Terms & Conditions
1.1 These terms and conditions ("Conditions") shall govern the agreement between xCulture ("us" or "we") and the individual or organisation applying for the provision of the Goods or Services ("you").
1.2 Our correspondence address is One Greenwich Quay, London SE8 3EY.
1.3 You can contact us by email via xculture.co.uk/contact, telephone +44 (0)845 174 3534
1.4 We explain in the headings what each clause covers. These headings are for guidance only and are not intended to be legally binding.
1.5 These Conditions take precedence if inconsistent with the material on our Website.
1.6 The following have particular meanings in these Conditions:
- "Acceptable Use Policy" means our guidelines for acceptable use made available at http://xculture.co.uk/legal/aup which may be amended from time to time;
- "Agreement" means the General Terms and the Specific Terms applicable to the Services which you have chosen together with the Fair Use Policy and any other documents referred to herein;
- “Cancellation Period” means the period in which You may terminate the contract without incurring obligations and/or associated charges as set out under statute;
- "Data" includes information, documents, text, software, music, sound, photography, messages, and other material of any kind in any form;
- "Goods" means the goods described on the Website and which we agree to sell to you;
- "Internet" means the global data network comprising interconnected networks to which we are connected and provide access to you via the Services;
- "Personal Data" means Data about any identified or identifiable living person;
- "Registry" means either Nominet UK Limited, CentralNIC Limited or Tucows Inc, or any other domain names registry that we choose to use from time to time;
- "Regulations" means the Consumer Protection (Distance Selling) Regulations 2000;
- "Services" means the services described on the Website (including access to the Website and Control Panel) and which we agree to provide to you;
- “Start Date” means when either (i) We have sent you confirmation by email that we have activated the Service(s) or (ii) when You first start to use the Service(s), whichever of these happens first; and
"Website" means our web presence at xculture.co.uk and other locations we advertise from time to time.
2.2 Any renewal of the Services will in any event be subject to our then current Conditions.
3.1 This Agreement will not start until We have completed a number of checks including (but not limited to) geographical coverage, credit, telephone line and an activation check. If following our checks, We are satisfied that we are able to provide the Service(s) the Agreement will commence on the Start Date, although Our obligations will be subject to clause 5. However, Your obligations to us regarding any Goods will start the day you receive that Goods pursuant to clause 6.
3.2 For the purposes of the Regulations:
3.2.1 The supplier shall be xCulture;
3.2.2 The address of the supplier shall be the correspondence address as set out in clause 1.2 above;
3.2.3 Prices on the Website are updated periodically and cannot be guaranteed for any period of time and every effort is made to ensure prices are correct at the point at which the consumer places an order.
3.2.4 Any complaints should be sent in writing to the supplier's correspondence address.
3.4 A consumer will, subject to any exceptions or exclusions set out in the Regulations, be entitled to cancel the Agreement by serving a written notice of cancellation on us at any time during the following Cancellation Periods:
3.2.1 In the case of Goods, within seven working days after the day on which the consumer receives the Goods;
3.2.2 In the case of Services, within seven working days after the date you enter into a contract with us.
3.4 In the event of cancellation by the consumer Goods should be returned to the supplier's correspondence address. The consumer will be liable for the costs of returning such Goods or the costs of the supplier in recovering such Goods unless the consumer has a right to reject the Goods under a term of these Conditions or under statutory right (including any right under the Unfair Terms in Consumer Contract Regulations).
3.5 The consumer will not be entitled to cancel any contract for the supply of Services once the performance of the Services has begun.
3.6 Please note that we begin to perform certain Services, such as registration or renewal of certain domain names and website hosting, within 24 hours after you place your order.
4.1 You must:
4.1.1 keep your username and password secure (and we may change these at any time for good reason);
4.1.2 if requested use your username and password when giving instructions (and we are authorized to comply with instructions containing your username and password);
4.1.3 take reasonable steps in respect of matters in your control to minimize any risk of security breaches in connection with the Services;
4.1.4 notify us of any unauthorised access to your account which you believe may affect the overall security of our systems; and
4.1.5 comply with our security checks.
5.1 We will supply the Services with reasonable skill and care.
5.2 However, we do not guarantee:
5.2.1 that the Services will be uninterrupted, secure or error-free; or
5.2.2 that any Data generated, stored, transmitted or used via or in connection with the Services will be complete, accurate, secure, up to date, received or delivered correctly or at all.
5.3 We do not provide a back-up of your Data or guarantee the integrity of your Data; however, we will use our reasonable endeavours to provide copies of Data for disaster recovery purposes.
5.4 We may have to suspend the Services for repair, maintenance or improvement without prior notice. If so, we will restore them as quickly as is reasonably practicable.
5.5 Specific Conditions on the Provision of Telephony Services and Emergency Calls
By purchasing our Telephony Services (VoIP) you confirm that you understand that our services:
5.5.1 may not offer all of the features you may expect from a conventional phone line;
5.5.2 may sometimes be unavailable as a result of things over which we have no control, for example, the weather, power disruptions and failures of your internet service provider (ISP) or broadband connection and you understand that in such circumstances all services (including 999/112 public emergency call services) will also be unavailable;
5.5.3 Where you use xCulture VoIP Goods and Services not in conjunction with xCulture broadband Goods and Services (this typically being a router and broadband connection), there may be a greater likelihood of connectivity problems. These problems may affect quality of service, as well as reliability and robustness of service available via your xCulture VoIP package.
5.5.4 Connectivity to the public emergency services is subject to 5.5.2 above and, the phone number and location details will be provided only to the extent that is technically feasible. As a result, you may have to provide your location information and phone number verbally to the operator.
5.5.5 Where you use your xCulture VoIP service outside of mainland England, Wales, Scotland and Northern Ireland, you may not be connected to the domestic emergency services upon dialling the appropriate emergency number.
5.5.6 For each xCulture VoIP extension or trunk that you utilise, you must register with Us the physical location where you will be using the Service. Your initial location will be registered as a part of subscribing to xCulture Services. It is your responsibility to maintain the accuracy of your location address via your online account if there are any changes. If you do not update us with changes, it may or may not be possible for emergency operators and authorities to identify your location and phone number when you dial 999/112. When you dial 999/112 you will need to state your location and phone number promptly and clearly, as emergency operators and authorities may not have this information.
5.5.7 Emergency operators and authorities may or may not be able to identify your phone number in order to call You back if the call is unable to be completed, is dropped or disconnected, or if You are unable to speak to tell them your phone number and/or if the Service is not operational for any reason. Emergency operators and authorities may also not be able to hold your line open in the event that You hang up.
5.5.8 You agree to inform potential users of the Services of the above limitations and You understand and accept that you should always have an alternative means of accessing 999/112 emergency services.
5.5.9 If xCulture suspends or terminates the Service You may NOT be able to dial 999/112. In the event that You do not have any remaining credit on your xCulture account, You will still be able to make 999/112 calls.
6.1. Delivery Dates & Payment
6.1.1. Dates for Delivery and installation are estimated only and cannot be guaranteed.
6.1.2 Payment for Goods supplied by us is pursuant to clause 18.
6.2. Risk and Title to Goods
6.2.1 Risk shall pass to you on delivery, but the Goods shall remain our property until such time as full payment has been received.
6.2.2 You must inspect the Goods immediately upon receipt and raise a return under our returns management process by contacting technical support via email or telephone. Damaged or faulty Goods cannot be returned without a valid returns reference number.
Once we notify you that the Goods are ready for delivery or tending delivery of the Goods you shall agree to accept delivery of the Goods forthwith. If you fail to give proper instructions (a correct location being the minimum proper instructions) or to accept delivery as aforesaid you shall be deemed liable for all costs incurred by us as a result of such failure which shall become immediately due and payable on demand but such liability shall not affect your obligation to purchase the Goods or our right to damages for breach of such obligation.
6.4. Damage to Goods in transit
6.4.1 We shall have no liability in respect of Goods lost or damaged in transit unless and until you note such loss or damage on the delivery receipt and gives notice thereof to us and the carrier within five working days of delivery or shorter period as may be required by the carrier’s conditions of carriage.
6.4.2 Our liability in respect of Goods lost or damaged in transit shall be limited to replacing such Goods.
6.5. Guarantee and Exclusion of Liability for Goods
6.5.1 Goods supplied by us typically carry a 1 year guarantee provided by the manufacturer, unless otherwise stated.
6.5.2 You shall not be entitled to claim under the guarantee unless the Goods have at all times been stored and used in a proper manner in proper conditions in accordance with any instructions supplied as to their use and with normal practices relating to Goods of the type in question.
6.5.3 You shall give immediate notice to us of any defects in the Goods falling within the guarantee.
6.5.4 Our liability under the guarantee is limited to the replacement of the defective item or to the repair of any defect caused by defective workmanship. We shall not be liable for any loss of profits or damages or expenses occasioned by such defects.
6.5.5 Save as aforesaid we give no guarantee as to the Goods but we will use our best endeavours to secure for you the benefit of any guarantee, warranty or assurance provided by the manufacturer of the Goods.
6.5.6 We shall have no further liability in respect of the Goods or any other defects therein (including liability for negligence) and all conditions and warranties whether express or implied by law as to the quality of the Goods or their fitness for a particular purpose or as to the design, workmanship and manufacture thereof and the materials used therein or as to the validity of patents or licences or otherwise in any way are hereby expressly excluded except to the extent that this paragraph may be held not to satisfy any requirement of reasonableness imposed by the Unfair Contract Terms Act 1977 or any statutory modification or re-enactment thereof.
6.5.7 We shall have no liability for any information or advice given in connection with the supply of Goods.
6.5.8 Except to the extent that this paragraph may be held not to satisfy any requirement of reasonableness imposed by the Unfair Contract Terms Act 1977 or any statutory modification or re-enactment thereof we shall not be responsible for any injury, damage or loss caused directly or indirectly by the Goods whether as a result of their operation or use or otherwise and whether as a result of any defect therein or otherwise and the customer shall indemnify the Company against any claim ensuing from any such injury damage or loss.
6.5.9 Without prejudice to the generality of the foregoing we shall not be liable for any consequential loss including but not limited to loss of profits.
6.7. Sale or Return
Title to any Goods supplied on a ‘Sale or Return’ basis shall pass to the customer in accordance with Rule 4, Section 18 of the Sale of Goods Act 1979 but the risk in any such Goods shall pass to the customer in accordance with clause 6.2 hereof. You shall be deemed to have purchased any such Goods unless they are received by us within 30 days after delivery to you and at the expiration of such period full payment will become immediately due.
6.8.1 Where you receive Goods as a Consumer, pursuant to the Distance Selling Regulations, you are required to take reasonable care of Goods you intend to return whilst in your possession.
6.8.2 Where you receive Goods not as a consumer (that is, within the course of a trade or business) no Goods supplied by us shall be accepted for replacement without our prior consent. You must take reasonable care of such Goods whilst in your possession. This does not affect your statutory rights.
6.9. Overseas Customers
Unless otherwise agreed with us in writing you shall be responsible for all duties, levies, imposts, taxes or other liabilities arising on the exportation of the Goods from the United Kingdom and importation of the Goods overseas.
xCulture are committed to providing excellent service and endeavour to deal with any complaint fairly and within a reasonable period of time. However, should a customer remain dissatisfied with any aspect of our service, they are welcomed to contact us whereupon we will do our utmost to resolve the problem as quickly as is reasonably practicable. We operate a complaints procedure to help ensure that any complaints are dealt with efficiently and to your satisfaction.
If you have a problem with the way we have sold, provisioned or delivered the service to you, you should:
- In the first instance, telephone us on +44 (0)845 174 3534 or write via email via xculture.co.uk/contact. We aim to respond to you within 24 hours. Please ensure you retain the reference number for your conversation. Our customer service staff will do their utmost to successfully resolve any problems at that point. If, however, your problem cannot be resolved during the phone call, we will agree a course of action with you. If you remain unhappy with the way in which your complaint has been handed in the first instance, you may contact the Customer Service Manager via email via xculture.co.uk/contact mentioning your case reference number. They will respond and aim to resolve your complaint within 48 hours.
- If the Customer Service Manager is unable to resolve the issue to your satisfaction, you may escalate your concern to the Commercial Director and again if unsuccessful, to the Managing Director by emailing via xculture.co.uk/contact. In both cases, they will aim to respond to you within 48 hours.
Please note that in all cases, we ask that you mention your incident reference number in all correspondence, and that you work with our management team to resolve your concern. In the unlikely event that your complaint has not been resolved by xCulture to your satisfaction within a period of eight weeks, or if during the process of investigating your complaint you believe the situation has reached a deadlock, you may refer your complaint to CISAS for independent consideration. CISAS will make an independent decision based entirely on the merits of the complaint.
Customers may contact CISAS directly:
24 Angel Gate
or via their website: http://www.cisas.org.uk/
8.1 You must comply with our reasonable instructions and requests concerning the Services.
8.2 You must provide us with up to date contact details of one or two named representatives with whom we are authorised to deal (including email addresses) and promptly notify us of any changes. We rely on this information for various reasons including the transmission of renewal notices and other important information concerning the Services.
8.3 You must comply with our Acceptable Use Policy and bring it to the attention of your authorised users.
8.4 You are responsible for all persons who use your username and password to access the Services, whether authorised or not, unless acting on our behalf.
8.5 There is a risk that Data generated, stored, transmitted or used via or in connection with the Services may be irretrievably damaged or lost if there is a fault or on suspension or termination. You must frequently back-up all such Data that you wish to save.
9.1 You must refrain from transferring any illegal material or engage in unlawful activities via your use of the Services.
9.2 You must refrain from sending menacing, offensive, defamatory, obscene, indecent or abusive messages or telephone calls whilst using the Services.
9.3 You must not use or permit the usage of the Services in a manner that is inconsistent with any and all applicable laws and regulations.
9.4 You must not make available or upload Data via your use of the Services that contain a virus, worm, trojan or other malicious Data or download any disabling or harmful devices.
9.5 You must not use the Services to send bulk unsolicited commercial emails or telephone calls.
9.6 You warrant that your use of the Services will not infringe any third party intellectual property or other rights.
9.7 You must not embark on any course of action, whether by use of your website, telephone or any other means, which may cause a disproportionate level of activity (for example, causing mail bombs, denial of service attacks or encouraging large numbers of inbound phone calls) without providing us at least seven day's prior notice in writing. If you give notice or we otherwise become aware of such disproportionate use we may:
9.7.1 move your service to a dedicated service and charge our then current rate as detailed on our Website; or
9.7.2 terminate some or all of the Services forthwith.
9.8 For an Internet Telephony Service, we consider the use of more than 2 concurrent channels per phone number to be a disproportionate level of activity.
10.1 It is your responsibility to ensure that "Content" (meaning Data placed on our servers by you or on your behalf or third party data facilitated by you, for example, chat rooms or discussion groups) is "server-ready" (including virus free) and will function satisfactorily.
10.2 You bear sole responsibility for all Content. We do not, and are not obliged to, check Content. Our rights to remove and take other steps in relation to Data are without prejudice to this sub-clause 10.2.
11.1 You are bound by all present and future applicable terms and conditions of the relevant Registry. These are available at http://xculture.co.uk/legal/registryterms.
11.2 You hereby grant us the authority to act as your agent in relation to the registration of your domain name with a Registry.
11.3 Domain names that are not renewed will be cancelled.
11.4 With respect to renewal of domain names, we will:
11.4.1 notify you of any renewal notices received by us; and
11.4.2 use our reasonable endeavours to renew domain names which by the renewal date you have specifically asked us in writing to renew.
11.5 There is no charge for the transfer of your domain name to another Internet service provider. However you agree that we do not have to transfer your domain names to a new Internet service provider until you have paid all outstanding debts to us.
12.1 If you subscribe to our email protection services (e.g. virus or spam filtering) we will use our reasonable endeavours to detect and, if appropriate, filter all viruses and other unwanted email identified from time to time when attached to incoming or outgoing emails (as subscribed), however, we cannot guarantee a 100% accuracy in our virus or filtering systems.
13.1 We may access, copy, preserve, disclose, remove, suspend or delete any Data:
13.1.1 if we are required to do so by applicable law or competent authority; or
13.1.2 for the purposes of registration of domain names with a Registry; or
13.1.3 if it is otherwise permitted under these Conditions; or
13.1.4 if such Data is prohibited under these Conditions.
14.2. 1. Data Retention
All Personal Data is retained and otherwise handled in a manner fully compliant with principle 5 of the Data Protection Act 1998.
4.2.2 Personal Data which is retained by xCulture
220.127.116.11 In relation to VoIP Services provided by xCulture, We store voicemail, call recordings, call data records, invite logs, invoices and received faxes.
18.104.22.168 In relation to web hosting Services provided by xCulture, We store home directories and web logs.
22.214.171.124 In relation to email Services provided by xCulture, We store POP3 / IMAP mailboxes, exchange mailboxes, mail logs and stale mailboxes - a stale mailbox being one where You have deleted the mailbox from the Control Panel but the emails and files remain on disk.
4.2.3 Period of retention of Personal Data
126.96.36.199 Call records will be retained for 12 months - voicemail , voicemail for old and new customers, received faxes and call recordings will all be kept for a period of 2 weeks.
188.8.131.52 In the case of email Services, mail logs will be kept for a period of 30 days.
184.108.40.206 In the case of web hosting Services, web logs are deposited each night in customer home directories, the extent being determined by the confines of normal user quotas.
15.1 Nothing in these Conditions in any way excludes or restricts our liability for negligence causing death or personal injury or for fraudulent misrepresentation or for anything which may not legally be restricted. Nor does it affect consumers' statutory rights.
15.2 Our liability in contract, tort (including negligence) or otherwise in connection with these Conditions for any one event or a series of events is limited to the price of the Goods, or 125% of the payment we received from you for the Services in the 12 months before the event(s) complained of.
15.3 In no event (including our own negligence), and even if we have been advised of the possibility of such losses, will we be liable for any:
15.3.1 economic loss (including, without limitation, loss of revenue, profit, contract, business or anticipated savings);
15.3.2 loss of goodwill or reputation;
15.3.3 special, indirect or consequential loss; or
15.3.4 damage to or loss of Data.
15.4 We have no liability for goods and services provided by third parties.
15.5 To the extent allowed by law, we exclude all conditions, terms, representations and warranties, whether imposed by statute or by law or otherwise, that are not expressly stated in these Conditions including, without limit, the implied warranties of satisfactory quality and fitness for a particular purpose. Consumers' statutory rights are unaffected.
16.1 You will indemnify us against all claims, damages, liabilities, costs (including reasonable legal fees) directly or indirectly related to your registration of or use of your domain names, the use of the Goods, your use of the Services or breach by you of these Conditions.
17.1 You must pay the fees (together with VAT and any applicable taxes) specified on our Website when you order Goods or order or renew any Services.
17.2 Payment for Goods may be made:
17.2.1 by Direct Debit, cheque, BACS, credit card or debit card; and
17.2.2 in advance or, if we agree to credit terms, within 14 days of our invoice.
17.3 Payment for the Services may be made:
17.3.1 monthly or annually by PayPal, standing order, credit card or debit card; and
17.3.2 annually by PayPal, Standing Order, cheque, BACS, credit card or debit card; and
17.3.3 in advance or, if we agree to credit terms, within 14 days of our invoice.
17.4 Payment must be made without deduction or set-off.
17.5 All fees are non refundable unless otherwise stated.
17.6 All fees remain payable where we suspend the Services in accordance with these Conditions.
17.7 We may impose a credit limit on your account and/or require a deposit as security for paying bills.
17.8 For the avoidance of doubt, Services purchased which are subject to advanced payment (as clearly described on the relevant product page of the Website) and are not cancelled within the Cancellation Period are not refundable and associated monies shall be used by Us to discharge our administrative expenses arising out of the termination of the Agreement.
18.1 All Services paid for either annually or monthly will be subject to initial contract periods of 12 months or 90 days respectively, and shall continue thereafter on a rolling monthly basis unless and until terminated in accordance with clause 18.2 and 18.3.
18.2 Subject to clause 18.1, either party may terminate this agreement (as regards some or all of the Services) at any time for any reason by giving to the other 30 days written notice.
18.3 We may terminate this agreement (as regards some or all of the Services) or suspend some or all of the Services immediately on written notice:
18.3.1 if you breach any the terms and obligations under these Conditions and, if remediable, having received from us a written notice stating the intention to terminate these conditions if not remedied, fail to remedy the breach within 14 days;
18.3.2 if you are subject to a resolution for winding up or a petition for bankruptcy or liquidation or there is a proposal or you enter into any arrangement or composition with your or for your creditors or a receiver or liquidator or trustee in bankruptcy is appointed over you or any of your assets or any similar circumstances; or
18.3.3 if we are required to do so by a competent or regulatory authority.
18.4 On termination of this agreement or suspension of Services for any reason:
18.4.1 we will immediately stop supplying, and will terminate access to, the relevant Services. This may involve irretrievable damage to or loss of Data generated, stored, transmitted or used via or in connection with the Services and / or we may destroy any such Data;
18.4.2 all licenses granted by us to you will terminate;
18.4.3 any fees due remain payable and, if already paid, will be non-refundable unless you have cancelled this agreement in accordance with clause 3.1;
18.4.4 your accrued rights and liabilities will be unaffected.
18.5 xCulture reserves the right to terminate this Agreement without notice upon any of the following events:- (a) the Charges and/or Additional Charges are outstanding for more than 20 calendar days; (b) the Customer is in breach of his obligations as set out in Clause 8.
19.1 We both agree not to use for any purpose apart from this agreement or disclose any Confidential Data received from the other party. "Confidential Data" means Data identified as, or which clearly is, confidential.
19.2 This clause does not apply to Data which:
19.2.1 enters the public domain other than through breach of this clause;
19.2.2 is or becomes independently known to the receiving party free from any confidentiality restriction;
19.2.3 is required to be disclosed by applicable law or competent authority;
19.2.4 is reasonably disclosed to employees, suppliers or others for the proper performance of these Conditions;
19.2.5 is reasonably disclosed to professional advisers; or
19.2.6 we are otherwise permitted to disclose in accordance with these Conditions.
20.1 You should send any notices under these Conditions to the correspondence address or email address given at the top of these Conditions.
20.2 We shall send any notices in accordance with the most recent contact information which you have provided to us.
20.3 Notices may be sent by hand, recorded delivery, fax or email and shall be deemed to be received:
20.3.1 by hand - when delivered provided handed to a senior employee;
20.3.2 recorded delivery - five days after posting;
20.3.3 fax - when the sender receives an error-free transmission report; or
20.3.4 email - on the day sent unless the contrary is proved.
21.1 These Conditions represent the entire agreement of the parties relating to its subject matter. It supersedes all prior agreements and representations (unless fraudulent) and you acknowledge that no reliance is placed on any representation made but not embodied in these Conditions, save for those made fraudulently. We are not bound by, nor should you rely on, any oral representations or representations by any agent or employee of any third party you may use to apply for our Services.
21.2 If any part of these Conditions is deemed void for any reason, the offending words shall be deemed deleted and the remainder shall continue in full force.
21.3 You may not assign these Conditions or subcontract or resell any of the Services without our prior written consent. We may assign these Conditions or subcontract any of the Services.
21.4 We shall not be liable for failure to perform or delay in performing any obligation under these Conditions if the failure or delay is caused by any circumstances beyond our reasonable control, including but not limited to failure of any communications, telecommunications or computer system.
21.5 No firm, person or company which is not a party to these Conditions shall have any right under the Contract (Rights of Third Parties) Act 1999 to enforce any provision of these Conditions.
21.6 The failure to exercise or delay in exercising a right or remedy under these Conditions shall not constitute a waiver of the right or remedy.
21.7 Nothing in these Conditions shall be construed as creating a partnership or joint venture of any kind between us.
22.1 This agreement is governed by English law and is subject to the exclusive jurisdiction of the courts of England & Wales.