TERMS AND CONDITIONS OF BUSINESS
1. INTERPRETATION
1.1 The following definitions apply in these Conditions:
Background IPR: all Intellectual Property Rights, know-how, information, software, data, processes, techniques, materials and documentation owned by, or licensed to, a party: (a) prior to the Commencement Date; (b) developed independently of the Contract (whether prior to or during the Contract Term); or (c) that are of a general application and not developed specifically as part of the Deliverables; in each case excluding any Intellectual Property Rights in the Deliverables.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date when the Order Form has been signed by all the parties.
Conditions: these terms and conditions as amended from time to time in accordance with clause 21.4.
Confidential Information: all information (however recorded or preserved) that one party (the discloser) discloses or makes available to the other party (the recipient) in connection with the Contract and which would be regarded as confidential by a reasonable business person. It includes any information of a confidential nature relating to the charges hereunder, either party's operations, products, processes, trade secrets or know-how. It does not include information that: (a) is or becomes generally available to the public (other than as a result of the recipient's breach); (b) was available to the recipient on a non-confidential basis before disclosure by the discloser; (c) was, is
or becomes available to the recipient on a non-confidential basis from a person who, to the recipient's knowledge, is not bound by a confidentiality agreement with the discloser or otherwise prohibited from disclosing the information to the recipient; (d) is developed by or for the recipient independently of the information disclosed by the discloser; or (e) the parties agree in writing is not confidential or may be disclosed.
Content Package: the bundle of content to be created and/or supplied by Xydrobe for use with the Product, as specified in the Order Form, and forming part of the immersive experience to be delivered to the Customer.
Content Charges: the fees payable by the Customer in respect of the Services, as set out in the Order Form.
Contract: the contract between Xydrobe and the Customer for the supply of Services and the hire of the Product, comprising of the Order Form and these Conditions.
Contract Term: has the meaning ascribed to it in clause 2.1.
Customer: means the party identified as such in the Order Form, being the lessee of the Product and the recipient of services under the Contract.
Controller Personal Data, process and processing: as defined in the Data Protection
Legislation.
Customer Materials: all documents, information, data, content, items and materials in any form (whether owned by the Customer or a third party), which are provided by the Customer to Xydrobe in connection with the Services or the Contract.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Data Use and Access Act 2025 (DUAA 2025); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; 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).
Deliverables: all digital, audio, visual, sensory or multimedia content, materials and assets created by Xydrobe as part of the Content Package selected and paid for by the Customer, which is intended to be used by the Customer in the Product to create a multi-sensory immersive experience relating to the Customer’s brand or products.
Delivery: the transfer of physical possession of the Product to the Customer at the Site.
Delivery and Installation Charges: has the meaning ascribed to it in clause 7.1.
Delivery Date: has the meaning ascribed to it in the Order Form, or such other date as otherwise agreed between the parties from time to time.
Deposit: has the ascribed to it in clause 6.4 .
Deposit Amount: the sum specified as the deposit in the Order Form., payable by the Customer to Xydrobe in accordance with clause 6.4.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in
any part of the world.
Location: the Customer's premises, as set out in in the Order Form, to which the Product shall be delivered and installed.
Medical Waiver: has the meaning ascribed to it in clause 9.8.
Order Form: the order form, which incorporates these Conditions, that is signed by Xydrobe and the Customer.
Pod & Services Pack: the pack made available by Xydrobe, which sets out the operational, safety and usage requirements in relation to the Product and the Services, as amended from time to time in accordance with clause 9.6. The current version of which is accessible here.
Product: the items of equipment listed in the Order Form, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Rental Charges: the payments made by or on behalf of Lessee for hire of the Product.
Rental Period: the period of hire for the Product as set out in the Order Form.
Risk Period: the period during which the Product is at the sole of the risk of the Customer as set out in clause 8.2 .
Services: the content creation services to be supplied by Xydrobe to the Customer under the Contract, including any Deliverables, as determined by the Content Package selected by the Customer in the Order Form and paid for by the Customer.
Site: has the meaning ascribed to it in clause 7.3.
Total Loss: due to the Customer's default the Product is, in Xydrobe's reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
Trained Operator: has the meaning ascribed to it in clause 9.3.
Training Allotment: the number of members of the Customer’s personnel entitled to receive training from Xydrobe under the Contract, as specified in the Order Form.
User: any person, including (without limitation) any employee, contractor, agent, guest, invitee or other third party, who uses, operates or otherwise accesses the Product, whether directly or with the authority or permission of the Customer, including any individual participating in the immersive experience.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Xydrobe: means the party identified as such in the Order Form, being the lessor of the
Product and the provider of services under the Contract.
1.2 A reference to:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's permitted assigns;
(b) a company includes any company, corporation or other body corporate, wherever and however incorporated or established;
(c) words in the singular include the plural and in the plural include the singular, and to one gender includes a reference to the other genders;
(d) legislation or a legislative provision is a reference to it as amended, extended or re-
enacted from time to time (unless expressly provided otherwise in the Contract). A
reference to legislation or a legislative provision includes all subordinate legislation made
from time to time under that legislation or legislative provisions; and
(e) writing or written includes email but excludes fax.
1.3 These Conditions apply to and form part of the Contract. Any other terms or conditions, other than those expressly set out in the Contract, that the Customer seeks to impose or incorporate (whether at any time and by any means), shall not apply.
1.4 Clause and paragraph headings shall not affect the interpretation of these Conditions.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. COMMENCEMENT AND TERM
2.1 The Contract starts on the Commencement Date and continues, unless terminated earlier in accordance with clause 17 (Termination), until the end of the Rental Period (the Contract Term) when it terminates automatically without notice.
3. PROVISION OF SERVICES
3.1 Xydrobe shall:
(a) provide the Services and Deliverables to the Customer in accordance with the Contract;
(b) perform the Services with reasonable skill and care and in accordance with all applicable laws; and
(c) use all reasonable endeavours to meet any performance dates specified in the Contract
3.2 The Customer shall:
(a) co-operate with Xydrobe in all matters relating to the Services and ensure that its other suppliers co-operate with Xydrobe where reasonably necessary);
(b) provide Xydrobe, in a timely manner, with all documents, data, content, information and materials reasonably required by Xydrobe to provide the Services, and ensure that they are accurate and complete;
(c) obtain and maintain all licences, consents and permissions that relate to the Customer's business and are necessary to enable Xydrobe to provide the Services, including all licences, consents and permissions that are needed: (i) to allow Xydrobe to use the Customer Materials; and (ii) to allow the installation of the Product at the Location;
(d) provide clear and prompt feedback on draft Deliverables submitted by Xydrobe to the
Customer; and
(e) respond promptly to any reasonable requests from Xydrobe for instructions or approvals required to provide the Services.
3.3 To the extent that Xydrobe’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or any of its agents, consultants or other suppliers (“Excusing Cause”), Xydrobe shall not be in breach of the Contract nor liable for any loss or damage incurred by the Customer as a result of its performance being prevented or delayed.
Without prejudice to any other right or remedy it may have, Xydrobe shall be:
(a) allowed an extension of time to perform its obligations equal to the delay caused by the Excusing Cause; and
(b) entitled to recover any loss or damage, including additional costs (provided reasonable), incurred as a result of the Excusing Cause.
3.4 If the Customer requests any goods, services, deliverables, content or materials from Xydrobe that are outside the scope of the Contract, such additional work shall be subject to additional charges and shall only be supplied pursuant to a separate written agreement between the parties.
4. PRODUCT HIRE
4.1 Xydrobe shall hire the Product to the Customer for use at the Location subject to the terms and conditions of the Contract.
4.2 Xydrobe shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Customer's quiet possession of the Product.
4.3 The Customer’s rights to use the Product under the Contract shall continue for the Rental Period, unless the Contract is terminated earlier in accordance with clause 16 (Termination). Upon expiry of the Rental Period, the Customer’s rights to use the Product shall terminate automatically without the need for notice.
5. CUSTOMISATION OF THE PRODUCT
5.1 As part of the Rental Charges, Xydrobe shall carry out aesthetic customisation to the external surfaces of the Product (such as graphics, branding, or similar visual modifications) in accordance with the specifications expressly agreed in writing between the parties. For the avoidance of doubt, such customisation shall not involve or permit any structural or functional modifications to the Product.
5.2 Save as provided in clause 5.1, the Customer shall not, and shall not permit any third party to, make any alterations, modifications, or customisations (whether aesthetic, structural or functional) to the Product (including its external surfaces or internal fittings) without the prior written consent of Xydrobe. Any such consent shall be at Xydrobe’s absolute discretion and may be subject to additional charges as agreed between the parties in writing.
6. CHARGES, DEPOSIT AND EXPENSES
6.1 Xydrobe shall issue an invoice to the Customer for the Content Charges and the Rental Charges, and the Customer shall pay such charges in accordance with the payment terms set out in the Order Form. If no payment terms are set out in the Order Form, all such charges shall be due and payable in full within fourteen (14) days of the Commencement Date.
6.2 All sums due under the Contract:
(a) shall be made in Pounds Sterling, in cleared funds, to the bank account nominated in writing by Xydrobe;
(b) are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time
prescribed by law;
(c) subject to clause 6.5 (Deposits), are non-refundable and non-cancellable; and
(d) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.3 If the Customer fails to make a payment due to Xydrobe under the Contract by the due date, then, without limiting Xydrobe's remedies under clause 17 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.4 If the Customer fails to make any payment due under the Contract by the due date, Xydrobe may, without liability or prejudice to any other right or remedy it may have, suspend the provision of the Services (including the creation or delivery of any Deliverable) and/or delay delivery or installation of the Product until payment has been received in full.
6.5 The Customer shall, within fourteen (14) days of the Commencement Date, pay the Deposit Amount to Xydrobe (the “Deposit”). The Deposit is a deposit against default by the Customer of payment of any sums due under the Contract or any loss of or damage caused to the Product. If the Customer fails without due cause to make any payment payable under the Contract in accordance with the agreed payment terms, or causes any loss or damage to the Product (in whole or in part), Xydrobe shall be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to Xydrobe any sums deducted from the Deposit within fourteen (14) days of a demand for the same. The Deposit (or balance of the Deposit) shall be refundable within fourteen
(14) days of the end of the Rental Period.
6.6 The Customer shall reimburse Xydrobe for all reasonable travel, accommodation, and subsistence expenses properly and necessarily incurred by Xydrobe’s personnel in connection with the performance of the Contract, provided that such expenses have been approved in advance in writing by the Customer. Such expenses may include, without limitation, transportation, lodging, meals, and other incidental costs. Xydrobe shall provide the Customer with copies of receipts or other appropriate evidence of expenditure on request. Unless otherwise agreed in writing, such expenses shall be invoiced in arrears and shall be payable by the Customer within thirty (30) days
of the date of invoice.
7. DELIVERY AND INSTALLATION
7.1 The cost of delivery and installation of the Product at the Location (“Delivery and Installation Charges”) shall be borne by the Customer and agreed in writing in advance. Xydrobe shall invoice the Customer for the Delivery and Installation Charges, and the Customer shall, unless otherwise agreed in writing, pay such charges in full within fourteen (14) days of the Commencement Date. Xydrobe shall have no obligation to deliver or install the Product unless and until payment of the Delivery and Installation Charges has been received in full.
7.2 Delivery shall be made by Xydrobe. Xydrobe shall use all reasonable endeavours to effect Delivery by the Delivery Date. Risk shall transfer in accordance with clause 8.2 of the Contract.
7.3 Xydrobe shall install the Product at the Location. The exact point at the Location at which the Product is installed shall be referred to as the “Site”. The Customer shall procure that a duly authorised representative of the Customer shall be present at the installation of the Product.
Acceptance by such representative of installation shall constitute conclusive evidence that the Customer has examined the Product and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by Xydrobe, the Customer's duly authorised representative shall sign a receipt confirming such acceptance.
7.4 The Customer not, and shall not permit any third party to, move, reposition, or relocate the Product from the Site. Any movement or relocation of the Product shall be undertaken exclusively by Xydrobe or its authorised representatives. Xydrobe shall charge additional fees for any such movement or relocation, and such fees shall be agreed in advance with the Customer. If the Customer moves, attempts to move, or permits the movement of the Product, the Customer shall be liable for all loss, damage, costs, or expenses suffered or incurred by Xydrobe arising directly or indirectly from such unauthorised movement;
7.5 To facilitate Delivery and installation of the Product, the Customer shall provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously, including the site requirements as set out in the Pod & Services Pack.
7.6 The Customer shall inform Xydrobe of all health and safety and security requirements that apply at the Location.
7.7 Xydrobe shall use reasonable endeavours to ensure its personnel observe all health and safety and security requirements that apply at the Location and that have been communicated to it in advance under clause 7.6.
7.8 If the Customer fails to accept delivery of the Product when Xydrobe tenders Delivery, then, except where such failure is caused by Xydrobe's failure to comply with its obligations under the Contract:
(a) the Product shall be deemed to have been delivered at 9.00 am on the date Xydrobe
tendered Delivery; and
(b) Xydrobe shall store the Product until the Customer takes possession of the Product, and charge the Customer for all related costs and expenses (including insurance).
7.9 The Customer acknowledges that the Product is of significant weight and that installation may result in marks, indentations, or other damage to flooring or floor coverings at the Site. It is the Customer’s sole responsibility to take all necessary precautions to protect its flooring prior to Delivery and installation of the Product. Xydrobe shall have no liability for any damage to flooring or floor coverings arising from the Delivery, movement, or installation of the Product, except to the
extent caused by Xydrobe’s negligence or wilful misconduct.
8. TITLE, RISK AND INSURANCE
8.1 The Product shall at all times remain the property of Xydrobe, and the Customer shall have no right, title or interest in or to the Product (save the right to possession and use of the Product subject to the terms and conditions of the Contract).
8.2 The risk of loss, theft, damage or destruction of the Product shall pass to the Customer on upon completion of installation of the Product. The Product shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Product is in the possession, custody or control of the Customer (Risk Period) until such time as Xydrobe retakes possession of the Product.
8.3 During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Product to a value not less than its full replacement value
comprehensively against all usual risks of loss, damage or destruction by fire, theft or
accident, and such other risks as Xydrobe may from time to time nominate in writing;
provided always that this requirement shall not relieve or limit Xydrobe’s obligations or
liabilities under any product warranties or remedies expressly provided in the Contract;
(b) insurance for such amounts as a prudent owner or operator of the Product would insure for, or such amount as Xydrobe may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Product; and
(c) insurance against such other or further risks relating to the Product as may be required by law, together with such other insurance as Xydrobe may from time to time consider reasonably necessary and advise to the Customer in writing.
8.4 All insurance policies procured by the Customer shall be endorsed to provide Xydrobe with at least 5 Business Days; prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on Xydrobe's request name Xydrobe on the policies as a loss payee in relation to any claim relating to the Product. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
8.5 If the Customer fails to effect or maintain any of the insurances required under the Contract, Xydrobe shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
8.6 The Customer shall, on demand, supply Xydrobe with copies of the insurance policy certificates and details of the cover provided and proof of premium payment to confirm the insurance arrangements.
8.7 The Customer shall give immediate written notice to Xydrobe in the event of any loss, accident or damage to the Product arising out of or in connection with the Customer's possession or use of the Product.
9. TRAINING AND USE OF THE PRODUCT
9.1 Xydrobe shall provide training in the use, control and operation of the Product for the Customer’s personnel, up to the Training Allotment. The format and content of such training shall be determined solely by Xydrobe. Training shall be delivered at a time mutually agreed between the parties, and unless otherwise agreed in writing, shall take place at the Location.
9.2 If the Customer requires Xydrobe to provide training in excess of the Training Allotment, or any additional training from time to time during the Contract Term, such further training shall be chargeable at a cost to be agreed in writing between the parties. Xydrobe shall invoice the Customer in advance for any such additional training, and the Customer shall pay all such invoices in full within thirty (30) days of the date of invoice.
9.3 Only those members of the Customer’s personnel who have satisfactorily completed the training in accordance with clause 9.1 or clause 9.2 (each a “Trained Operator”) shall be permitted to operate or control the Product. The Customer shall ensure that no persons other than a Trained Operator are permitted to operate or control the Product.
9.4 Xydrobe shall supply the Customer with a tablet device pre-loaded with an application to enable the Trained Operators to control and operate the Product. The Customer shall ensure that the tablet device and application are used solely by the Trained Operators and strictly in accordance with any terms of use or policies relating to the same, as specified by Xydrobe and as may be updated from time to time.
9.5 The Customer shall ensure that the Product is used strictly in accordance with all instructions, operating procedures, terms of use, and policies provided by Xydrobe from time to time. Without limitation, the Customer acknowledges receipt of the current version of the Pod & Services Pack, which sets out the rules and requirements governing the use, maintenance, storage, control and operation of the Product, as well as all relevant health and safety requirements. The Customer shall comply, and shall ensure that all Users comply, with the Pod & Services Pack at all times during the Rental Period.
9.6 Xydrobe may update the Pod & Services Pack and any related policies or procedures from time to time to reflect operational or safety improvements. Xydrobe shall notify the Customer in writing of any material changes as soon as reasonably practicable after such changes are made.
9.7 The Customer shall ensure that the Product is supervised by a Trained Operator at all times during its operation or when in use, and shall not permit any User to enter or use the Product unless accompanied and supervised by a Trained Operator.
9.8 The Customer acknowledges that the immersive experience delivered via the Product and the Deliverables may not be suitable for all individuals and that certain medical conditions may preclude or limit safe participation. Further information regarding relevant medical conditions and associated risks is set out in the Pod & Services Pack. The Customer shall be solely responsible for informing all Users of these risks and ensuring that, prior to using the Product or Deliverables, or participating in any immersive experience delivered via the Product, each User completes and signs a medical waiver in the form substantially the same as that provided in the Pod & Services Pack (the “Medical Waiver”). Xydrobe shall have no liability for any injury, loss or damage arising from a User’s failure to complete the Medical Waiver, or from any failure by the Customer to comply with its obligations under this clause 9.8. The Customer shall be responsible for retaining an accurate and complete copy of each Medical Waiver for so long as is reasonably necessary to
fulfil its obligations under clause 10.2.
10. DATA PROTECTION
10.1 Subject to the provisions of clause 10.2, the parties acknowledge and agree that, in the normal course of providing the Services, Xydrobe does not anticipate processing any Personal Data relating to the Users.
10.2 Xydrobe may where reasonably necessary, require the Customer to supply a copy of a Medical Waiver for the sole purpose of Xydrobe establishing, exercising, or defending legal claims arising out of or in connection with the Services (including any actual or threatened claims, proceedings, investigations, or regulatory inquiries). In relation to any Personal Data contained in the Medical Waiver accessed pursuant to this clause 10.2 Xydrobe shall process such Personal Data as an independent Controller and shall comply with applicable provisions of Data Protection Legislation.
11. CUSTOMER RESPONSIBILITIES
11.1 The Customer shall during the Contract Term:
(a) ensure that the Product is kept and operated in a suitable environment, which shall as a minimum meet the requirements set out in the Pod & Services Pack, used only for the
purposes for which it is designed, and operated in a proper manner by a Trained Operator in accordance with any operating instructions provided by Xydrobe;
(b) take such steps (including compliance with all safety and usage instructions provided by Xydrobe) as may be necessary to ensure, so far as is reasonably practicable, that the
Product is at all times safe and without risk to health when it is being set, used, cleaned
or maintained by a person at work;
(c) make no alteration to the Product and shall not remove any existing component (or
components) from the Product without the prior written consent of Xydrobe;
(d) keep Xydrobe fully informed of all material matters relating to the Product;
(e) permit Xydrobe or its duly authorised representative to inspect the Product at all
reasonable times and for such purpose to enter on the Location and access the Site, or
any premises at which the Product may be located, and shall grant reasonable access
and facilities for such inspection;
(f) not, without the prior written consent of Xydrobe, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Product or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(g) not, without the prior written consent of Xydrobe, attach the Product to any land or
building so as to cause the Product to become a permanent or immovable fixture on such
land or building;
(h) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of Xydrobe in the Product and, where the Product has become affixed to any land or building, the Customer must take all necessary steps to ensure that Xydrobe may enter such land or building and recover the Product both during the Contract Term and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Xydrobe of any rights such person may have or acquire in the Product and a right for Xydrobe to enter onto such land or building to remove the Product;
(i) not suffer or permit the Product to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Product is so confiscated, seized or taken, the Customer shall notify Xydrobe and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Product and shall indemnify Xydrobe on demand against all losses, costs, charges, damages and expenses reasonably incurred as a result of such confiscation;
(j) not use the Product for any unlawful purpose;
(k) ensure that at all times the Product remains identifiable as Xydrobe's property and wherever possible shall ensure that a visible sign to that effect is attached to the Product;
(l) at the end of the Rental Period, allow Xydrobe or its representatives access to the
Location and the Site for the purpose of removing the Product; and
(m) not do or permit to be done anything which could invalidate the insurances referred to in clause 8.3 .
11.2 The Customer acknowledges that Xydrobe shall have no liability whatsoever for any loss of, or damage to, the Product, or any other loss or damage suffered or incurred by the Customer or any User, arising out of or in connection with any negligence, misuse, mishandling, or other improper use of the Product by the Customer or any User, including, without limitation, any failure to comply with the requirements of clause 5.2 (Customisations), clause 7.4 (moving the Product), clause 9 (Training and Use of the Product) or this clause 11 (Customer Responsibilities).
11.3 The Customer shall be responsible for the acts and omissions of all Users as if they were acts and omissions of the Customer itself.
11.4 Subject to clause 16, the Customer shall indemnify Xydrobe in full and on demand against all liabilities, costs, expenses, damages and losses (including all reasonable professional costs and expenses) suffered or incurred by Xydrobe arising out of or in connection with any breach by the Customer or any User of its obligations under clause 5.2 (Customisations), clause 7.4 (moving the Product), clause 9 (Training and Use of the Product) or this clause 11 (Customer Responsibilities).
12. PRODUCT WARRANTY
12.1 Xydrobe warrants that the Product shall substantially conform to its specification (as made available by Xydrobe), be of satisfactory quality and fit for any purpose held out by Xydrobe. Xydrobe shall use all reasonable endeavours to remedy, free of charge, any material defect in the Product which manifests itself within the Rental Period, provided that:
(a) the Customer notifies Xydrobe of any defect in writing immediately (but in any event
within two (2) Business Days) of the Customer becoming aware of the defect;
(b) Xydrobe is permitted to make a full examination of the alleged defect;
(c) the defect was not caused, in whole or in part, by misuse, neglect, mishandling or
unauthorised alteration or manipulation;
(d) the defect was not caused, in whole or in part, by any information, design or any other assistance supplied by the Customer or on its behalf; and
(e) the defect is directly attributable to defective material, workmanship or design.
12.2 If Xydrobe fails to remedy any material defect in the Product in accordance with clause 11.1 , Xydrobe shall, as soon as reasonably practicable, source and install an alternative product of equivalent specification for the Customer. In such case, the Rental Period shall be extended by the duration of the period during which the Product was unusable as a result of the defect. If it is not reasonably practicable for Xydrobe to source and install an alternative product within a reasonable period, then, at the Customer’s request, Xydrobe shall accept the return of the Product, make an
appropriate reduction to the Rental Charges payable for the remainder of the Rental Period, and, if relevant, return the Deposit (or any part of it) to the Customer.
13. SUPPORT
13.1 Xydrobe shall provide reasonable remote technical support to the Customer during the period from 9.00 am to 5.00 pm on any working day (the “Support Hours”), via the agreed support channels as specified in the Pod & Services Pack or as otherwise agreed in writing between the parties.
13.2 For the purposes of this clause 13:
(a) where the Location is in the United States of America or Canada, “Support Hours” shall be construed to mean 9.00 am to 5.00 pm Eastern Standard Time on any day other than a Saturday, Sunday or public holiday in the United States of America or Canada (as applicable); and
(b) for all other Locations, “Support Hours” shall be construed to mean 9.00 am to 5.00 pm United Kingdom time on any Business Day (with “Business Day” as defined in these Conditions).
13.3 Xydrobe shall supply an initial starter bundle of consumables, including but not limited to: scents, hygiene products, and sanitation products. Once the starter bundle is finished, the Lessee is responsible for self-managing the reordering and procurement of all consumables for the duration of the rental term, with all costs attributed to the Lessee.
14. INTELLECTUAL PROPERTY
14.1 Xydrobe and its licensors shall retain ownership of all Intellectual Property Rights in the Product and the Xydrobe Background IPR (including, for the avoidance of doubt, all Intellectual Property Rights in the Pod & Services Pack). Subject to the Customer’s payment in full in accordance with the Contract, Xydrobe grants to the Customer a non-exclusive, royalty-free, non-transferable licence, during the Contract Term, to use the Xydrobe Background IPR solely to the extent necessary for the receipt and use of the Services and the Deliverables under the Contract.
14.2 The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
14.3 Subject to receipt by Xydrobe of all sums due and payable under the Contract, Xydrobe hereby assigns to the Customer, with full title guarantee and free from all encumbrances, all Intellectual Property Rights in the Deliverables (excluding any Customer Materials and Xydrobe Background IPR contained in the Deliverables) such assignment taking effect immediately upon their creation.
14.4 The Customer grants Xydrobe a non-exclusive, royalty-free, non-transferable (except in accordance with clause 21) licence during the Contract Term:
(a) to use, copy and modify the Customer Materials solely for the purpose of providing the Services to the Customer in accordance with the Contract; and
(b) to use, copy, and modify the Deliverables assigned to the Customer under clause 14.3 solely for the purpose of providing the Services to the Customer in accordance with the Contract, and Xydrobe may grant sub-licences of the rights granted under this clause 14.4 to its subcontractors and other suppliers to the extent necessary for the performance of the Services.
14.5 Xydrobe shall have the right to use the Deliverables, or any part of them, for its own marketing and promotional purposes, provided that Xydrobe obtains the Customer’s express written permission in advance of such use.
14.6 Xydrobe warrants that the supply, receipt and use of the Product and Deliverables by the Customer in accordance with the Contract, or otherwise in accordance with Xydrobe’s express written instructions, shall not infringe the Intellectual Property Rights of any third party. Subject to clause 16, Xydrobe shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including reasonable professional costs and expenses) suffered or incurred by the Customer as a direct result of any final judgment by a court of competent jurisdiction, or any settlement agreed by Xydrobe in writing, that the Customer’s supply, receipt or use of the Product or Deliverables in accordance with the Contract infringes the Intellectual Property Rights of any third party, except to the extent that the infringement arises from the Customer Materials or from use of the Product or Deliverables other than in compliance with the Contract.
14.7 The Customer warrants and undertakes that the supply, receipt and use of the Customer Materials by Xydrobe in accordance with the Contract, or otherwise in accordance with the Customer’s express written instructions, shall not infringe the Intellectual Property Rights of any third party. Subject to clause 16, the Customer shall indemnify Xydrobe against all liabilities, costs, expenses, damages and losses (including reasonable professional costs and expenses) suffered or incurred by Xydrobe as a direct result of any final judgment by a court of competent jurisdiction, or any settlement agreed by the Customer in writing, that Xydrobe’s use of the Customer Materials in accordance with the Contract infringes the Intellectual Property Rights of any third party, except to the extent that such infringement arises from Xydrobe’s use of the Customer Materials other than in accordance with the Customer’s express written instructions or otherwise not in compliance with the Contract.
15. CONFIDENTIAL INFORMATION
15.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any Confidential Information, except as permitted by clause 15.2
15.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or
regulatory authority.
15.3 Neither party may use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
16. LIMITATION OF LIABILITY
16.1 The following definitions apply in this clause 16:
(a) liability: every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise; and
(b) default: any act or omission resulting in Xydrobe incurring liability to the Customer.
16.2 Nothing in the Contract limits or excludes:
(a) liability for wilful default or wilful misconduct;
(b) liability for death or personal injury caused by negligence to the extent preserved by
section 2(1) of the Unfair Contract Terms Act 1977;
(c) liability for fraud or fraudulent misrepresentation;
(d) liability for breach of the terms implied by section 8 of the Supply of Goods (Implied
Terms) Act 1973; or
(e) any liability that cannot legally be limited.
16.3 Subject to clause 16.2 , Xydrobe's total aggregate liability under the Contract:
(a) in respect of a claim arising out of or in connection with clause 14 (Third Party IPR) or for breach of clause 15 (Confidential Information), shall not exceed £500,000 (five
hundred thousand pounds sterling); and
(b) In all other cases, shall not exceed an amount equal to 100% (one hundred percent) of all sums paid or payable by the Customer under the Contract.
16.4 Subject to clause 16.2, the Customer’s total aggregate liability under the Contract:
(a) under any indemnity given by the Customer under the Contract or for a breach of clause 15 (Confidential Information), shall not exceed £500,000 (five hundred thousand pounds sterling); and
(b) in all other cases, shall not exceed an amount equal to 100% of all sums paid or payable by the Customer under the Contract.
16.5 Subject to clause 16.2 , neither party shall have any liability to the other for: loss of profits (including loss of anticipated savings); loss of sales or business; loss of agreements or contracts; loss of use or corruption of software, data or information; loss of or damage to goodwill; or any indirect or consequential loss.
16.6 Subject to clause 16.2 , all implied terms and conditions as to the quality or performance of the Product and any other goods or services provided under the Contract are, to the fullest extent permitted by law, excluded from the Contract.
17. TERMINATION
17.1 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:
(a) the other party commits a material breach of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
(b) the other party is unable to pay its debts as they fall due, admits inability to pay its debts, commences negotiations with any class of its creditors for rescheduling or compromise of those debts, takes any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with its creditors (other than for the sole purpose of solvent amalgamation or reconstruction), is subject to a winding up or bankruptcy petition, or has a receiver, administrative receiver, manager or similar officer appointed over all or any of its assets; or
(c) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.1(b).
17.2 Without affecting any other right or remedy available to it, Xydrobe may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for
payment and remains in default not less than fourteen (14) days after being notified in
writing to make such payment;
(b) the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
(c) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(d) there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010) and, in Xydrobe’s reasonable opinion, such change of control may adversely affect the Customer’s financial standing or its ability to perform its
obligations under the Contract.
17.3 The Contract shall automatically terminate if a Total Loss occurs in relation to the Product.
18. CONSEQUENCES OF TERMINATION OR EXPIRY
18.1 On expiry or termination of the Contract, however caused:
(a) Xydrobe's consent to the Customer's possession of the Product shall terminate;
(b) Xydrobe may, by its authorised representatives, without notice and at the Customer's
expense, retake possession of the Product and for this purpose may enter the Location to access the Site or any premises at which the Product is located;
(c) the Customer shall ensure the safe and proper storage of the Product until it has been
collected by Xydrobe; and
(d) without prejudice to any other rights or remedies of Xydrobe, the Customer shall pay to Xydrobe on demand:
(i) all sums due but unpaid at the date of such demand together with any interest
accrued pursuant to clause 6.3, and
(ii) any costs and expenses incurred by Xydrobe in recovering the Product or in
collecting any sums due under the Contract (including any storage, insurance,
repair, transport and legal costs), and
(e) subject to receipt by Xydrobe of all sums due and payable under the Contract, Xydrobe shall deliver the Deliverables to the Customer (to the extent that they have been
completed at the point of termination or expiry).
18.2 On termination of the Contract by Xydrobe pursuant to clause 17 or following any repudiatory breach of the Contract by the Customer which is accepted by Xydrobe, without prejudice to any other rights or remedies of Xydrobe, the Customer shall pay to Xydrobe on demand a sum equal to the whole of the Rental Charges that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period, less a discount for accelerated payment less (if and to the extent such a discount is offered and set out in the Order Form).
18.3 The sums payable pursuant to clause 18.2(e) shall be agreed compensation for Xydrobe's loss and shall be payable in addition to the sums payable pursuant to clause 18.1(d) . Such sums may be partly or wholly recovered from any Deposit.
18.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
18.5 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
19. FORCE MAJEURE
19.1 Subject to clause 19.2, neither party shall be liable for any delay of failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control.
19.2 The Customer shall not be relieved of any obligation to make payments under the Contract except where the relevant delay or failure in payment is directly attributable to a force majeure event that materially affects the operation of banking or payment systems. In such circumstances, the Customer shall make any outstanding payment as soon as the relevant banking or payment systems are restored and operational.
19.3 If the period of delay or non-performance continues for more than ninety (90) days, the party not affected may terminate the Contract by giving not less than seven (7) days written notice to the affected party
20. NOTICES
20.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be sent by email to the email addresses specified for formal notices in the Order Form (or an address substituted in writing by the party to be served).
20.2 Any notice shall be deemed to have been received at the time of transmission, provided that if transmission occurs outside business hours in the place of receipt, the notice shall be deemed to have been received when business hours next commence. If the sending party receives an automated message or other notification indicating that the email has not been delivered to the recipient (including, without limitation, a “bounce back” or delivery failure notice), the notice shall not be deemed to have been received.
20.3 For the purposes of this clause, “business hours” means 9.00 am to 5.00 pm on a working day, and a “working day” means any day other than a Saturday, Sunday or public holiday at the place of receipt.
20.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
21. GENERAL
21.1 The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
21.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract, without the prior written consent of Xydrobe.
21.3 Xydrobe may at any time assign, transfer, mortgage, charge, delegate, declare a trust over, or deal in any other manner with any or all of its rights and obligations under the Contract. For the avoidance of doubt, Xydrobe may subcontract any part of the Services or its other obligations under the Contract to any third party, provided that Xydrobe shall remain fully liable to the Customer for the performance of any such subcontracted obligations.
21.4 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.5 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21.6 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
21.7 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
21.8 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.
21.9 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 this clause, 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.
21.10 The parties shall seek to resolve any dispute or claim arising out of or in connection with the Contract (including non-contractual disputes or claims) amicably and in good faith through negotiations. Either party may initiate such negotiations by giving written notice to the other party describing the nature of the dispute. If the dispute is not resolved within thirty (30) days of such notice, either party may commence proceedings pursuant to clause 20.12.
21.11 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
21.12 Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation shall:
(a) where the Customer is incorporated or has its registered office in the United States of
America or Canada, be finally resolved by arbitration under the Rules of Arbitration of the
International Chamber of Commerce, which are deemed to be incorporated by reference
into this clause. The seat, or legal place, of arbitration shall be New York, USA. The
language of arbitration shall be English. The arbitral tribunal shall consist of a sole
arbitrator;
(b) in all other cases, be subject to the exclusive jurisdiction of the course of England and
Wales, but nothing in this clause shall prevent either party from seeking interim or injunctive relief in any court of competent jurisdiction.
Any questions on these terms should be directed to montana@xydrobe.com