1. STRUCTURE AND SCOPE OF THE AGREEMENT
1.1 This Agreement creates a contractual framework between the Account Holder and Xelfer under which:
- the Account Holder enters into the Terms so it may execute Orders in order to purchase Subscriptions, Solutions and related services and/or Deliverables; and
- Xelfer agrees the terms on which it shall provide such Subscriptions, Solutions and related services and/or Deliverables.
- If a Solution to be provided under an applicable Order has additional Solution-specific terms, each applicable Service Module shall form a part of the relevant Order, whether by directing the Account Holder to electronic copies of the Service Module or otherwise.
- In the event of any conflict or ambiguity, the order of precedence for the Agreement shall be as follows: (a) the applicable Order;
- the applicable Service Module;
- the body of these Terms;
- the appendices to these Terms;
- the Documentation; and
- any other document expressly referred to in these Terms.
- Under the Agreement, the Account Holder and Xelfer may enter into one or more Orders for the provision of Subscriptions, Solutions and related Deliverables.
- Subject to clause 1.6, during the Term the Account Holder may order the provision of Subscriptions and Solutions from Xelfer by any valid method (an “Order”).
- An Order shall, upon execution, become incorporated into, and subject to, the Agreement in respect of the Subscription, Solution and related Deliverables set out therein and shall incorporate any relevant Service Module terms. Once an Order is agreed by the parties, to be valid and effective it must be confirmed in writing and signed by each of the parties or otherwise accepted by the parties, unless Xelfer waives this requirement by providing the Account Holder with a written Order confirmation or issuing an invoice in respect of the applicable Order.
2. PROVISION OF SUBSCRIPTIONS
2.1 Xelfer will provide and the Account Holder will receive and have use of a Subscription in accordance with the Agreement. A Subscription shall:
- commence from the date set out in the relevant Order and continue for an initial term of twelve (12) months (“Initial Subscription Period”); and
- subject to clause 20.2, automatically renew for further twelve (12) month periods (“Renewed Subscription Period”) at the end of the Initial Subscription Period or a Renewed Subscription Period (as applicable), each a “Subscription Period”.
2.2 Xelfer shall use reasonable endeavours to make the Subscription and associated Xelfer Perform access available twenty-four (24) hours per day, seven (7) days per week, provided:
- such availability shall exclude any planned or unplanned maintenance on Xelfer Perform provided that Xelfer shall use reasonable endeavours to give the Account Holder prior notice of such unavailability;
- the Account Holder maintains a sufficiently fast and reliable internet connection and uses a browser environment which complies with Xelfer guidelines; and
- if access requires downloading additional browser plug-ins, Xelfer shall not be responsible for such third-party plug-ins nor ensuring that the Account Holder complies with any terms and conditions which may apply to them.
3. SUBSCRIPTION LIMIT, RETENTION POLICY AND RECONNECTION RULES
3.1 The Account Holder shall purchase a Subscription for a maximum number of Active Connections during each Subscription Period, which shall be as set out in an Order (“Subscription Limit”). The Active Connections will be determined by Xelfer as follows:
- a Connection may be disconnected at any time upon notice by the Profile User and/or Xelfer on their behalf;
- an Active Connection shall be automatically disconnected by Xelfer upon expiry of the relevant Retention Period; and
- each Active Connection shall count towards the Subscription Limit only once for the duration of the relevant Retention Period, even if the Active Connection is later disconnected for whatever reason; and
- the Subscription Limit does not mean concurrent Active Connections and as such once each Active Connection has been made the Account Holders Subscription Limit shall be reduced by one.
3.3 In the event that an Active Connection has been disconnected by the Profile User, the Account Holder shall be entitled to have continued access to such Active Connection’s Profile Snapshot for the remainder of the relevant Retention Period. For the avoidance of doubt, this right shall not apply to the extent that the Account Holder:
- does not have an active Subscription; and/or
- is the party which has actively deleted or disconnected the Active Connection; and/or
- has had their Subscription and/or any Solution or Deliverable suspended for whatever reason.
3.4 The Subscription shall automatically renew with the same Subscription Limit as the prior Subscription Period (including any increases and/or upgrades) at Xelfer’ standard rates. As set out in the below example, the following rules will apply to the Retention Period and any reconnections: Example: An Account Holder enters into an Initial Subscription Period on 1st January 2021. Profile User A becomes an Active Connection on 1 February 2021 with a Retention Period of 12 months (expiring on 31 January 2022). This new Active Connection will count towards the Account Holder’s Subscription
Limit at this stage, reducing the total number of Available Connections by one.
- neither party disconnects and the Account Holder has an ongoing active Subscription (i.e. enters into a Renewed Subscription Period following the end of the Initial Subscription Period), the Account Holder will have continued access to all of Profile User A’s Assessments and content until 31 January 2022 (the end of the Retention Period);
- the Account Holder disconnects between 1 February 2021 and 31
January 2022, the Account Holder will lose all access to Profile User A’s Assessments and content and will have no access to the Profile Snapshot;
- Profile User A disconnects before 31 January 2022, the Account Holder will not be able to see any new Assessments completed by Profile User A but can access the Profile Snapshot created by Xelfer on the disconnection date until 31 January 2022 (the end of the Retention Period);
- the Account Holder and Profile User A are disconnected and reconnect before 31 January 2022, the reconnection will not count towards the Account Holder’s Subscription Limit and will be considered a continuation of the existing Retention Period. This means that the Account Holder will be able to access all of Profile User A’s Assessments and content again until 31 January 2022 (the end of the Retention Period);
- the Account Holder and Profile User A are disconnected and reconnect after 31 January 2022, the reconnection with Profile User A will be treated as a new Active Connection which will count towards the Account Holder’s Subscription Limit and which has a Retention Period starting on the reconnection date.
- The Account Holder may increase its Subscription Limit at any time during a Subscription Period by submitting an Order to Xelfer. In such case, Xelfer’ standard Fees for the level of additional Subscription access being requested shall be payable by the Account Holder in accordance with clause 10.
Example: The Account Holder has purchased a Subscription Limit consisting of 1000 Active Connections at the beginning of a Subscription Period. Later on in the Subscription Period, the Account Holder requests an increased Subscription Limit to access 500 more Active Connections. To effect the increase, the Account Holder will need to pay Xelfer’ standard rates for a Subscription Limit of 500 Active Connections. After payment is received, the Account Holder will have a new Subscription Limit of 1500 Active Connection for the current Subscription Period and each subsequent period, unless it is further increased or decreased in accordance with whichever applies of clause 3.5 or 3.6.
- A Subscription Period shall in no circumstances be extended by virtue of the Account Holder increasing its Subscription Limit in accordance with clause 3.5(a).
The Account Holder may only decrease its Subscription Limit (“Decreased Limit”) by giving at least thirty (30) days’ written notice to Xelfer prior to the end of the relevant Subscription Period.