XIBO USER LICENCE & SUPPLY AGREEMENT
If you are ordering Xibo Solution this is a one-off purchase of digital content
We will make Xibo Solution available for download by you as soon as we accept your order. Unless you have chosen our 14 Day Demo, or unless Xibo Solution is faulty or misdescribed, you will have no right to change your mind or obtain a refund once the Xibo Solution is downloaded.
If you are ordering Xibo Cloud this is an ongoing service or subscription to receive digital content.
If you are ordering Goods or Services (as defined) then Xibo Signage's obligations are as set out below and subject to any Order confirmation and/or Statement of Work.
Where you are ordering a combination of Goods, Services, Xibo Cloud and Xibo Solution the relevant parts of this agreement shall apply accordingly.
PLEASE READ THESE TERMS CAREFULLY
YOU MUST ONLY ACCEPT THESE TERMS IF YOU AGREE TO THEM IN THEIR ENTIRETY. by accepting these terms you EXPRESSLY agree that:
This is a legal agreement ("Agreement") between you ("Licensee" or "you") and Xibo Signage Limited incorporated and registered in England and Wales with company number 07811749 whose registered office is at Curtis House, 34 Third Avenue, Hove, BN3 2PD, United Kingdom (Xibo Signage, us or we):
1. Definitions and interpretation
14 Day Demo: means a free 14 day trial of the Xibo Solution or Xibo Cloud after which period the trial may be converted into a full licence. If not converted to a full licence the Xibo Solution or Xibo Cloud will be automatically removed and any data in the CMS will be lost. The relevant terms of this Agreement will apply during any trial period.
AGPLv3: means the GNU Affero General Public License 3.0 details of which can be found at https://opensource.org/licenses/AGPL-3.0.
Acceptable use Policy: means the Xibo acceptable use policy as amended from time to time;
Applicable Laws and Regulations: means any laws or regulations that apply to the import, export or use of the Xibo Solution or Xibo Cloud in your or any relevant jurisdiction, including any technology control or import or export restrictions.
Commencement Date: means the date on which the Services are first supplied or such other date as may be specified in an Order or Statement of Work or agreed between the parties in writing.
Customer Portal: means the customer portal made available to you, or End Users, to manage account preferences and to maintain up to date contact information.
Distributor: means an authorised Xibo Signage distributor;
Documentation: means any documentation, including online documentation, Specification, Xibo Manual and Knowledge Base, provided by us in the performance of this Agreement or a EULA and as amended from time to time;
End User: means the licensee of the Xibo Solution or Xibo Cloud licence supplied by us under this Agreement or supplied by a Reseller;
EULA: means an End User Licence Licence (EULA) provided by Xibo Signage that an End User must agree to adhere to in order to use Xibo Solution or Xibo Cloud.
Expiry Date: means the date on which the Services shall no longer be supplied.
Fees: means the fees or charges payable for a Xibo Licence, Goods or Services.
Force Majeure: means an event or sequence of events beyond a party's reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, strikes, natural disaster or adverse weather conditions;
Goods: means the products ordered by and supplied to you;
Intellectual Property Rights (IPRs): means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, mask works, utility models, domain names and all similar rights and, in each case:
a) whether registered or not,
b) including any applications to protect or register such rights,
c) including all renewals and extensions of such rights or applications,
d) whether vested, contingent or future and
e) wherever existing;
Open Source: means the following components of the Xibo Solution:
a) Xibo Content Management System (CMS)
b) Xibo Message Relay (XMR)
c) Xibo Manual
d) Xibo Windows Player, and
e) Xibo Linux Player
Order: means any written order incorporating a quotation for the supply of Xibo Solution, Xibo Cloud or any related, complementary or other products and/or Goods or Services including by reference to a Statement of Work.
Release: means the release version of the Xibo Solution acquired by the End User (for example 1.8.X, or 1.9.x or 2.X.X) for which patches and updates shall be made available to the End User by us under this Agreement or a EULA.
Reseller: means an authorised Xibo Signage reseller or white label reseller;
Services: means the services to be supplied by Xibo Signage, including any Support Services, as set out in the applicable Order and/or Statement of Work.
Specification: means the specification for the Xibo Solution, Xibo Cloud or Goods as set out in the Documentation or made known to the End User and as amended from time to time.
Statement of Work: means the description or specification for the Services, as referenced in the applicable Order and provided in writing by Xibo Signage to you including, without limitation, any bespoke or generic design, development, modifications or enhancements to the Xibo Solution or Xibo Cloud or any related, complementary or other Goods or products and any Support Services.
Support Services: means the support services that Xibo Signage provides in respect of any Xibo Licence or any related, complementary or other Goods or products as further set out in a Statement of Work or as otherwise agreed in writing between the parties from time to time.
Term: means the period of time from the Commencement Date during which Xibo Signage shall provide the Xibo Solution, Xibo Cloud, Goods or Services as set out in this Agreement or applicable Order and/or Statement of Work or as otherwise agreed in writing between the parties.
Xibo Cloud: means the cloud hosted version of the Xibo Solution, comprising proprietary or open source code, components or materials, including:
a) Content Management System (Xibo CMS)
b) Xibo Player(s)
and associated display slots, urls, domains and other elements purchased by the End User as part of the solution, and the Documentation.
Xibo Player: means a proprietary version of the Xibo Player that is for use with a dedicated third party platform, such as Android, webOS and Tizen, among others.
Xibo Solution: means the Xibo Digital Signage Solution comprising proprietary or open source code, components or materials, including:
a) Xibo CMS
b) Xibo Message Relay (XMR)
c) Xibo Manual
d) Xibo Player(s)
that, among other features, powers digital signage networks on smart TV and display screens, and the Documentation.
In this Agreement, unless the context otherwise requires:
1.2.1 the singular includes the plural and vice versa;
1.2.2 references to subclauses, clauses or Schedules are to subclauses, clauses or Schedules of this Agreement;
1.2.3 references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
1.2.4 'including’ (or similar words) means including without limitation;
1.2.5 clause headings do not affect their interpretation; and
1.2.6 references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.
2 Grant and scope of licence, minor changes and Releases
2.1 Xibo Open Source Components
In consideration of you agreeing to abide by the terms of the AGPL 3.0 Xibo Signage shall license to you the Xibo Open Source Components.
2.2 Xibo Solution
In consideration of you agreeing to abide by the terms of this Agreement, we hereby grant to you a personal licence to use the Xibo Solution, except the Xibo Open Source Components, subject to the following conditions:
2.2.1 Exclusivity: the licence is non-exclusive;
2.2.2 Transferability: the licence is non-transferable and cannot be sublicensed;
2.2.3 Equipment: the Xibo Solution may only be used on the hardware and applications set out in the Specification;
2.2.4 Purpose: the Xibo Solution may only be used in connection with the Customer’s own purposes subject to other restrictions on use in clause 3 (Use of the Xibo Solution); and
2.2.5 Term: the licence extends to a single Release of the Xibo Solution which Xibo Signage shall maintain for a reasonable period.
2.3 Xibo Cloud
In consideration of you agreeing to abide by the terms of this Agreement, we hereby grant to you a personal licence to use the Xibo Cloud, and a single version of the Xibo Player (the cost of which is separate to a display slot licence), and associated elements as required by the End User, except the Xibo Open Source Components, subject to the following conditions:
2.3.1 Exclusivity: the licence is non-exclusive and extends to the hosting of a single display slot for use with a single Xibo Player;
2.3.2 Transferability: the licence is non-transferable and cannot be sublicensed;
2.3.3 Equipment: Xibo Signage shall host the Cloud Xibo Solution while the Xibo Player may only be used on the hardware and applications set out in the Specification;
2.3.4 Purpose: the Software may only be used in connection with the Customer’s own purposes subject to other restrictions on use in clause 3 (Use of the Solution); and
2.3.5 Term: on a monthly or annual licence, as agreed by Xibo Signage or its authorised Distributor or Reseller.
(2.2 and 2.3 shall be collectively referred to as a "Xibo Licence").
3. Use under a Xibo Licence
3.1. You shall not use or access the Xibo Solution or Xibo Cloud contrary to any restriction stated in this Agreement or in contravention of our Acceptable Use Policy.
3.2. With the exception of the Xibo Open Source Components you are not permitted to:
3.2.1. distribute, license, sell or otherwise deal in or encumber the Xibo Solution or Xibo Cloud;
3.2.2. translate, adapt, disassemble, reverse engineer or decompile the Xibo Solution (or any part of it), nor make any modifications, additions or enhancements to it;
3.2.3. combine, merge or otherwise permit the Xibo Solution (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it;
3.2.4. copy the Documentation, Xibo Solution (or any part of it), except where such copying is incidental to normal use or for such back-ups as are reasonably necessary for operational security, provided that you keep accurate and up-to-date records of such copying;
3.2.5. use the Xibo Solution or Xibo Cloud on behalf of or make it available to any third party or allow or permit a third party to do so, without the written consent of Xibo Signage.
3.3. We may update or require you to update the Xibo Player or Xibo Solution to a new Release, for example in the case of a technical, operational or security risk, provided that the same shall always match the Documentation – the Xibo Player or Xibo Solution will work with the current or previous Release of the operating systems as set out in the Specification (as it may be amended from time to time).
3.4. To guarantee optimal performance of Xibo Solution and Xibo Cloud it will be necessary for Xibo Signage to perform routine maintenance. Such maintenance may require us to take servers off-line, typically during off-peak hours. Where reasonably possible we will always aim to give advance notice of maintenance requiring the servers to be taken off-line.
3.5. We may access your Xibo CMS on demand using an administrator account in order to provide support for the Xibo Solution or Xibo Cloud. We may also access the Xibo CMS at other times as necessary to ensure smooth running of the same to you and other users. In exceptional circumstances, this access may necessitate making changes to the way your Xibo CMS is configured. Wherever possible we will always aim to give notice of what has been changed and the reason for such change.
3.6. Unless otherwise agreed with Xibo Signage your Xibo Licence extends only to:
3.6.1. Use on one central processing unit (CPU) if the Xibo Licence is a single-user licence or for single use; or
3.6.2. if the Xibo Licence is a multi-user or network licence, for the number of concurrent users agreed between you and us.
3.7. It is your responsibility to keep any password provided to you or chosen by you for use and access to the Xibo Solution of Xibo Cloud confidential. In order to ensure security this password should be changed on a regular basis and we recommend that you use a password that comprises a combination of letters, numbers and symbols to better prevent unauthorised access or brute force attacks, and that a two-factor authentication system is utilised. We cannot be liable for any data losses or security issues that arise as a result of a misplaced, hacked or stolen password.
3.8. You must ensure you comply with any Applicable Laws and Regulations applicable to your use of the Xibo Solution or Xibo Cloud.
4. Supply of Services
4.1. This clause, along with the other relevant terms of this Licence, set out the basis on which Xibo Signage shall supply Services to you.
4.2. An Order constitutes an offer by you to purchase Services from Xibo Signage in accordance with this Licence and as further set out in any Statement of Work.
4.3. In the event of a conflict between this Licence and the individual terms contained in the Order or Statement of Work the terms of this Licence shall prevail unless some or all of these terms are expressly disapplied by Xibo Signage in writing – and combined they shall constitute the entire agreement between you and Xibo Signage for the Services to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4.4. Any quotation given by the Xibo Signage for Services is only valid for a period of 30 days from its date of issue. Quotations are not binding on Xibo Signage until an Order has been accepted.
4.5. Xibo Signage shall:
4.5.1. provide the Services to you in accordance with the Order and Statement of Work from the Commencement Date for the Term or as otherwise agreed in writing.
4.5.2. use all reasonable endeavours to meet any performance dates for the Services specified in the Order or Statement of Work, but any such dates shall be estimates only and time shall not be of the essence for the performance of part of the Services. Xibo Signage shall also not be responsible for any delays caused or contributed to by the late provision of third party suppliers or sub-contractors.
4.5.3. have the right to make any changes to the Services which are necessary to comply with any applicable law, regulation or safety requirement, or which do not materially affect the nature or quality of the Services, and Xibo Signage shall notify you in any such event, and
4.5.4 use reasonable care and skill in providing the Services.
4.6. In consideration of Xibo Signage’s performance of the Services you shall:
4.6.1. provide all assistance, including any physical or network access, required to enable Xibo Signage or its sub-contractors to perform the Services;
4.6.2. pay the Fees as specified in the relevant Order or Statement of Work, and
4.6.3. you accept that the Services are personal to you and may not be assigned without the express written consent of Xibo Signage.
4.7. The Fees for Services shall be on a project or time and materials basis (for example, where additional or out of scope services are required):
4.7.1. if charged on a time and material basis, the Fees shall be calculated in accordance with Xibo Signage's standard daily rates, as set out in the Order or as made known to you from time to time, and
4.7.2. Xibo Signage shall be entitled to charge you for any expenses reasonably incurred by Xibo Signage or any sub-contractor engaged in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Xibo Signage for the performance of the Services, and for the cost of any materials.
4.8. Xibo Signage reserves the right to increase its standard daily rates by giving notice to you at any time before performance provided that any increase reflects any increase in the cost to Xibo Signage which is due to:
4.8.1. any factor beyond the control of Xibo Signage (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
4.8.2. any request by you to change the delivery date(s), quantities or types of Services ordered, or the Statement of Work; or
(a) any delay caused by any instructions of yours in respect of a failure by you to give Xibo Signage adequate or accurate information or instructions in respect of the Services, and
(b) Xibo Signage shall invoice you at the time and frequency specified in the Order or Statement of Work.
4.9. If Xibo Signage's performance of any aspect of the Services is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Customer Default), it shall:
4.9.1. be entitled to suspend performance of the Services until such time as the Customer Default has been remedied and to be relieved from performing its obligations to the extent that it has been delayed or prevented from carrying them out;
4.9.2. not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Xibo Signage's failure or delay to perform any of its obligations as set out in this clause 4, and
4.9.3. you shall reimburse Xibo Signage on written demand for any costs or losses sustained or incurred by Xibo Signage arising directly or indirectly from the Customer Default.
4.10. An agreement for the Supply of Services shall continue for the Term unless terminated:
4.10.1. in accordance with any notice period set out in the Order or Statement of Work or if no notice period is given on reasonable notice, or
4.10.2. if a party provides written notice of the occurrence of any material default and such default is not cured within a fourteen (14) day period commencing on the date of such written notice, and
4.10.3. on suspension or termination of this Licence for any reason each party shall pay to the other without any withholding or set-off all outstanding unpaid invoices in accordance with the payment terms herein.
4.11. Suspension, termination or expiry of this Licence shall not adversely affect any rights existing as of the effective date of termination and the accrued rights and remedies provided in this Licence are cumulative and in addition to any other rights or remedies available at law or equity, including the right to claim damages, in respect of any breach of a contract which existed at or before the date of suspension, termination or expiry of this Licence.
4.12. Further to clause 9, all Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Xibo Signage or its licensors and no transfer of any rights or ownership in the Intellectual Property Rights is implied.
4.13. You acknowledge that, in respect of any third party Intellectual Property Rights in the Services, any use of any such Intellectual Property Rights is conditional on Xibo Signage obtaining a written licence from the relevant licensor on such terms as will entitle Xibo Signage to licence such rights to you.
4.14. In the course of performing the Services, one party may disclose to the other information relating to its business affairs, products and software and both parties acknowledge and agree that all such information is the confidential, proprietary or trade secret information of the disclosing party (“Confidential Information”) and a recipient party will maintain the confidentiality of all Confidential Information which may be disclosed to it in the course of the Services, and which obligation of confidentiality shall survive the suspension, termination or expiry of this Licence.
5. Supply of Goods
5.1. This clause, along with the other relevant terms of this Agreement, sets out the basis on which Xibo Signage shall supply Goods to you.
5.2. An Order constitutes an offer by you to purchase Goods in accordance with the terms of this Agreement and shall only be deemed to be accepted when Xibo Signage issues a written confirmation of the Order.
5.3. Any images, description or advertising used by Xibo Signage in relation to the Goods are produced for the sole purpose of giving an approximate idea of the Goods referred to. They shall not form part of the Contract nor have any contractual force.
5.4. Any quotation given by the Xibo Signage for Goods is only valid for a period of 30 days from its date of issue. Quotations are not binding on Xibo Signage until an Order has been accepted.
5.5. The Goods are as described in the Documentation, which we reserve the right to amend from time to time including if required by any applicable statutory or regulatory requirements.
5.6. Delivery of the Goods shall be to the location set out in the Order and delivery shall be completed by Xibo Signage once the Goods are accepted by a third party carrier.
5.7. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Xibo Signage shall not be liable for any delay in delivery of the Goods or that is caused by a Force Majeure event, a failure to provide us with adequate or complete delivery instructions or any delay or failure by a third party carrier. If a third party carrier provides proof that the Goods have been accepted at the delivery address then they shall deemed to have been accepted.
5.8. We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
5.9. The risk in the Goods shall pass to you on completion of delivery by Xibo Signage.
5.10. Title to the Goods shall not pass to you until we receive payment in full for the Goods and any other products or Services we have supplied to you under an Order or applicable Statement of Work, in which case title to the Goods shall pass at the time of payment of all such sums.
5.11. Until title to the Goods has passed to you, you shall:
5.11.1. store the Goods separately from all other goods held by you so that they remain readily identifiable as Xibo Signage’s property;
5.11.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.11.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
5.11.4. notify Xibo Signage immediately if it becomes subject to any of the events listed in Clause 8.3 and Clause 12.
5.12. If before title to the Goods passes to you, you become subject to any of the events listed in Clause 8.3, then, without limiting any other right or remedy we may have:
5.12.1. your right to resell the Goods or use them in the ordinary course of business ceases immediately; and
5.12.2. we may at any time require you to deliver up all Goods in your possession that have not been resold, or irrevocably incorporated into another product and if you fail to do so promptly, enter any of your premises or the premises of any third party where the Goods are stored in order to recover them.
6.1. All Fees must be paid in advance, including any applicable import or export charges, unless Xibo Signage agrees to provide Goods or Services under a Statement of Work in which case the Fees must be paid as set out in the Order or Statement of Work.
6.2. Payment will be due on the basis of the Xibo Solution, Xibo Cloud, Goods or Services selected. Xibo Cloud may be paid for in advance on either a monthly or annual (12 month) basis or as otherwise agreed in writing with Xibo Signage.
6.3. For Xibo Cloud we will aim to send an automatic renewal reminder in advance and you will be automatically invoiced the relevant Fee 30 days ahead of the anniversary of the expiry of the Xibo Licence unless we or you have terminated the service, in accordance with clauses 12 or 13.
6.4. We reserve the right to change the Fee and/or nature of the relevant licence by giving reasonable written notice of any changes. No new Fee or licence terms will be imposed before the expire of any existing licence but may be applied on renewal.
6.5. Notice of Fee changes will be given by e-mail to the address given at the time of the first order.
6.6. All payments must be made in the currency indicated at the time of purchase or as set out in the relevant invoice and all payments due are inclusive of all applicable taxes except any applicable import or export charges.
6.7. You warrant that you are lawfully authorised to make payment using the credit or debit card or other payment facility you disclose to us.
6.8. In the event that you are not the named cardholder for any payments actually made you warrant that you and the actual cardholder accept the terms of this Agreement and shall have joint and severally liability for the Fee. You shall fully indemnify us in the event that the cardholder or issuer declines any Fee payment, including all costs incurred in administering your non-payment and obtaining payment of the Fee due.
6.10. Payments processed by third party payment processors are subject to those processor’s own terms and conditions of service, and we make no representations or warranties with respect to those terms.
6.11. All invoices or receipts will be sent via the email disclosed to us after a purchase or renewal transaction is completed.
6.12. Any overpayment or credit notes may at our sole discretion be used against any Fees due. Where the value of the overpayment or credit note is less than the Fee due the remainder of the balance shall be invoiced to you.
7.1. If you or your payment provider withdraw any payments made to us (via a bank, credit card or PayPal account – a "chargeback") you may be subject to an administration fee of £50 should we at our discretion deem the chargeback to be unfair. We reserve our right to recover from you any Fees due.
7.2. If a chargeback is made, we reserve the right to interrupt, suspend or cancel any live Xibo Licences. Such interruption, suspension or cancellation does not relieve you from any liability to pay any Fees overdue and payable to us.
8. Right of suspension
8.1. We may have to suspend the supply of Xibo Solution or Xibo Cloud, including to End Users, to:
8.1.1. deal with technical problems or make minor technical changes;
8.1.2. update Xibo Solution or Xibo Cloud to reflect changes in relevant laws and regulatory requirements;
8.2. We will not charge you for the Xibo Solution or Xibo Cloud during the period for which they are suspended.
8.3. In addition to the other rights and remedies set out in this Agreement Xibo Signage may, at its sole discretion, and with immediate effect by giving written notice to you, suspend any Xibo Licence and the supply of the Xibo Solution or Xibo Cloud and any Goods or Services if:
8.3.1. you fail to pay any amount due under this Agreement on the due date for payment, or within 7 days of being reminded that payment is due; or
8.3.2. you suffer or you become (or Xibo Signage reasonably believes you will become) subject to an insolvency or administration or insolvency, or administration-type event or are (or Xibo Signage reasonably believes you will become) unable to pay your debts as they fall due; or
8.3.3. you consistently or materially breach the terms of this Agreement.
8.4. On suspension or termination of this Agreement for any reason you shall immediately pay to Xibo Signage all outstanding Fees, including any unpaid invoices and any applicable interest including any fees accrued or due in relation to the period of suspension. The accrued rights and remedies of Xibo Signage at termination shall not be affected, including the right to claim damages in respect of any breach of a contract which existed at or before the date of suspension, termination or expiry of this Agreement or Xibo Licence.
8.5. Non-payment of a recurring invoice may be subject to a £20 administration charge. You are responsible for all Fees or charges owed or due under this Agreement and for all costs incurred in administering your non-payment and obtaining payment of any Fee due.
8.6. You are required to have a valid email address at all times, which must be stored in the Customer Portal, failure to do so may result in suspension of your Xibo Licence.
8.7. If you are a consumer: we will endeavour to contact you in advance to tell you we will be suspending supply of Xibo Solution or Xibo Cloud, unless the problem is urgent or an emergency. If we have to suspend Xibo Solution or Xibo Cloud for longer than 7 days in any 30 day period we will adjust the Fee so that you do not pay for Xibo Solution or Xibo Cloud while they are suspended. You may contact us to end the contract for Xibo Solution or Xibo Cloud if we suspend it, or tell you we are going to suspend it, in each case for a period of more than 7 days and we will refund any sums you have paid in advance in respect of the period after you end the contract.
9. Intellectual property rights
9.1. Except for a licence to use Xibo Open Source Components or Xibo Licence as expressly granted above, you shall not acquire in any way, any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Xibo Solution or Xibo Cloud or in any part of it, or in any copies of it and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement or Xibo Licence.
9.2. Xibo Signage in no way sells or grants to you ownership or a licence, where none is available for Xibo Signage to give, in any open source or non-proprietary code, components or materials, including the Xibo Open Source Components, comprising or incorporated into the Xibo Solution or Xibo Cloud or any Goods.
9.3. You acknowledge and understand that the Xibo Solution, Xibo Cloud and Goods supplied by Xibo Signage contain confidential and proprietary information and you shall not conceal, modify, remove, destroy or alter in any way any proprietary Intellectual Property Rights or trade marks of Xibo Signage, or our licensors, on or in the Xibo Solution or Xibo Cloud or Goods or any related materials or documentation except as permitted by this Agreement or the Xibo Licence.
9.4. You have no right to have access to Xibo Solution or Xibo Cloud in source code form other than as expressly provided in this Agreement or any Xibo Licence.
9.5. If you notify us in writing of any defect or fault in the Xibo Solution, Xibo Cloud or Goods as a result of which it fails to perform substantially, including in accordance with clause 10.1, or for any infringement of a third party’s Intellectual Property Rights, we will, at our sole option, either:
9.5.1. procure for you the right to continue using and possessing the Xibo Solution or Xibo Cloud; or
9.5.2. modify or replace the defective, faulty or infringing part of the Xibo Solution, Xibo Cloud or Goods without materially affecting the functionality as set out in this Agreement or the Xibo Licence so as to avoid the defect, fault, infringement or alleged infringement, provided that if, we having used reasonable endeavours, neither of the above can be accomplished on reasonable terms, we shall refund any Xibo Licence fees paid by you in respect of the Xibo Solution, Xibo Cloud or Goods.
9.6. Clause 9.5 shall be your sole remedy in respect of the Xibo Solution or Xibo Cloud being defective, faulty or infringing Intellectual Property Rights, and in respect of which you shall make available all the information that may be necessary to help us to identify and remedy the defect or fault, or infringement.
10.1. Xibo Signage warrants and represents that:
10.1.1. it has the right, power and authority to enter into this Agreement and grant to you the rights (if any) contemplated herein and to supply the Xibo Solution, Xibo Cloud or Goods and that each will on delivery;
(a) conform and perform according to the relevant Specification in all material respects, when used in the manner and equipment directed or recommended in the Documentation;
(b) be free from defects in workmanship and materials, and free from viruses and other malicious code when supplied;
(c) the Goods will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) neither the Xibo Solution, Xibo Cloud or Goods infringe the Intellectual Property Rights of any third party, and
the Documentation will provide you with adequate instructions to enable you to effectively use the Xibo Solution, Xibo Cloud or Goods;
10.2. The warranties (and representations) specified above are subject to you giving notice to Xibo Signage as soon as reasonably possible upon becoming aware of the breach of warranty (or representation) but in the case of a warranty (or representation) as to conformance and performance according to the Specification, such notice must be given within 30 days (Warranties).
10.3. We do not warrant or represent that the Xibo Solution or Xibo Cloud shall be:
10.3.1. uninterrupted or error free;
10.3.2. compatible with third party software or equipment, proprietary platform or open source code or solution, other than that described in the Documentation.
10.4. If you have acquired one or some of the Xibo Open Source Components then it or they shall be provided to you ‘as is’ and with no warranties whatsoever.
10.5. Any warranties given by us shall be subject to you using the Xibo Solution or Xibo Cloud, or any part of it, or Goods or Services in compliance with this Agreement or Xibo Licence and the Documentation, and we shall not be liable under this clause for, or required to remedy, any problem arising from:
10.5.1. a failure to install any update, patch, fix or improvement previously made available or provided by us;
10.5.2. any modification, alteration or repair made by anyone other than us without our express prior written consent; or
10.5.3. any defect or error wholly caused by any equipment or third-party software used in connection with the Xibo Solution, Xibo Cloud or Goods or any part thereof, other than that described in the Specification.
10.5.4 you making any further use of Xibo Solution, Xibo Cloud or Goods after giving notice in accordance with Clause 10.2;
10.5.5 you failing to follow our oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
10.5.6 the defect arising as a result of the Xibo Signage following any drawing, design or Specification supplied by you;
10.5.7 the defect arising as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
10.5.8 as a result of changes made to ensure that compliance with Applicable Laws and Regulations.
10.6. All other warranties and representations as to the Xibo Solution, Xibo Cloud, or Goods or Services, or any part thereof, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
10.7. If you are asked by us to return Goods these must be returned to our place of business (which may be discounted from future orders) and we may at our option, repair or replace defective Goods, or refund the price of the defective Goods in full.
10.8 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this Agreement.
11. Our responsibility for loss or damage suffered by you
11.1. 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.
11.2. We will not be liable for damage that you could have avoided by following our advice to apply an update 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.
11.3. If you use Xibo Solution or Xibo Cloud for any commercial, business or resale purpose we shall have no liability to you for any loss of profit, loss of business or business interruption, loss of reputation or goodwill, loss or corruption of data, loss of anticipated savings or loss of business opportunity.
11.4. You acknowledge that neither the Xibo Solution, Xibo Cloud or Goods have been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the capabilities, facilities and functions as described in the Documentation meet your requirements.
11.5. 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 this Licence or Xibo Agreement exceed:
11.5.1. the value of any Licence or Xibo Licence fee paid by you for the Xibo Solution or Xibo Cloud in respect of any one claim or series of related claims; and
11.5.2. provided that this shall be subject to an overall limit of the Fees paid in the preceding 12 months before the claim arose under this Agreement or Xibo Licence in respect of any and all claims, losses and damages arising under or in connection with this Agreement or Xibo Licence.
11.6. One party's liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement or Xibo Licence shall not extend to any special, indirect or consequential loss or damage whatsoever.
11.7. 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.
12. Our right to terminate
12.1. We may terminate this Agreement or Xibo Licence immediately by written notice to you if you commit a material or persistent breach which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so.
12.2. Upon termination for any reason:
12.2.1. all rights granted to you under this Agreement or Xibo Licence shall cease;
11.2.2. you must cease all activities authorised by this Licence or Xibo Licence, and
12.2.3. you must immediately delete or remove the Xibo Solution or relevant component of the Xibo Cloud from all equipment in your possession and immediately destroy or return to us (at our option) all copies then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
12.2.4 and you must safeguard and return any Goods over which we retain title.
13. Your right to terminate
13.1. If you are a consumer: You may have a right to terminate the contract because of something we have done or are going to do. If you are ending a contract for a reason set out at 13.1.1 to 13.1.5 below the contract will end immediately and we may refund you subject to any reasonable part-performance fee, or you may be entitled to compensation. The reasons are:
13.1.1. we have told you about an upcoming change to Xibo Solution or Xibo Cloud or Goods these terms which you do not agree to;
13.1.2. we have told you about an error in the price or description of Xibo Solution or Xibo Cloud or Goods you have ordered and you do not wish to proceed;
13.1.3. there is a risk that supply to you may be significantly delayed because of events outside our control, including Force Majeure;
13.1.4. we have suspended supply to you for technical reasons, or notify you we are going to suspend them for technical reasons, in each case for a period of more than 30 days; or
13.1.5. you have a legal right to end the contract because of something we have done wrong.
13.2. Consumer right to change your mind (Consumer Contracts Regulations 2013): For most products bought online you have a legal right to change your mind within 14 days and receive a refund please however note the restrictions in clause 13.1.3.
13.3. You do not have a right to change your mind in respect of:
13.3.1. digital products (i.e. Xibo Solution) after you have started to download or stream these, or
13.3.2. if we delivered the digital content to you immediately, and you agreed to this at the time of ordering, or
13.3.3. once products (i.e. Xibo Cloud) have been configured, or in the case of bespoke products (including Goods) once we have committed to produce these, even if the cancellation period is still running, and if you do cancel you must pay us for the products (or Goods) produced up until the time you tell us that you have changed your mind and any applicable notice period (see clause 13.1.4).
13.4. If you wish to terminate this Agreement for any other reason just contact us to let us know. A contract for Xibo Cloud will not end until 1 calendar month after the day on which you contact us. We will issue a pro rata credit note in respect of any advance payment you have made for services which will not be provided to you.
14. Communications between us
14.1. If you wish to contact us in writing, or if any condition in this Agreement or Xibo Licence requires you to give us notice in writing, you can contact us via email at firstname.lastname@example.org.
14.2. If we have to contact you we will do so by email or other form of electronic communication.
14.3. You should ensure that any xibosignage.com or xibo.org.uk email addresses are white listed in any email spam filtering.
14.4. You must ensure that you maintain a valid email address in relation to your obligations under this Agreement. This should be recorded in the Customer Portal. Failure to maintain a valid email address may result in suspension of your Xibo Licence as set out in clause 8.5.
15. How we may use your personal information
16.1. In respect of any loss or damage suffered or incurred by either party under this Agreement or Xibo Licence, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss or damage incurred.
17. Entire agreement
17.1. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement.
17.2. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
18. Force majeure
18.1. A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration, and uses reasonable endeavours to minimise the effects of that event.
18.2. If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than 60 days, the other party may, within a further 14 days terminate this Agreement or Xibo Licence on notice, otherwise this Agreement or Xibo Licence shall continue in full force and effect.
19. Other important terms
19.1. We may assign, subcontract or encumber any right or obligation under this Agreement or Xibo Licence, in whole or in part. You may not assign, subcontract or encumber any right or obligation under this Agreement or Xibo Licence, in whole or in part, without the prior written consent of Xibo Signage or except as expressly permitted in this Agreement.
19.2. No amendment or variation of this Agreement or Xibo Licence will be valid unless agreed in writing by an authorised signatory.
19.3. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
19.4. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
19.5. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any clauses are unlawful, the remaining clauses will remain in full force and effect.
19.6. Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
19.7. Any Fees or other payments due under this Agreement shall be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.
19.8. Provisions which by their terms or intent are to survive termination of this Agreement will do so.
19.9. The parties are independent and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
19.10. Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.
20. Governing law and jurisdiction
20.1. This Agreement is governed by the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to hear any dispute in relation to it (or part thereof), subject to any applicable statutory consumer regulations.