these Conditions.
"Customer": the person or firm identified in the Payment Schedule and who purchases Services from Dextcloud.
"Customer Data": the data inputted by the Customer, Authorised Users, or Dextcloud on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
"Data Protection Legislation": 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) as amended together with 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).
"Dextcloud": Dextcloud Limited registered in England and Wales with company number 11035143 with registered office at 930 High Road, London, N12 9RT.
"Documentation": the document made available to the Customer by Dextcloud online via https://app.dextcloud.com/doc or such other web address notified by Dextcloud to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
"Effective Date": the date in clause 2.2.
"Initial Licence Term": the initial term of the Contract as set out in the Payment Schedule.
"Licence Fees": the licence fees payable by the Customer to Dextcloud for the Authorised Users to get access to and use of the Services.
"Licence Term": has the meaning given in clause 13.1 (being the Initial Licence Term together with any subsequent Renewal Periods).
"Normal Business Hours": 8.00 am to 6.00 pm local UK time, each Business Day.
"Payment Schedule": the Customer's order for Services as set out in Dextcloud's standard form payment schedule.
"Renewal Period": the period described in clause 13.1.
"Services": the online services provided by Dextcloud to the Customer under the Contract via www.dextcloud.com or any other website notified to the Customer by Dextcloud from time to time, as more particularly described in the Documentation.
"Software": the online software applications provided by Dextcloud as part of the Services.
"Support Services Policy": Dextcloud's policy for providing support in relation to the Services as made available at www.dextcloud.com or such other website address as may be notified to the Customer from time to time.
"Virus": any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including , include , in particular , for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes fax and email.
The Payment Schedule constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
The Payment Schedule shall be deemed to be accepted on whichever is the earliest of:
the signing by Dextcloud of the Payment Schedule or Dextcloud issues written acceptance of the Payment Schedule;
the use of the Services by the Customer in the normal course of business;
(the "Effective Date").
Dextcloud shall, during the Licence Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Contract.
Subject to the Customer paying the Licence Fee in accordance with clause 8.1, the restrictions set out in this clause 3 and the other terms and conditions of the Contract, Dextcloud hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Licence Term solely for the Customer's internal business operations.
Dextcloud shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
unscheduled maintenance performed outside Normal Business Hours, provided that Dextcloud has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
Dextcloud will, as part of the Services and in consideration of the support fees set out in the Payment Schedule (if any), provide the Customer with Dextcloud's standard customer support services during Normal Business Hours in accordance with Dextcloud's Support Services Policy in effect at the time that the Services are provided. Dextcloud may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Dextcloud's then current rates.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property;
and Dextcloud reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
The Customer 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 the Contract:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
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 Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
use the Services and/or Documentation to provide services to third parties; or
subject to clause 14.8, 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
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; or
introduce or permit the introduction of, any Virus into Dextcloud's network and information systems.
The 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 Dextcloud.
The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Dextcloud shall be for Dextcloud to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Dextcloud. Dextcloud shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
The parties acknowledge that if Dextcloud processes any personal data as part of the Services, the Customer is the data controller and Dextcloud is the data processor for the purposes of the Data Protection Legislation.
Without prejudice to the generality of clause 4.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Dextcloud for the duration and purposes of the Contract so that Dextcloud may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer's behalf.
Dextcloud undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Dextcloud's instructions, or modification or alteration of the Services by any party other than Dextcloud or Dextcloud's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Dextcloud will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 5.1.
does not warrant that:
the Customer's use of the Services will be uninterrupted or error-free; or
that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements.
is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
The Contract shall not prevent Dextcloud 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 the Contract.
Dextcloud warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
The Customer shall:
provide Dextcloud with:
all necessary co-operation in relation to the Contract; and
all necessary access to such information as may be required by Dextcloud;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Dextcloud may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Contract and shall be responsible for any Authorised User's breach of the Contract;
obtain and shall maintain all necessary licences, consents, and permissions necessary for Dextcloud, its contractors and agents to perform their obligations under the Contract, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by Dextcloud from time to time; and
be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Dextcloud's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
The Customer shall pay the Licence Fees and the support fees in accordance with this clause and the Payment Schedule.
The Customer shall on the Effective Date provide to Dextcloud valid, up-to-date and complete credit card details or approved purchase order information acceptable to Dextcloud and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
its credit card details to Dextcloud, the Customer hereby authorises Dextcloud to bill such credit card:
on the Effective Date for the Licence Fees payable in respect of the Initial Licence Term; and
subject to clause 13.1, on each anniversary of the Effective Date for the Licence Fees payable in respect of the next Renewal Period;
its approved purchase order information to Dextcloud, Dextcloud shall invoice the Customer:
on the Effective Date for the Licence Fees payable in respect of the Initial Licence Term; and
subject to clause 13.1, at least 30 days prior to each anniversary of the Effective Date for the Licence Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
If Dextcloud has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Dextcloud:
Dextcloud may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Dextcloud shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Dextcloud's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in the Contract:
shall be payable in pounds sterling;
are, subject to clause 12.3.2, non-cancellable and non-refundable;
are exclusive of value added tax, which shall be added to Dextcloud's invoice(s) at the appropriate rate.
If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, Dextcloud shall charge the Customer, and the Customer shall pay, Dextcloud's then current excess data storage fees. Dextcloud's excess data storage fees current as at the Effective Date are set out in the Payment Schedule.
Dextcloud shall be entitled to increase the Licence Fees, the support fees payable pursuant to clause 3.4 and/or the excess storage fees payable pursuant to clause 8.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer and Payment Schedule shall be deemed to have been amended accordingly.
The Customer acknowledges and agrees that Dextcloud and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, the Contract does not grant the Customer 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 Services or the Documentation.
Dextcloud 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 the Contract.
Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.4.
The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Dextcloud's Confidential Information.
Dextcloud acknowledges that the Customer Data is the confidential information of the Customer.
Each party may disclose the other party's confidential information:
to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
The Customer shall defend, indemnify and hold harmless Dextcloud against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
the Customer is given prompt notice of any such claim;
Dextcloud provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
the Customer is given sole authority to defend or settle the claim.
Dextcloud shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with the Contract infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
Dextcloud is given prompt notice of any such claim;
the Customer provides reasonable co-operation to Dextcloud in the defence and settlement of such claim, at Dextcloud's expense; and
Dextcloud is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, Dextcloud may procure the right for the 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 the Contract on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall Dextcloud, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a modification of the Services or Documentation by anyone other than Dextcloud; or
the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Dextcloud; or
the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Dextcloud or any appropriate authority.
The foregoing states the Customer's sole and exclusive rights and remedies, and Dextcloud's (including Dextcloud's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Except as expressly and specifically provided in the Contract:
the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Dextcloud shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Dextcloud by the Customer in connection with the Services, or any actions taken by Dextcloud at the Customer's direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
the Services and the Documentation are provided to the Customer on an "as is" basis.
Nothing in the Contract excludes the liability of Dextcloud:
for death or personal injury caused by Dextcloud's negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 12.1 and clause 12.2:
Dextcloud shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
Dextcloud's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Licence Fees paid during the 12 months immediately preceding the date on which the claim arose.
The Contract shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Licence Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months or such other period specified in the Payment Schedule (each a "Renewal Period"), unless:
either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Licence Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Licence Term or Renewal Period; or
otherwise terminated in accordance with the provisions of the Contract;
and the Initial Licence Term together with any subsequent Renewal Periods shall constitute the "Licence Term";.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
On termination of the Contract for any reason:
all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
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;
Dextcloud may destroy or otherwise dispose of any of the Customer Data in its possession unless Dextcloud receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Dextcloud shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Dextcloud in returning or disposing of Customer Data; and
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
Force Majeure. Dextcloud shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Dextcloud 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 the Customer is notified of such an event and its expected duration.
Conflict. If there is an inconsistency between any of the provisions in the main body of the Contract and the Payment Schedule, the provisions of the Payment Schedule shall prevail in respect of the sums due and the timing of payments, otherwise these Conditions shall prevail.
Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies. Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under clause 14.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
Assignment. The Customer shall not, without the prior written consent of Dextcloud, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. Dextcloud 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 the Contract.
No partnership or agency. Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Third party rights. The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under the Contract 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 the Contract, 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 the Contract.
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).
Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).