MASTER CUSTOMER TERMS
Published at https://xanadu.co/mca. Version 1.0. Last updated [insert date].
These Master Customer Terms (“Master Terms”) set out the terms on which XANADU TECHNOLOGY LIMITED, a company incorporated under the laws of the United Arab Emirates with its registered office at Unit GA-00-SZ-L1-RT-208, Level 1, Gate Avenue – South Zone, Dubai International Financial Centre, Dubai, United Arab Emirates (“Xanadu”), supplies products and services to its customers. They apply to, and are incorporated by reference into, each Order entered into between Xanadu and a customer (the “Customer” or “you”). Xanadu and the Customer are each a “Party” and together the “Parties”.
Xanadu operates a technology services business through which it (i) resells third-party software and services, (ii) provides its own proprietary products, and (iii) delivers professional and software development services to its customers. These Master Terms establish a single, scalable master framework governing all current and future purchases by a Customer from Xanadu.
Application and acceptance. These Master Terms apply to each Order and become binding on the Customer when the Customer (a) signs or otherwise accepts an Order that incorporates these Master Terms, or (b) accesses, activates, deploys or uses any Supplies, in each case in accordance with Section 2. By doing so, the Customer agrees to these Master Terms. No Supplies are provided unless and until an Order has been accepted by Xanadu in accordance with Section 2.2. In these Master Terms, “Effective Date” means the date on which the Customer first accepts an Order incorporating these Master Terms (whether by signature or in accordance with Section 2.2).
Version applicable to an Order. Xanadu may update these Master Terms from time to time by publishing an updated version at https://xanadu.co/mca. The version of these Master Terms in effect on the date an Order is accepted applies to that Order for the duration of its Order Term, and any later update does not apply to that Order unless the Parties agree otherwise in writing or a change is required by applicable law or by a Vendor. Each Order may record the version and date of the Master Terms that applies to it.
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
(a) In this Agreement, the following terms shall have the following meanings:
(i) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
(ii) “Agreement” means these Master Terms, and all Orders and Statements of Work entered into under it, together with any duly executed amendments thereto.
(iii) “Business Day(s)” means Monday through Friday.
(iv) “Confidential Information” means any non-public information disclosed by or on behalf of a Party in connection with this Agreement that is identified as confidential or would reasonably be understood to be confidential.
(v) “Consequential Loss” means any indirect, special, incidental or consequential loss or damage, and any loss of profit, revenue, anticipated savings, business opportunity, goodwill or reputation, data or use, whether direct or indirect, and whether or not loss was foreseeable.
(vi) “Customer Data” means all data, content or information provided by or on behalf of Customer, or generated through Customer’s use of the Products or Services.
(vii) “Customer Material” means any material provided by, or to which access is given by, Customer to Xanadu for the purposes of an Order or work delivered under these Master Terms.
(viii) “Customer Personal Information” means any Personal Information provided to Xanadu by Customer or its Personnel.
(ix) “Customer Responsibilities” means the additional Customer responsibilities identified as such in an Order or SOW.
(x) “Deliverables” means a deliverable that Xanadu agrees to provide as part of the Xanadu Services, as specified in an Order (but does not include Xanadu Products, Vendor Products or Third-Party Material).
(xi) “Developed Material(s)” means materials (of any nature) created by or on behalf of Xanadu in the course of providing the Supplies.
(xii) “Expenses” means: (i) any reasonable travel and accommodation expenses; and (ii) any other expenses agreed in an Order.
(xiii) “Fees” mean the fees set out in an Order or Statement of Work, together with any other amounts contemplated by these Master Terms as being payable by Customer to Xanadu.
(xiv) “Force Majeure Event” means any event or circumstance beyond a Party’s reasonable control, whether or not foreseeable, that prevents or delays performance, including acts of God, natural disasters, pandemics, war, terrorism, civil unrest, governmental actions or restrictions, labour disputes, supply chain disruptions, and failures of utilities, hosting, internet or telecommunications services.
(xv) “Insolvency Event” means, in relation to a Party, that the party becomes unable to pay its debts as they fall due, enters into liquidation, administration, receivership, bankruptcy, or any analogous proceedings in any jurisdiction, makes an assignment for the benefit of its creditors, or ceases or threatens to cease carrying on business.
(xvi) “Intellectual Property Rights” means all industrial and intellectual property rights throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
(xvii) “Interest” means interest on any payment owing under an Order or these Master Terms at the rate of twelve per cent (12%) per annum or, if lower, the maximum rate permitted by applicable law, calculated daily from the due date until payment is received in full.
(xviii) “Loss” means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs on a full indemnity basis.
(xix) “Order” means a purchase order (in the form prescribed or accepted by Xanadu from time to time) that specifies the relevant Supplies, applicable fees and other transaction-specific terms, and which is accepted in accordance with Section 2.2.
(xx) “Personal Information” means any information that can be used to identify an individual, alone or when combined with other personal or identifying information (and includes “personal data” and “personal information” as that term is defined in the Privacy Laws).
(xxi) “Personnel” means a Party’s employees, directors, officers, contractors, professional advisors and agents.
(xxii) “Privacy Laws” Means all applicable laws and regulations in respect of the processing of Personal Information.
(xxiii) “Supplies” means the Vendor Products, Xanadu Services and/or the Xanadu Products.
(xxiv) “Statement of Work” or “SOW” means a statement of work describing specific Xanadu Services (and Deliverables as applicable) in the form prescribed or accepted by Xanadu from time to time.
(xxv) “Taxes” means all present and future sales, use, excise, intangibles, property, privilege or other taxes or assessments, however designated or levied, relating to any Order for Supplies pursuant to this Agreement, exclusive of taxes based on Xanadu’s net income.
(xxvi) “Third Party Material” means Intellectual Property Rights owned or licensed by a third party.
(xxvii) “Vendor” means the applicable third-party supplier of Vendor Products as identified in the relevant Order.
(xxviii) “Vendor Product Agreement” means the end user licence agreement, subscription agreement or other contract entered into directly between Customer and the relevant Vendor governing Customer’s access to and use of the Vendor Products.
(xxix) “Vendor Products” means third-party products or services of the Vendor that Xanadu resells to Customer as identified in an Order.
(xxx) “Vendor Terms” means in respect of Vendor Products identified in an Order: (i) where applicable, the Vendor Product Agreement entered into directly between Customer and the relevant Vendor; and (ii) any additional Vendor-specific terms, mandatory flow-down obligations, back-to-back protections, use restrictions, limitations of liability, compliance requirements or deviations that Xanadu is required to apply or elects to apply in connection with such Vendor Products, in each case identified, incorporated or set out in the applicable Order. For the avoidance of doubt, Vendor Terms include any vendor-specific commercial, operational or compliance requirements identified or incorporated in the applicable Order.
(xxxi) “Xanadu EULA” means Xanadu’s end-user licence agreement for Xanadu Products at https://xanadu.co/eula.
(xxxii) “Xanadu Material” means any material provided by or to which access is given by Xanadu to Customer for the purposes of these Master Terms or an Order (but does not include Xanadu Products, Vendor Products or Third-Party Material).
(xxxiii) “Xanadu Products” means products provided by Xanadu, which may include software, platforms or tools owned or licensed by Xanadu and made available to Customer under this Agreement.
(xxxiv) “Xanadu Services” means services provided by Xanadu as detailed in a Statement of Work, which may include (i) professional services in support of the Vendor Products, or (ii) software development services.
(b) Headings are for convenience only and do not affect interpretation. References to “including” are illustrative, not exhaustive.
2 SCOPE AND FRAMEWORK STRUCTURE
2.1 Agreement structure
(a) This Agreement establishes a master contractual framework under which Customer may request to procure Supplies from Xanadu from time to time.
(b) This Agreement operates on a modular basis whereby:
(i) each transaction is governed by an Order;
(ii) if Vendor Products are procured, the applicable Vendor Terms apply as set out in the Order;
(iii) if Xanadu Products are procured, the Xanadu EULA applies, and/or if Xanadu Services are procured, the applicable SOW applies; and
(iv) these Master Terms apply to all Orders and SOWs unless expressly varied.
(c) No Supplies are provided unless and until an Order has been expressly accepted by Xanadu in accordance with Section 2.2(c) below.
2.2 Orders as offers
(a) Each Order submitted by Customer constitutes an offer to purchase the Supplies specified in that Order on the terms of this Agreement.
(b) Xanadu is under no obligation to accept any Order and may reject an Order in its sole discretion.
(c) A binding contract in respect of an Order is formed when Xanadu accepts the Order, which may occur by countersignature, written confirmation or by commencing provision of the relevant Supplies, whether or not the Customer has executed the Order.
(d) Where Xanadu accepts an Order by commencing provision of the relevant Supplies, Customer’s access to, activation, deployment or use of any Supplies described in an Order constitutes its agreement to the applicable Order and all terms incorporated therein whether or not the Order has been executed by the Customer.
(e) For the avoidance of doubt, any purchase order terms, procurement portal terms or other standard terms issued by Customer are expressly rejected and shall have no effect unless expressly agreed in writing by Xanadu.
2.3 Orders
(a) Each Order must:
(i) be in the form prescribed or accepted by Xanadu from time to time;
(ii) identify the Supply(s) ordered;
(iii) where Vendor Products are ordered, identify the Vendor, the Vendor Product(s), the Vendor model (direct licence or Xanadu provided access) and the applicable Vendor Terms;
(iv) set out pricing, fees and payment terms;
(v) state the applicable term or subscription period (if relevant); and
(vi) incorporate by reference these Master Terms, together with any applicable Statement of Work and any applicable Vendor Terms.
(b) An Order that does not expressly incorporate these Master Terms, as well as the applicable Vendor Terms or SOW, is of no force or effect.
2.4 Statements of Work
(a) Where Xanadu Services are to be provided, a Statement of Work shall apply.
(b) Each SOW:
(i) forms part of, and is governed by, this Agreement;
(ii) must reference the applicable Order; and
(iii) applies solely to the Xanadu Services described therein.
2.5 No other terms
(a) Any purchase order terms, standard terms or similar documents issued by Customer are expressly excluded and have no legal effect unless agreed in writing by Xanadu.
(b) No terms are incorporated by implication, course of dealing or reference to external documentation unless expressly stated in an accepted Order or fully executed SOW.
2.6 Order of precedence
(a) In the event of any inconsistency or conflict between the documents forming this Agreement, the following order of precedence shall apply:
(i) these Master Terms;
(ii) any applicable Statement of Work and/or Vendor Terms (as included in the applicable Order), but only to the extent that such document expressly states that it overrides these Master Terms for the specific matter in question (and in the case of Vendor Terms, only for the applicable Vendor Products); and
(iii) the applicable Order, but only in respect of commercial and operational details expressly stated therein (including pricing, quantities, subscription term, and delivery dates).
(b) For the avoidance of doubt:
(i) no Statement of Work or Order shall amend or override the Master Terms by implication or inference; and
(ii) any deviation from the Master Terms must be expressly identified and limited in scope.
(c) Notwithstanding the order of precedence above, any Vendor Terms that the relevant Vendor requires Xanadu to apply or flow down (mandatory flow-down obligations) prevail over these Master Terms to the extent of any inconsistency, but only in respect of the applicable Vendor Products. Save for such mandatory flow-down obligations, Vendor Terms incorporated into an Order do not override these Master Terms as between Xanadu and Customer.
2.7 Independence of Orders
(a) Each accepted Order constitutes a separate and independent contract under this Agreement.
(b) Termination or expiry of one Order does not affect any other Order or SOW.
2.8 Execution
Orders and SOWs may be executed electronically and in counterparts and are binding when accepted in accordance with this Section 2.
3 SUPPLIES
3.1 Vendor Products
(a) General. Where an Order includes Vendor Products, the applicable Vendor and the relevant commercial and legal terms shall be identified in the Order.
(b) Direct licence with Vendor. Where the Vendor Products are licensed or supplied directly by a Vendor to Customer (including where access is provisioned by the Vendor):
(i) Customer’s access to and use of the Vendor Products is subject to the Vendor Product Agreement, which forms part of the Vendor Terms;
(ii) Customer must enter into, and remain bound by, the Vendor Product Agreement without amendment for the duration of the applicable Order (and Xanadu has no authority to negotiate, vary or waive it);
(iii) the Vendor Product Agreement is a separate agreement between Customer and the relevant Vendor (and not Xanadu) and is incorporated into this Agreement solely to the extent necessary to flow down and enforce the applicable Vendor Terms to Customer;
(iv) notwithstanding the existence of the Vendor Product Agreement, Customer acknowledges that additional Vendor Terms may apply between Customer and Xanadu in respect of the same Vendor Products (including mandatory flow down obligations and back-to-back protections), as identified in the applicable Order; and
(v) upon request, Customer will provide Xanadu with reasonable evidence of its acceptance/execution of the Vendor Product Agreement.
(c) No Direct Licence with Vendor. Where Xanadu provides access to the Vendor Products without a direct licence or contract between Customer and the Vendor:
(i) Customer’s access to and use of the Vendor Products is subject to the Vendor Terms applicable to those Vendor Products;
(ii) such Vendor Terms apply as contractual obligations between Xanadu and Customer under this Agreement; and
(iii) Customer agrees to comply with all Vendor Terms as a condition of receiving access to the Vendor Products.
(d) No Modification of Vendor Terms. Customer acknowledges that Xanadu has no authority to amend, waive or vary any Vendor Product Agreement or Vendor Terms and that access to and use of the Vendor Products is conditional on Customer’s acceptance of, and ongoing compliance with, the applicable Vendor Terms.
(e) No warranty or liability. To the maximum extent permitted by law:
(i) Xanadu does not provide any warranties or representations in respect of Vendor Products except as expressly stated in the applicable Order; and
(ii) Xanadu has no liability under any Vendor Product Agreement entered into directly between Customer and a Vendor.
3.2 Services
(a) Xanadu shall perform the Xanadu Services with reasonable skill and care.
(b) Xanadu shall use reasonable efforts to perform the Xanadu Services in accordance with the timelines specified in the applicable Order or Statement of Work.
(c) Xanadu shall not be responsible for any delay or failure in the performance of the Xanadu Services to the extent caused by:
(i) Customer’s failure to meet any assumptions or dependencies set out in the Order or Statement of Work; or
(ii) Customer’s failure to comply with its obligations under this Agreement.
3.3 Xanadu Products
Where an Order includes Xanadu Products, Customer’s use of those Xanadu Products is subject to the applicable Xanadu EULA, as identified in the Order, which is incorporated by reference into this Agreement.
3.4 Non-exclusive
All Supplies are provided by Xanadu on a non-exclusive basis unless expressly stated otherwise in an Order.
3.5 General use restrictions
Customer must:
(a) use the Supplies in accordance with all applicable laws;
(b) not use the Supplies:
(i) in breach of these Master Terms (including any Order or SOW);
(ii) in breach of any Vendor Terms (including any Vendor Product Agreement and any additional Vendor-specific terms identified in the applicable Order);
(iii) for any purpose other than its internal business purposes;
(iv) to engage in fraudulent or illegal behaviour, or in a way that Customer knows or ought to reasonably know, infringes any third party’s Intellectual Property Rights;
(v) to transmit, publish or communicate material that is pornographic, defamatory, offensive, abusive, indecent, menacing or unwanted; or
(vi) to circumvent any security measures, or to gain unauthorised access to or interfere with any third party’s online resources or systems, including any form of hacking, and
(c) ensure that its Personnel comply with subclauses 3.5(a) and 3.5(b) above.
(d) In respect of Vendor Products, Customer must also comply with all applicable Vendor Terms, and must not copy, modify, reverse engineer, create derivative works of, rebrand, white-label, or use the Vendor Products to build or market a competing product.
3.6 Responsibilities of Customer
(a) Customer must:
(i) give Xanadu all Customer Material, information and assistance reasonably necessary to enable Xanadu to provide the Supplies;
(ii) promptly perform any Customer Responsibilities to enable Xanadu to supply the Supplies in an efficient and timely manner; and
(iii) cooperate with Xanadu and act reasonably in connection with its receipt of the Supplies.
(b) Customer acknowledges and agrees that if Customer does not comply with Section 3.6(a) above:
(i) Xanadu may not be able to provide the Supplies to Customer; and
(ii) Xanadu is not responsible or liable for any failure to provide the Supplies to the extent that such failure arises from Customer's failure to comply with Section 3.6(a) above.
(c) Customer warrants that it is not subject to any applicable trade sanctions, export controls or economic restrictions imposed by any relevant governmental authority, and will not use the Supplies in a manner that causes Xanadu or any Vendor to breach applicable anti-corruption, sanctions or export control laws.
4 TERM OF MASTER TERMS AND ORDERS
4.1 Term of Master Terms
(a) These Master Terms shall commence on the Effective Date and shall continue in force until terminated in accordance with Section 10 (the “Framework Term”).
(b) These Master Terms establish a master contractual framework only and do not, in isolation, obligate either Party to place or accept any Order.
4.2 Term of Orders
(a) Each Order shall commence on the commencement date indicated in that Order (the “Commencement Date”) and shall continue for the initial period specified in that Order (the “Initial Period”).
(b) Where indicated in an Order, following the Initial Period the applicable Order shall automatically renew for one or more renewal periods of equal duration (each, a “Renewal Period”), unless terminated earlier in accordance with these Master Terms or the relevant Order (the Initial Period and any Renewal Period(s) shall be referred to collectively as the “Order Term”).
(c) Either Party may elect not to renew an Order by giving the other Party not less than sixty (60) calendar days’ written notice prior to the expiry of the Initial Period or the then-current Renewal Period (as applicable), in which case the Order shall expire at the end of that period.
(d) Termination or expiry of an Order shall not terminate this Agreement or any other Order or Statement of Work, unless expressly stated otherwise.
5 FEES, EXPENSES AND INVOICES
5.1 Fees
(a) Customer must pay all applicable Fees and Expenses to Xanadu.
(b) Fees and Expenses may be payable on a fixed-price or time-and-materials basis. If an Order states that the Fees and Expenses are an estimate only, Customer acknowledges and agrees that the Fees and Expenses charged for the Supplies will be based on Xanadu’s estimate; however, the final Fees and Expenses may be more or less than that estimate.
5.2 Invoice and payment
(a) Xanadu will invoice Customer for the Fees, Expenses, and any other amounts payable by Customer to Xanadu, in accordance with these Master Terms and any Order.
(b) Customer must pay all invoices issued by Xanadu, without set-off, within thirty (30) days after the date of issue of the invoice (unless otherwise agreed in an Order).
(c) Customer shall pay Xanadu electronically to Xanadu's bank account or by any payment method reasonably stipulated by Xanadu. No payment shall be considered paid until it is received in cleared funds by Xanadu.
(d) The relevant Order will specify the currency for payment.
(e) Where permitted by law, Customer must pay any merchant, bank, or currency conversion fees associated with its payment.
5.3 Late payment
(a) If Customer is late in paying any part of any monies due to Xanadu, Xanadu may (without prejudice to any other right or remedy available to it, whether under these Master Terms or an Order or by any statute, regulation or by-law) do any or all of the following:
(b) charge Interest on the amount due but unpaid and on amounts that have been disputed where the dispute has been resolved in Xanadu's favour from time to time from the due date until payment (after as well as before judgment); and
(c) suspend provision of the Supplies pursuant to Section 10.7.
5.4 Disputed Fees
(a) If Customer disputes any portion of an invoice in good faith, Customer must notify Xanadu within ten (10) Business Days of receipt of the applicable invoice, setting out in reasonable detail the basis of the dispute and the specific amount disputed. Any failure to do so constitutes acceptance of the invoice.
(b) Notwithstanding any dispute, Customer shall pay all invoiced Fees in full and when due, and shall not withhold, set off, defer, delay or condition payment of any undisputed amounts. Any dispute (including regarding performance, timing or completion) shall be dealt with separately and exclusively in accordance with the refund or credit mechanism set out in Section 5.4(c) below.
(c) If any dispute is finally determined in Customer’s favour, Xanadu shall apply the relevant amount as a credit against a future invoice (or, at Xanadu’s option, refund it). This credit/refund is Customer’s sole remedy in respect of that dispute.
(d) The existence of a dispute shall not affect Xanadu’s rights under this Agreement, including its rights to charge Interest, or exercise suspension or termination rights in accordance with Section 10.
6 INTELLECTUAL PROPERTY
6.1 Xanadu Materials and Deliverables
(a) Xanadu retains ownership of all Intellectual Property Rights subsisting in all Xanadu Materials and Deliverables.
(b) Any modification or enhancement to any Xanadu Material or Deliverable is deemed to form part of the Xanadu Materials or Deliverable (as applicable) and all Intellectual Property Rights in such modification or enhancement vest in Xanadu immediately from creation.
(c) Xanadu grants to Customer:
(i) a perpetual, non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in the Deliverables and any Xanadu Materials that form part of a Deliverable, solely for the purpose of enjoying use of that Deliverable for Customer’s internal business use; and
(ii) for as long as the Xanadu Services are provided, a non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in any Xanadu Materials that form part of the Xanadu Services, solely for the purpose of enjoying those Xanadu Services for Customer’s internal business use.
6.2 Customer Material
(a) Customer or its licensors (as applicable) retain ownership of all Intellectual Property Rights subsisting in all Customer Materials.
(b) Any modification or enhancement to any Customer Material is deemed to form part of Customer Materials and all Intellectual Property Rights in such modification or enhancement vest in Customer immediately from creation.
(c) For as long as the Supplies are provided, Customer grants to Xanadu a non-exclusive, global licence to use, reproduce and modify Customer Material solely for purposes of Xanadu providing the Supplies to Customer and otherwise performing its obligations under these Terms and the relevant Order.
(d) Customer warrants that use of Customer Material by Xanadu in accordance with these Terms and the relevant Order will not infringe any third-party rights (including Intellectual Property Rights).
6.3 Developed Material
(a) Unless otherwise set out in an Order, any Developed Material is owned by Xanadu, and to the extent any Developed Material does not automatically vest in Xanadu, Customer assigns all Intellectual Property Rights in or in relation to any Developed Material to Xanadu.
6.4 Use of Customer’s marks and promotional content
Unless Customer informs Xanadu otherwise in writing, Customer grants Xanadu the right to use Customer’s name, logo, trade marks, branding and any materials created for Customer by Xanadu in Xanadu’s promotional and marketing material from time to time.
7 CONFIDENTIAL INFORMATION
7.1 Protection of Confidential Information
Each Party must only use or copy the other Party’s Confidential Information for the purposes of this Agreement and the relevant Order and must take all steps reasonably necessary to:
(a) maintain the confidentiality of the other Party’s Confidential Information;
(b) ensure that any person who has access to Confidential Information of the other Party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with this Agreement; and
(c) enforce the confidentiality obligations set forth in this Agreement.
7.2 Restriction on disclosure
(a) Each Party must not disclose the Confidential Information of the other Party to any person except:
(i) to its Personnel who need to know the Confidential Information, for these Master Terms and the relevant Order only;
(ii) to relevant Vendors strictly to the extent necessary to enable the provision of Vendor Products or other Supplies under an Order, provided that such Vendors are subject to confidentiality obligations no less protective than those set out in this Agreement;
(iii) where the disclosure is required by applicable law, or under compulsion of law by a court or applicable governmental, judicial or administrative body or department or by the rules of any relevant stock exchange or regulator, as long as the disclosing Party:
(A) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(B) before disclosing any information, gives a reasonable amount of notice to the other Party and takes all reasonable steps (whether required by the other Party or not) to maintain such Confidential Information in confidence;
(iv) if the other Party has given its consent to the disclosure or use; or
(v) as expressly permitted by this Agreement.
(b) Before disclosing Confidential Information to a person (including a Vendor), the disclosing Party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and is bound by confidentiality obligations that are substantially similar to those set out in this Agreement.
7.3 Return of Confidential Information
(a) Subject to Section 7.3(b), each Party must return (or, if requested by the other Party, destroy or permanently de-identify) all copies of the other Party’s Confidential Information in its possession or control within fourteen (14) calendar days of expiry or termination of the relevant Order.
(b) If a Party needs to retain the other Party’s Confidential Information for:
(i) complying with any applicable law;
(ii) litigation;
(iii) internal quality assurance and record-keeping; or
(iv) performing its obligations or exercising its rights under this Agreement and the relevant Order,
(c) then it may retain and use it solely for this purpose, but must deal with the Confidential Information in accordance with Section 7.3(a) promptly after it is no longer required for this purpose.
7.4 Exclusions
The obligations of confidence in Sections 7.1 and 7.2 do not apply to Confidential Information that is:
(a) in the public domain other than as a result of a breach of these Master Terms, the relevant Order or other obligation of confidence; or
(b) already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information, free of any obligation of confidence.
8 PRIVACY
8.1 Xanadu’s obligations
If and to the extent Xanadu collects, stores, uses, discloses or otherwise deals with Customer Personal Information in the performance of its obligations under these Master Terms and the Order(s), Xanadu must only collect, store, use, disclose or otherwise deal with Customer Personal Information:
(a) in accordance with applicable Privacy Laws; and
(b) only as required for the purposes of providing the Supplies or as otherwise expressly permitted under these Master Terms.
8.2 Customer’s obligations
(a) Customer must comply with the Privacy Laws when handling any Personal Information provided or made available to it by or on behalf of Xanadu.
(b) If Customer Personal Information is made available to Xanadu, Customer must make all disclosures and obtain all consents required to ensure that:
(i) Customer is lawfully (including without breaching the Privacy Laws) able to provide, disclose or make available Customer Personal Information to Xanadu and its Personnel and any relevant Vendor; and
(ii) Xanadu and any relevant Vendor are lawfully (including without breaching the Privacy Laws) able to collect, store, use, disclose or otherwise deal with Customer Personal Information for the purposes of providing the Supplies and otherwise performing its obligations under these Master Terms and the relevant Order (and any Vendor Product Agreement, as applicable) and as described in its privacy policy.
(c) Where Customer provides Xanadu with access to Customer Personal Information by way of Canva, Google Workspace, Asana (or similar), Customer is always in control of Xanadu’s level of access. Customer is responsible for revoking that access when it is no longer needed.
8.3 Disclosure to Vendors
Customer authorises Xanadu to disclose Customer Data and Customer Personal Information to relevant Vendors to the extent reasonably necessary to provision, administer or support Vendor Products in accordance with the applicable Order and Vendor Terms.
9 LIMITATION OF LIABILITY AND INDEMNIFICATION
9.1 Limitations of liability
(a) Subject to this Section 9, each Party’s total aggregate liability to the other Party arising out of or in connection with this Agreement or any Order (whether in contract, tort (including negligence), misrepresentation, indemnity or otherwise) shall not exceed the total Fees paid or payable by Customer under the applicable Order during the twelve (12) month period immediately preceding the event giving rise to the Loss.
(b) Where Loss arises from a breach of these Master Terms that is not confined to, or does not arise solely in connection with, a single Order, the total aggregate liability of a Party shall not exceed the aggregate Fees paid or payable by Customer across all affected Orders during the twelve (12) month period immediately preceding the event giving rise to the Loss.
(c) The liability caps in this Section apply in the aggregate to all claims and shall not reset or apply separately per claim, per incident, or per indemnity.
9.2 Reduction of liability
To the extent permitted by law, a Party’s liability shall be reduced proportionately to the extent that the Loss was caused or contributed to by the acts, omissions or breach of the other Party or its Personnel.
9.3 Exclusions of liability
(a) Subject to Section 9.5, neither Party shall be liable for any Consequential Loss, however arising.
(b) Xanadu shall not be liable for any failure, interruption, defect or degradation of Vendor Products to the extent attributable to the relevant Vendor or to third-party infrastructure, platforms or services outside Xanadu’s reasonable control.
(c) In respect of Vendor Products:
(i) Xanadu’s liability is limited to the extent expressly set out in the applicable Order and any applicable Vendor Terms incorporated therein, and shall in no event exceed the amounts recoverable by Xanadu from the relevant Vendor in respect of the same matter; and
(ii) Xanadu shall have no liability under any Vendor Product Agreement entered into directly between Customer and a Vendor.
(d) Xanadu does not warrant that Vendor Products will be uninterrupted or error-free except to the extent expressly stated in the applicable Order. Vendor Products are provided on an “as is” and “as available” basis (except to the extent expressly stated in the applicable Order or Vendor Terms).
9.4 Applicable Law Limitations
If applicable law prohibits the exclusion of certain liabilities but permits their limitation, the exclusions in this Section shall not apply to that extent, and Xanadu’s liability shall be limited, at its option, to re-supplying the relevant Supplies or paying the cost of having them re-supplied.
9.5 Liabilities not excluded
Nothing in this Agreement limits or excludes either Party’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) gross negligence or wilful misconduct;
(d) any liability which cannot be lawfully limited or excluded;
(e) Customer’s payment obligations;
(f) in the case of Xanadu’s liability, Xanadu’s indemnification obligations in Section 9.6(a) below; or
(g) in the case of Customer’s liability, Customer’s indemnification obligations in Section 9.6(d) below.
9.6 Indemnification.
(a) By Xanadu. Xanadu will indemnify, defend, and hold Customer harmless from and against any and all Loss finally awarded by a court of competent jurisdiction arising from a third-party claim that Customer’s authorised use of Xanadu Products, Xanadu Materials or Deliverables (excluding Vendor Products and Third-Party Material) infringes that third party’s Intellectual Property Rights.
(b) If an infringement claim (as described in Section 9.6) arises, Xanadu may, at its option:
(i) modify the relevant item to make it non-infringing;
(ii) replace it with a functionally equivalent non-infringing alternative; or
(iii) procure the right for Customer to continue using it; or
(iv) terminate the affected Order and refund prepaid Fees for the unused portion.
(v) Sections 9.6(a) and (b) sets out Customer’s sole and exclusive remedy, and Xanadu’s entire liability, for any claim of infringement of Intellectual Property Rights by Xanadu Products, Xanadu Materials or Deliverables.
(c) Exclusions. Xanadu will have no liability under this Section 9.6 to the extent the claim arises from:
(i) modification not made by Xanadu;
(ii) combination with third-party products not authorised by Xanadu;
(iii) use outside the permitted scope; or
(iv) Vendor Products or Third-Party Material.
(d) By Customer. Customer will defend, indemnify, and hold Xanadu and its Personnel harmless from and against any and all Loss arising out of or related to:
(i) claims relating to Customer Materials;
(ii) any breach by Customer or its Personnel of any Vendor Terms (including any Vendor Product Agreement and any confidentiality obligations owed to a Vendor), or any act or omission of Customer that results in a claim by a Vendor against Xanadu;
(iii) unauthorised use of Vendor Products; or
(iv) Customer’s breach of applicable law.
(e) Process. The foregoing indemnification obligations are conditional upon the indemnified Party: (i) notifying the indemnifying Party promptly in writing of such action, (ii) providing reasonable cooperation, and (iii) allowing the indemnifying Party sole control of the defence and settlement, provided no settlement admits liability or imposes non-monetary obligations without the indemnified Party’s consent.
10 TERMINATION AND SUSPENSION
10.1 Termination of an Order for breach
(a) Either Party may terminate an Order immediately by written notice if the other Party:
(b) commits a material breach that is limited to or arises solely in connection with that Order, and fails to remedy such breach within ten (10) days of written notice requiring it to do so (where capable of remedy); or
(c) suffers an Insolvency Event.
10.2 Termination of Master Terms for breach
Either Party may terminate these Master Terms immediately by written notice if the other Party:
(a) commits a material breach of these Master Terms which is not confined to a single Order, or which affects multiple Orders, Statements of Work or Vendor Terms applicable to multiple Orders, or otherwise undermines the operation or integrity of the contractual framework as a whole, and fails to remedy such breach within ten (10) days of written notice requiring it to do so (where capable of remedy); or
(b) suffers an Insolvency Event.
10.3 Vendor-driven termination
(a) Vendor Events. Xanadu may terminate an affected Order immediately by written notice where a Vendor:
(i) terminates, suspends or materially restricts Xanadu’s rights to supply the relevant Vendor Product;
(ii) ceases to supply the Vendor Product; or
(iii) requires termination to comply with applicable law or the Vendor’s mandatory terms.
(b) Framework Impact. Where such Vendor event affects multiple Orders or Vendors and materially impairs the ability to operate the framework, Xanadu may terminate these Master Terms on written notice.
10.4 Effect of termination or expiry of an Order
(a) On termination or expiry of an Order:
(i) Xanadu will cease to provide the Supplies under that Order;
(ii) accrued rights or remedies of a Party are not affected;
(iii) Customer will pay to Xanadu all Fees in connection with Supplies;
(iv) Customer will pay to Xanadu all Expenses incurred in connection with that Order;
(v) except as expressly specified otherwise in these Terms or that Order, all licenses and similar rights granted, cease to be granted immediately; and
(vi) within a reasonable period of time after termination or expiry of the Order (not to exceed ten (10) Business Days), Customer must return to Xanadu or destroy all Xanadu Materials and Xanadu must return to Customer or destroy all Customer Materials, in each case, in connection with that Order.
(b) If Xanadu ceases to be able to supply access to Vendor Products, Xanadu will use reasonable efforts to migrate Customer to a direct relationship with the relevant Vendor.
10.5 Effect of termination of Master Terms
Notwithstanding anything to the contrary in this Agreement, upon termination or expiry of these Master Terms for any reason, all Orders and Statements of Work then in force shall automatically and simultaneously terminate with immediate effect, unless the Parties expressly agree in writing that a specific Order shall survive.
10.6 Survival
Termination or expiry of an Order or these Master Terms shall not affect any rights or obligations which have accrued prior to expiry or termination and shall not affect the continued operation of the following provisions (to the extent applicable): Sections 5, 6, 7, 8, 9, 10.4, 11, 13, 14 and this Section 10.6, or any provision of these Master Terms which is expressly or by implication intended to come into force or continue on or after the termination or expiry.
10.7 Suspension
(a) Without limiting any other remedy Xanadu may have under this Agreement or at law, Xanadu may suspend Customer’s access to the Supplies if:
(i) Customer breaches these Master Terms;
(ii) Customer breaches any Vendor Product Agreement and/or applicable Vendor Terms incorporated into an Order) or breaches any SOW;
(iii) a Vendor terminates its Vendor Product Agreement with Customer or refuses to enter into a Vendor Product Agreement with Customer;
(iv) a Vendor terminates its agreement with Xanadu;
(v) Customer has not paid Xanadu the Fees and Expenses in accordance with these Master Terms or the relevant Order, provided that Xanadu shall first have given to Customer at least seven (7) days' notice that the Supplies would be suspended if the outstanding sums are not paid in full;
(vi) Xanadu receives a notice from a third party with a legitimate interest to be protected (including any regulatory body) requiring Xanadu to cease providing the Supplies to Customer or remove any content Customer is making available through the Supplies. Subject to any contrary legal requirements, Xanadu shall provide Customer with a copy of the notice.
(b) Xanadu will restore Customer’s access to the Supplies as soon as reasonably possible once the reason for the suspension has been addressed or removed.
(c) If Xanadu suspends the supply of any Supply for a period of fifteen (15) Business Days or more, it may, by written notice to Customer, immediately terminate the Order (in whole or in part) that relates to the suspended Supply.
11 NON-SOLICITATION
(a) During the Framework Term and for a period of twelve (12) months thereafter, neither Party will solicit or entice any employee or contractor of the other Party, unless it obtains the other Party’s prior written consent.
(b) The undertakings contained in Section 11(a) constitute a separate and independent provision, severable from the other undertakings and enforceable by each Party against the other Party (as applicable), each independently of the others. If a court of competent jurisdiction finally decides any such undertaking to be unenforceable in whole or in part, the enforceability of the remainder of that undertaking or any other undertaking will not be affected.
(c) Each Party agrees that the undertakings contained in Section 11(a) are no more extensive than is reasonable to protect both Parties.
12 FORCE MAJEURE
A Party will not be in breach of these Master Terms or an Order (nor will it be liable for any such breach) as a result of any failure or delay in the performance of its obligations (other than a payment obligation) under these Terms or an Order to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event, provided that:
(a) that Party advises the other party of the details of the Force Majeure Event, and its likely effect on the performance of its obligations under these Master Terms or the Order; and
(b) that Party takes all steps reasonably necessary to recommence performance of the affected obligations and minimise the delay caused by the Force Majeure Event.
13 TAXES
(a) Fees are exclusive of Taxes, unless otherwise stated in this Agreement. Each Party is responsible for the Taxes it is legally required to pay in connection with this Agreement.
14 GENERAL
14.1 Rights cumulative
Unless expressly stated otherwise in these Master Terms, the rights and remedies provided under this Agreement are cumulative and not exclusive of any rights or remedies provided by law or any other right or remedy.
14.2 Amendments
(a) No amendment, variation or modification of these Master Terms shall be effective unless made in writing and expressly agreed by authorised representatives of both Parties.
(b) Any change to the scope, specifications, pricing, timelines or delivery of the Supplies under an order or Statement of Work must be agreed through a written change request executed by both Parties, and no such change shall take effect until the relevant change request is agreed.
14.3 Assignment and novation
(a) Any rights or obligations of Customer arising out of or under an Order or these Master Terms are not assignable, or capable of being novated, or otherwise dealt with by Customer without the prior written consent of Xanadu.
14.4 Entire agreement
(a) This Agreement supersedes all previous agreements about its subject matter. These Terms and the relevant Orders embody the entire agreement between the Parties.
(b) To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion is withdrawn. It has no effect except to the extent expressly set out or incorporated by reference in these Master Terms and the relevant Order.
(c) Each Party acknowledges and agrees that it does not rely on any prior conduct or representation by the other Party in entering into an Order and these Master Terms.
14.5 Further assurances
Customer must do all things necessary to give effect to an Order and these Master Terms and the transactions contemplated by it. Without limiting the foregoing, during the applicable Order Term, Customer will make available to Xanadu adequate information and facilities necessary to deliver the relevant Supply.
14.6 Governing law and jurisdiction
(a) These Master Terms, each Order and each SOW shall be governed by the laws of the Dubai International Financial Centre (DIFC), without regard to the conflict of laws principles.
(b) Each Party irrevocably submits to the exclusive jurisdiction of the courts of the DIFC.
(c) Notwithstanding Section 14.6(b), where an Order so specifies, any dispute arising out of or in connection with these Master Terms or that Order (including any question regarding its existence, validity or termination) shall instead be referred to and finally resolved by arbitration administered by the Dubai International Arbitration Centre (DIAC) in accordance with the DIAC Arbitration Rules, which Rules are deemed incorporated by reference into this Section. The seat of the arbitration shall be the DIFC, the tribunal shall consist of one (1) arbitrator, and the language of the arbitration shall be English. Nothing in this Section prevents either Party from seeking urgent interim or injunctive relief from the courts of the DIFC.
14.7 Severability
A clause or part of a clause of an Order or a SOW or these Master Terms that is illegal or unenforceable may be severed from that Order, SOW or these Master Terms (as applicable), and the remaining clauses or parts of the clause of the relevant Order, SOW or these Master Terms continue in force.
14.8 Subcontracting
(a) Xanadu may subcontract the performance of all or any part of its obligations under an Order or these Master Terms. Xanadu remains liable for any breach of its obligations under these Master Terms or any Order by its subcontractors, as if they were its own acts and omissions.
(b) For the avoidance of doubt, in relation to Vendor Products, the applicable Vendor is not Xanadu’s subcontractor where Customer and the applicable Vendor enter into a Vendor Product Agreement.