Service
The Service Terms;
I appreciate you utilizing Webgingout.com. The terms under which the xclusivelabelz organization/service is given are outlined in the current Terms of Service.
1 Our Contract
1.1 Our Agreement shall be interpreted in accordance with the terminology and standards set forth in the schedule.
1.2 These xclusivelabelz Terms of Service and the Data Processing Addendum shall constitute a separate agreement for each Order put into by the Customer (our Agreement);
2. Access to use
2.1 xclusivelabelz offers the Customer a non-exclusive, non-transferable, personal right to use the Services during the Subscription Period for the Permitted Purpose upon Order Acceptance and subject to the provisions of our Agreement.
2.2 The Customer understands that setting up access to the Services may take up to 2 Business Days following the Order Acceptance, and that use of the Services is always contingent upon the Customer adhering to our Agreement and the conditions outlined in our Agreement (including all minimum system requirements).
2.3 The Customer acknowledges that the Services do not include:
2.3.1 dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data); or
2.3.2 legal, accounting or other professional or regulated services and that, except as expressly stated in our Agreement, no assurance is given that the Services will comply with or satisfy any legal or regulatory obligation of any person.
2.4 Intellectual property rights are used to protect the Services. These IP rights are the property of and belong to xclusivelabelz and its licensors. All ownership rights in the Services remain with xclusivelabelz. The Customer acknowledges that any recommendations, comments, and suggestions it makes to Xclusivelabelz regarding the Services are non-confidential and that Xclusivelabelz shall own all rights to use and incorporate those recommendations, comments, and suggestions into the Services without having to pay the Customer anything.
Three permitted users
3.1 The Customer is responsible for ensuring that our Agreement is always followed and that only Authorized Users are using the Services. At all times while they have access to the Services, the Customer must make sure that Authorized Users are either employees or independent contractors of the Customer.
3.2 The Client is required to:
3.2.1 be held accountable for the Authorized Users’ actions and inactions in the same way as if they were their own;
3.2.2 The Customer shall not grant access to (or permit access by) anyone other than an Authorised User, and shall only grant Authorized Users access to the Services via the Customer’s authentication credentials provided by xclusivelabelz; and
3.2.3 Assure that each Authorized User is informed of xclusivelabelz’s Privacy Policy, is aware of the obligations and restrictions placed on the Customer under our Agreement, including all obligations and restrictions relating to xclusivelabelz’s Confidential Information, and complies with all such obligations and restrictions.
4. The Customer guarantees and represents that it, all Authorized Users, and anyone else acting on its or their behalf (including system administrators) will keep their passwords and access information private and not divulge them to anyone else (aside from those who need them to use the Services and have administration rights within the Customer organization).
4. 1 The Customer shall abide by all terms of our Agreement at all times (and shall ensure that Authorized Users abide by the same).
4.2 The Customer must invalidate any credentials that have been given to anybody who is not an Authorized User immediately and alert xclusivelabelz of the situation.
4.3 The Customer shall abide by all export-related laws, rules, and regulations that apply to the Services or the Customer Data (and shall ensure that all Authorized Users abide by the same).
4.4 Our Agreement’s clauses 4.2 to 4.6 (inclusive) will remain in effect even if it is terminated or expires.
5. Indemnification
5.1 The Customer is responsible for protecting, preserving, and defending xclusivelabelz from and against any losses, claims, damages, responsibility, costs (including attorney fees and other professional fees), and expenditures arising from the Customer’s violation of our Agreement.
5.1 The Customer is responsible for protecting, preserving, and defending xclusivelabelz from and against any losses, claims, damages, responsibility, costs (including attorney fees and other professional fees), and expenditures arising from the Customer’s violation of our Agreement.
7 Modifications to Services and Terms
7.1 xclusivelabelz may at its absolute discretion make, and notify the Customer of, updated versions of these terms or the Data Processing Addendum, from time to time by notifying the Customer of such update by e-mail (together with a copy of the update or a link to a copy of the update) or by any other reasonable means which xclusivelabelz elects (Update Notification).
7.2 The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of our Agreement from the date 10 Business Days’ after Update Notification of such revised document(s) (the Update) (or at such later date as xclusivelabelz may specify).
7.3 In the event that the Customer reasonably believes that any Update materially impacts it negatively in any manner it may by notice elect to terminate our Agreement provided it exercises such right prior to such Update taking effect pursuant to clause 7.2 on not less than 5 Business Days prior written notice and notifies at the time of exercising such right of the negative impact which has caused it to exercise this right. In the event of such termination the Customer shall receive a pro-rata refund of any pre-paid Subscription Charges corresponding to the unexpired portion of the Subscription Period.
7.4 The Customer acknowledges that xclusivelabelz shall be entitled to modify the features and functionality of the Services. Xclusivelabelz shall use reasonable endeavors to ensure that any such modification does not materially adversely affect the use of the relevant Service(s) by xclusivelabelz’s customers generally. Xclusivelabelz may, without limitation to the generality of this clause 7.4, establish new limits on the Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Service, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by the Update to the relevant impacted contractual documents. webgingout will comply with its related obligations in the Data Protection Addendum.
8 Charges and Payment
8.1 Unless otherwise agreed in advance, the Customer shall pay the Subscription Charges annually in advance.
8.2 The Subscription Charges are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law.
8.3 xclusivelabelz shall have the right to charge interest on overdue invoices at the rate of 4% per year above the base rate of HSBC bank, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment .
8.4 xclusivelabelz shall be entitled to increase the Subscription Charges for the Services at any time by notice to the Customer provided that such increase shall only take effect at the end of the current Subscription Period.
8.5 To the extent our Agreement terminates or expires (other than due to termination by the Customer under clauses 7.3 or 19.2 or 19.4) the Customer shall not be entitled to any refund or discount of Subscription Charges paid for any parts of any Subscription Period during which the Services cease to be provided.
8.6 At any time during the Subscription Period the Customer may upgrade its subscription to a higher-tier package including a greater chart allocation, by means of the contact page at webgingout.com Or calling the telephone number listed on that page. xclusivelabelz shall calculate the value of the upgraded subscription for the remainder of the Subscription Period on a pro-rata basis (the “Additional Fee”) and notify the Customer. Upon receipt of payment of the Additional Fee the Customer’s usage level shall be increased to the new subscription level.
9 Warranties
9.1 Subject to the remainder of this clause 9, xclusivelabelz warrants that the Services shall operate materially in accordance with its Description when used in accordance with our Agreement under normal use.
9.2 The Customer acknowledges that clause 9.1 does not apply to Free or Trial Services or to Support Services provided in connection with the same. Without prejudice to xclusivelabelz’s obligations under our Agreement in respect of Protected Data, Free or Trial Services and Support Services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law xclusivelabelz may withdraw access to Free or Trial Services at any time without any liability to the Customer.
9.3 The Services may be subject to delays, interruptions, errors or other problems resulting from use of xclusivelabelz, the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that xclusivelabelz shall have no liability for any such delays, interruptions, errors or other problems.
9.4 If there is a breach of any warranty in clause 9.1, xclusivelabelz shall at its option: use reasonable endeavors to repair or replace the impacted Services within a reasonable time or (whether or not it has first attempted to repair or replace the impacted Service) refund the Subscription Charges for the impacted Services which were otherwise payable for the period during which xclusivelabelz was in breach of any such warranty (provided such period is at least 2 consecutive days). To the maximum extent permitted by law, this clause 9.4 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 9.1.
9.5 The warranties in clause 9.1 are subject to the limitations set out in clause 16 and shall not apply to the extent that any error in the Services arises as a result of:
9.5.1 incorrect operation or use of the Services by the Customer, or any Authorized User (including any failure to follow the Description or failure to meet minimum specifications);
9.5.2 use of the Services other than for the purposes for which it is intended;
9.5.3 use of the Services with other software or services or on equipment with which it is incompatible (unless xclusivelabelz recommended or required the use of that other software or service or equipment in the Description);
9.5.4 any act by any third party (including hacking or the introduction of any virus or malicious code);
9.5.5 any modification of the Services (other than that undertaken by xclusivelabelz or at its direction); or
9.5.6 any breach of our Agreement by the Customer (or by any Authorized User).
9.6 The Customer acknowledges that no liability or obligation is accepted by xclusivelabelz (howsoever arising whether under contract, tort, in negligence or otherwise):
9.6.1 that the Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to xclusivelabelz;
9.6.2 that the operation of the Services shall not be subject to minor errors or defects; or
9.6.3 without prejudice to clause 3.5, that the Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the Description.
9.7 Other than as set out in this clause 9, and subject to clause 16.6, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
9.8 Any obligation of xclusivelabelz under our Agreement to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws within the United Kingdom as generally applicable to businesses and to providers of software as a service solutions. xclusivelabelz shall not have any obligation to ensure that the Services comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
10 Customer’s responsibilities
10.1 The Customer shall (and shall ensure all Authorized Users shall) at all times comply with the Acceptable Use Policy and all applicable laws relating to the use or receipt of the Service, including laws relating to privacy, data protection and use of systems and communications.
10.2 The Customer shall be responsible for maintaining a current xclusivelabelz account for the term of our Agreement, and acknowledges that xclusivelabelz shall not be responsible for any failure to provide the Services due to the Customer no longer having a current xclusivelabelzt account.
11 Customer Data
11.1 Customer Data shall at all times remain the property of the Customer or its licensors.
11.2 Except to the extent xclusivelabelz has direct obligations under data protection laws, the Customer acknowledges that xclusivelabelz has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Service) complies with all applicable laws and Intellectual Property Rights.
11.3 Except as otherwise expressly agreed in our Agreement, xclusivelabelz shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s business. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its, and its Authorized User’s needs) and extracts it from its xclusivelabelz account and the Services prior to the termination or expiry of our Agreement or the cessation or suspension of the Services.
11.4 xclusivelabelz routinely undertakes regular backups of the Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make xclusivelabelz responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, xclusivelabelz shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
11.5 Unless otherwise set out in the Order, or subsequently agreed by the parties in writing, the Customer hereby instructs that xclusivelabelz shall within 60 days of the earlier of the end of the provision of the Services (or any part) relating to the processing of the Customer Data securely dispose of such Customer Data processed in relation to the Services (and all existing copies of it) except to the extent that any Applicable Law (as defined in the Data Protection Addendum) requires xclusivelabelz to store such Customer Data. xclusivelabelz shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Customer Data undertaken in accordance with our Agreement.
12 Confidentiality and security of Customer Data
12.1 xclusivelabelz shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with our Agreement, disclose or copy the Customer Data other than as necessary for the performance of the Services or its express rights and obligations under our Agreement.
12.2 xclusivelabelz shall implement technical and organizational security measures in accordance with the Data Protection Addendum .
12.3 xclusivelabelz
12.3.1 undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under our Agreement or as otherwise reasonably necessary for the provision or receipt of the Services, and
12.3.2 shall be responsible to the Customer for any acts or omissions of any of the persons referred to in clause 12.3.1 in respect of the confidentiality and security of the Customer Data as if they were xclusivelabelz’s own.
12.4 The provisions of this clause 12 shall not apply to information which:
12.4.1 is or comes into the public domain through no fault of xclusivelabelz, its officers, employees, agents or contractors;
12.4.2 is lawfully received by xclusivelabelz from a third party free of any obligation of confidence at the time of its disclosure;
12.4.3 is independently developed by xclusivelabelz (or any person acting on its or their behalf), without access to or use of such information; or
12.4.4 is required by law, by court or governmental or regulatory order to be disclosed,
provided that clauses 12.4.1 to 12.4.3 (inclusive) shall not apply to Protected Data (as defined in the Data Protection Addendum).
12.5 This clause 12 shall survive the termination or expiry of our Agreement for a period of 5 years.
12.6 To the extent any Customer Data is Protected Data, xclusivelabelz shall ensure that such Customer Data may be disclosed or used only to the extent such disclosure or use does not conflict with any of webgingout’s obligations under the Data Protection Addendum. Clauses 12.1 to 12.5 (inclusive) are subject to this clause 12.6.
13 Publicity
13.1 The Customer expressly grants to xclusivelabelz a royalty-free, sub-licensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce and publish the Customer’s name, logo or any other identifying words, logos or marks used by and/or associated with the Customer to identify the Customer (“Customer Marks”) for use in providing the Services and for the purpose of identifying the Customer as xclusivelabelz’s customer on xclusivelabelz’s website and its sales and marketing materials. Any further use of the Customer Marks by xclusivelabelz shall be subject to the Customer’s prior consent. xclusivelabelz acknowledges that all goodwill generated through xclusivelabelz’s use of any of the Customer Marks will accrue to the Customer’s benefit and xclusivelabelz hereby assigns and will assign to the Customer any and all goodwill generated through xclusivelabelz’s use of any of the Customer Marks, without payment or other consideration of any kind to xclusivelabelz.
13.2 Without prejudice to clause 13.1, except to the extent that they constitute Confidential Information of the Customer, the Customer hereby authorizes xclusivelabelz to include details of xclusivelabelz’s relationship with the Customer in any training, marketing or promotional material produced by it or on its behalf in relation to xclusivelabelz or the Services.
14 xclusivelabelz’s Confidential Information
14.1 The Customer shall maintain the confidentiality of xclusivelabelz’s Confidential Information and shall not without the prior written consent of xclusivelabelz, disclose, copy or modify xclusivelabelz’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under our Agreement.
14.2 The Customer undertakes to:
14.2.1 disclose xclusivelabelz’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under our Agreement;
14.2.2 procure that such persons are made aware of and agree in writing to observe the obligations in this clause 14; and
14.2.3 be responsible for the acts and omissions of those third parties referred to in this clause 14.2 as if they were the Customer’s own acts or omissions.
14.3 The Customer shall give notice to xclusivelabelz of any unauthorized use, disclosure, theft or loss of ’s xclusivelabelz Confidential Information immediately upon becoming aware of the same.
14.4 The provisions of this clause 14 shall not apply to information which:
14.4.1 is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
14.4.2 is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
14.4.3 is independently developed by the Customer, without access to or use of such information; or
14.4.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies xclusivelabelz at the earliest opportunity before making any disclosure.
14.5 This clause 14 shall survive the termination or expiry of our Agreement for a period of 5 years.
15 Relief
To the maximum extent permitted by law, xclusivelabelz shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of our Agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Relief Event.
16 Limitation of liability
16.1 The extent of xclusivelabelz’s liability under or in connection with our Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 16.
16.2 Subject to clause 16.6, xclusivelabelz’s aggregate liability in respect of each individual Free or Trial Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with our Agreement) shall not exceed £50.00 (fifty pounds sterling).
16.3 Subject to clause 16.6, xclusivelabelz’s total aggregate liability howsoever arising under or in connection with our Agreement shall not exceed an amount equal to the Subscription Charges paid to xclusivelabelz in the 12-month period immediately preceding the first incident giving rise to any claim under our Agreement.
16.4 Subject to clause 16.6, xclusivelabelz shall not be liable for consequential, indirect or special losses.
16.5 Subject to clause 16.2 and 16.6, xclusivelabelz shall not be liable for any of the following (whether direct or indirect):
16.5.1 loss of profit;
16.5.2 destruction, loss of use or corruption of data;
16.5.3 loss or corruption of software or systems;
16.5.4 loss or damage to equipment;
16.5.5 loss of use;
16.5.6 loss of production;
16.5.7 loss of contract;
16.5.8 loss of opportunity;
16.5.9 loss of savings, discount or rebate (whether actual or anticipated); and/or
16.5.10 harm to reputation or loss of goodwill.
16.6 Notwithstanding any other provision of our Agreement, xclusivelabelz’s liability shall not be limited in any way in respect of the following:
16.6.1 death or personal injury caused by negligence;
16.6.2 fraud or fraudulent misrepresentation; or
16.6.3 any other losses which cannot be excluded or limited by applicable law.
16.7 This clause 16 shall survive the termination or expiry of our Agreement.
17 Suspension
17.1 xclusivelabelz may suspend access to the Services to all or some of the Authorized Users if:
17.1.1 xclusivelabelz suspects that there has been any misuse of the Services or breach of our Agreement; or
17.1.2 the Customer fails to pay any sums due to xclusivelabelz by the due date for payment.
17.2 Where the reason for the suspension is suspected misuse of the Services or breach of our Agreement, without prejudice to its rights under clause 19, xclusivelabelz will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
17.3 In relation to suspensions under clause 17.1.2, access to the Services will be restored promptly after xclusivelabelz receives payment in full and cleared funds.
17.4 Subscription Charges shall remain payable during any period of suspension notwithstanding that the Customer, or some or all of the Authorized Users may not have access to the Services.
18 Renewals
18.1 Subject to clause 18.2, on expiry of the Subscription Period, the Subscription Period shall continue and automatically renew for a further period of twelve months (first Renewal Date) and thereafter renew for a further period of twelve months on each anniversary of the first Renewal Date (each of the first Renewal Date and each such anniversary being a Renewal Date). This clause 18.1 shall not apply in respect of Free or Trial Services (which shall not renew).
18.2 If either party wishes for the Subscription Period to expire on the next Renewal Date, it may cause the Services to expire on that Renewal Date by notice provided such notice is served by email at least 14 days prior to that Renewal Date. If notice is not served within the timeframes set out in this clause 18.2, the Services shall renew at the next Renewal Date in accordance with clause 18.1.
19 Term and termination
19.1 Our Agreement shall come into force on Order Acceptance and, unless terminated earlier in accordance with its terms, shall continue for the duration of the Subscription Period after which it shall automatically expire.
19.2 Either party may terminate our Agreement immediately at any time by giving notice in writing to the other party if:
19.2.1 the other party commits a material breach of our Agreement and such breach is not remediable;
19.2.2 the other party commits a material breach of our Agreement which is not remedied within 10 Business Days of receiving written notice of such breach; or
19.2.3 the other party has failed to pay any amount due under our Agreement on the due date and such amount remains unpaid within 5 Business Days after the other party has received notification that the payment is overdue.
19.3 xclusivelabelz may terminate or suspend the provision of Free or Trial Services (and all related Support Services) at any time with or without notice.
19.4 Either party may terminate our Agreement in the event that xclusivelabelz ceases to have access to the xclusivelabelzIn the event of such termination, the Customer shall be entitled to a pro-rata refund of any pre-paid Subscription corresponding to the unexpired portion of the Subscription Period.
20 Consequences of termination
20.1 Immediately on termination or expiry of our Agreement (for any reason), the rights granted by xclusivelabelz under our Agreement shall terminate and the Customer shall (and shall procure that each Authorized User shall) stop using the Services.
20.2 Termination or expiry of our Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of our Agreement that is expressly or by implication intended to continue beyond termination.
Governing law and Jurisdiction
Our Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England, Wales, or united state, shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, our Agreement, its subject matter or formation (including non-contractual disputes or claims).
2 In our Agreement, unless otherwise stated:
2.1 the clause, paragraph, schedule or other headings in our Agreement are included for convenience only and shall have no effect on interpretation;
2.2 xclusivelabelz and the Customer are together the parties and each a party, and a reference to a ‘party’ includes that party’s successors and permitted assigns;
2.3 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
2.4 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
2.5 a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made as at the date of our Agreement under that legislation; and
2.6 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, or united state be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.