These Standard SAAS Terms and Conditions (these “Terms”) are entered into by and between Inaugural AI Ltd, a company incorporated and registered in England and Wales with company number 15255549 and registered office at address (“we”, “our”, “us” or “Inaugural AI”) and the client (“you”, “your” or “Client”) set forth on the Order Form between you and us (“Order Form”) to govern your access to and use of our Platform (as defined below). These Terms, the Order Form and the SLA shall be collectively referred to as the “Contract”.
Please read these Terms carefully before you sign the Order Form. We may amend these Terms from time to time as set out in Clause 17.2.
You may contact us by emailing us at tim@inaugural.ai If you wish to give us formal notice of any matter related to this Contract, please see Clause 25.
AGREED TERMS
1.1 The definitions and rules of interpretation in this Clause apply in these Terms:
Business: the business that you operate and that is the subject of your use of the Platform identified in the Order Form;
Client Customer: any individual who is a customer of the Client and is engaging with us through a Conversation;
Client Customer Personal Data: Personal Data of a Client Customer;
Client Data: all data and information that is provided to us by you, your employees, agents and contractors (either manually or via data-feed, API, web service or other automated method) under or in connection with the Contract, including the Client’s “knowledge base” of information required to execute Conversations.
Client Website or App: the website, app or other service (as is more precisely defined in an Order Form) that is owned and/or controlled by the Client and shall be used in conjunction with the Platform.
Confidential Information: any and all technical or non-technical information related to the past, current, or proposed operations, products, technology, services and business of a party (the “Discloser”) disclosed or otherwise made available in any manner whether disclosed orally, visually or through any tangible medium by the Discloser to the other party (the “Recipient”), or to which the Recipient may gain access in the performance of the Contract, which is marked as confidential or is manifestly by its nature confidential. Confidential Information may include, trade secrets and proprietary information, data, techniques, sketches, drawings, specifications, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs and software source documents, customer lists, business forecasts, sales, and marketing plans and any other similar information or data. The Client Data shall be your Confidential Information, and we both agree that the Conversations are Confidential Information.
Conversation: one or more automated messages between the Platform and a Client Customer in relation to customer services.
Custom Deliverables: the content, software and [ ] developed or created for you.
Custom Services: the services set out in the Order Form or otherwise agreed with you to be provided to develop the Custom Deliverables.
Customer Insights Report: the reports relating to your use of the Platform;
Data Protection Legislation: any laws and regulations of the UK relating to the processing of personal data including the Data Protection Act 2018, the General Data Protection Regulation 2016/679
Documentation: any documentation or policies referred to or linked to in an Order Form which sets out additional information about the Platform or the user instructions for the Platform (if any).Effective Date: the effective date identified in the Order Form.
Fees: the fees for using the Platform and for any Custom Services, as set out in the Order Form.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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 and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.
Normal Business Hours: Monday to Friday (excluding public holidays) from 9:00 a.m. to 5:00 p.m. local time based on the Client’s place of business.
Personal Data: shall have the meaning given to it in the Data Protection Legislation;
Platform: the software-as-a-service customer service platform provided by Inaugural AI and identified in the Order Form, including all software used in the provision of the service platform together with any updates and fixes made available from time to time.
Service Level Agreement (SLA): our Service Level Agreement, as may be notified to you and updated from time to time.Trade Mark: the trademarks, trade names and logos that you provide to us to use on the Platform;
Working Days: Monday to Friday excluding public holidays in England.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Contract. References to Clauses are to the Clauses of these Terms. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that entity’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract and shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision. A reference to writing or written includes email. Any phrase introduced by the words including shall be construed as illustrative and shall not limit the generality of the related general words.
2. Structure
2.1 The following order of precedence shall apply to this Contract and the documents referred to in it:
(a) the Clauses in these Terms;
(b) each Order Form, save where provisions of these Terms are specifically disapplied or varied in the Order Form, in which case the Order Form shall take precedence to these Terms in relation to the particular provisions; and
(c) the SLA.
2.2 Each Order Form:
(a) shall be entered into by you and us;
(b) forms a separate contract between the signatories; and
(c) shall incorporate these Terms.
3. Platform
3.1 We shall provide the Platform and any associated Documentation to you on and subject to the terms of the Contract.
3.2 We shall use commercially reasonable efforts to make the Platform available, except during any planned or scheduled maintenance, and shall provide the levels of support set out in the SLA.
3.3 We may, from time to time, alter or improve the Platform, provided that such alteration does not materially affect the functionality of the Platform.
4. Your Use of the Platform
4.1 Subject to your compliance with the terms of the Contract (including payment of the Fees), we hereby grant to you a non-exclusive, non-transferable right to use the Platform in conjunction with the Client Website or App during the term of the Order Form solely in relation to the Business. If you wish to amend or expand on the Business, you shall notify us accordingly and provide us with all information that we reasonably request. If we agree to the amendment or expansion, the definition of Business in the Order Form shall be deemed to be amended accordingly.
4.2 We warrant to you that:
(a) we are the authorised licensor or legal and beneficial owner of all Intellectual Property Rights in the Platform;
(b) your use of the Platform in accordance with this Contract shall not infringe the Intellectual Property Rights of any third party, and
(c) we have the full power and authority to grant to you the rights and licences under this Contract without the consent of any third party.
4.3 When using the Platform, you shall not direct the Platform to:
(a) send any unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of such solicitation;
(b) send unsolicited messages obtained from any purchased or harvested lists in which the recipient did not provide the express written consent required by applicable law in the transmission of such messages;
(c) send messages that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, group, or organisation;
(d) send messages that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by us;
(e) send messages that contain material that infringes, misappropriates or violates any Intellectual Property Rights of any party;
(f) send messages that contain a virus or any other code, program or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;
(g) impersonate, use the name of (without express permission) or misrepresent any individual, group or organization;
(h) transmit or otherwise make available any content that is false, harmful, threatening, abusive, tortious, defamatory, libelous, disparaging (including disparaging of us), vulgar, obscene, pornographic, or that promotes, furthers or incites violence, terrorism or illegal acts, or is otherwise objectionable (as reasonably determined by us);
(i) solicit personal information from anyone under 13 years of age; or
(j) upload or transmit viruses, Trojan horses or other harmful, disruptive or destructive files or post material that interferes with any third party’s uninterrupted use and enjoyment of the Platform.
4.4 This list of prohibitions provides examples and is not complete or exclusive. We reserve the right to terminate your access to your account or your ability to use the Platform if you violate these or similar prohibitions, in which case we shall provide you with two (2) days’ advance written notice.
4.5 Unless expressly permitted by the Contract, you shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) attempt to copy, modify, duplicate, create derivative works from, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
(b) access all or any part of the Platform and associated Documentation (as applicable) in order to build a product or service which competes with the Platform;
(c) use the Platform and/or any associated Documentation (as applicable) to provide services to third parties, except the Client Customers;
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform and/or any associated Documentation available to any third party;
(e) attempt to interfere with the proper working of the Platform and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Platform; and/or
(f) attempt to obtain, or assist third parties in obtaining, access to the Platform and/or any associated Documentation (as applicable), other than as provided under this Clause 4.
4.6 You shall use all commercially reasonable efforts to prevent any unauthorized access to, or use of, the Platform and/or any associated Documentation (as applicable) and, in the event of any such unauthorized access or use, promptly notify us.
4.7 You shall use commercially reasonable efforts to provide us with reasonable prior notice of any anticipated material increase in the volume of Conversations to be actioned by the Platform. If, following your delivery of such notice, we notify you that the operation of the Platform will be impacted by such increased volume, the parties will cooperate in good faith to resolve the problem and we reserve the right to increase the Fee.
4.8 You are solely responsible for all acts or omissions that occur under your account for use of the Platform. We are in no way attempting to interpret any laws, rules, or regulations for you and you are ultimately responsible to make your own informed decisions regarding your use of the Platform in respect of the operation of your Business and all laws and regulations that apply in relation to the operation of your Business.
5. Client Data
5.1 You warrant and represent that you own all right, title and interest in and to all of the Client Data . You grant to us a royalty-free, worldwide, non-exclusive licence to use the Client Data to such extent as is necessary to enable us to provide the Platform and engage in the Conversations with Client Customers. You warrant that our use of the Client Data in accordance with the Contract shall not infringe the Intellectual Property Rights of any third party.
5.2 You acknowledge and agree that the Platform, amongst other things, relies on artificial intelligence and data machine learning functionality and that such technology requires us to have ongoing access to, and the continued right to use, the Client Data in anonymized and aggregated form. You hereby grant us a non-exclusive, royalty-free, non-transferrable, sub-licensable, irrevocable, perpetual worldwide license to use the Client Data in anonymized and aggregated form for our business purposes.
5.3 You understand that we shall rely on the content of the Client Data in order to engage in the Conversations with the Customers. Accordingly, you further warrant and represent that the Client Data:
(a) shall be complete, accurate and reliable;
(b) shall not include any content that promotes fraudulent, obscene, pornographic or illegal activities; promotes violence or hatred; is discriminatory of any group of people; is sexually explicit; or is obscene, offensive, hateful or inflammatory;
(c) shall not include any content in breach of any legal obligation you have to any third party;
(d) shall not transmit or deliver viruses, malware, Trojan horses or other harmful, disruptive or destructive files or code;
(e) shall not otherwise give rise to any cause of action against us.
5.4 Unless we expressly agree to do so in the Order Form, you acknowledge and agree that we do not monitor or check the Client Data. In any case, we have no liability for any errors or omissions in the Client Data, and any losses caused to a Client Customer as a result of the Client Data.
5.5 In the event of any loss or damage to Client Data your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back up of such Client Data maintained by us. Accordingly, you shall separately maintain up-to-date copies of the Client Data.
6. Client Data Customers and Client Customer Personal Data
6.1 In performing its rights and exercising its obligations under this Contract, each of the parties shall comply with the Data Protection Legislation.
6.2 We agree that in the course of a Conversation, we may collect and process Client Customer Personal Data including any Client Customer Personal Data you request us to collect identified on the Order Form. In doing so, you are the controller and we are the processor as such terms are defined in the Data Protection Legislation.
6.3 You warrant and represent that you have notified the Client Customers that a third party may process their Client Customer Personal Data if they engage in a Conversation and that at your request, we shall transfer to you the Client Customer Personal Data, and the content of their Conversation. T Accordingly, you warrant that we may lawfully use, process and transfer the Client Personal Data in accordance with the Contract on your behalf.
6.4 To the extent that we are a processor of the Client Customer Personal Data, we shall:
(a) only process the Client Customer Personal Data in accordance with the Contract and otherwise on your written instructions, which may be specific instructions or standing instructions of general application; unless required to do so under the Data Protection Legislation.
(b) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing implement appropriate technical and organisational measures to ensure a level of security for the Client Customer Personal Data appropriate to the risk;
(c) at your request and choice either deliver up or delete the Client Customer Personal Data from our systems on termination of the Contract;
(d) ensure that individuals processing the Client Customer Personal Data for us are subject to a duty of confidence in relation to the Client Customer Personal Data;
(e) at your cost, assist you in providing subject access and allowing data subjects to exercise their rights under applicable laws;
(f) taking into account the nature of the processing and at your cost, assist you in meeting your legal obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;
(g) at your cost, make available to you all information necessary to demonstrate compliance with Data Protection Legislation ;
(h) at your cost, submit to audits and inspections by you or an agreed independent auditor to ensure that we are complying with our obligations under this Clause 6 subject to at least 10 (ten) Working Days’ notice, during our Normal Working Hours and no more than once every 12 (twelve) months; and
(i) notify you if we are requested to take any action in breach of the Data Protection Legislation that affects the Client Customer Personal Data.
6.5 You agree that in order to carry out our obligations under this Contract, we shall be entitled to engage sub-processors to process the Client Customer Personal Data but only under a written contract in compliance with the Data Protection Legislation.
7. Custom Services
We will use commercially reasonable efforts to perform the Custom Services in accordance with any specifications or any timetable agreed, provided that time for delivery shall not be of the essence.
If on completion of the Custom Services, you reasonably believe that the Custom Deliverables do not materially conform with the specifications agreed, you shall notify us and we shall repair or replace the Custom Deliverables within a reasonable period of time, and such repair or replacement shall be your sole remedy in respect of any non-conformity. We shall not be under any obligation to make any changes to the Custom Deliverables that are outside the scope of the Order Form or the agreed specification.
8. Our obligations
8.1 We shall utilize the Platform to configure and execute Conversations in accordance with the terms and conditions of the Contract, and to provide you with access to the Customer Insights Reports.
8.2 We undertake that the Platform will operate substantially in accordance with the Contract, and be configured with reasonable skill and care.
8.3 The undertakings at Clause 8.1 and Clause 8.2 shall not apply to the extent of any nonconformance which is caused by your use of the Platform contrary to our instructions, or modification or alteration of the Platform by any party other than us or our duly authorized contractors or agents. If the Platform does not conform to the foregoing undertaking, we will, at our expense, use all commercially reasonable efforts to correct any such nonconformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertakings set out in Clause 8.1 and Clause 8.2. Notwithstanding the foregoing, we:
(a) do not warrant that your use of the Platform will be uninterrupted, timely, secure or error-free; and
(b) are not responsible for the content of the Client Data or the Client Customer’s responses to or actions following a Conversation;
(c) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over third-party communications networks and facilities, including the Internet, and you acknowledge that the Platform and any associated Documentation (as applicable) may be subject to limitations, delays and other problems inherent in the use of such communications facilities, including geographical or topographical shortcomings in the network of any telecommunications network operator, network capacity, physical obstructions or atmospheric conditions and terms and conditions of the Client Customer’s telecommunication service providers.
8.4 This Contract shall not prevent us from entering into similar agreements with third parties or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.
9. Your Obligations
You shall:
9.1 provide us with all necessary cooperation in relation to the Contract; and
9.2 provide us with all necessary access to such information as may be required by us in order to use the Platform, including Client Data, security access information, and configuration services and to enable us to fulfill our obligations in these Terms and Order Forms as appropriate;
9.3 comply with all applicable laws and regulations, as well as codes and guidelines issued by a competent body or authority, with respect to the use of the Platform under the Contract;
9.4 obtain and maintain all necessary licenses, consents, and permissions necessary that may be required in relation to your Business for you to lawfully use the Platform;
9.5 participate in developing the Order Form that will define your requirements of the Platform, and perform your duties as outlined in the Order Form. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.6 ensure that your employees, agents and contractors use the Platform and any associated Documentation in accordance with the Contract, including any and all user instructions for the Platform, and you shall be responsible for any breach of the Contract by any of your employees, agents and contractors;
9.7 upon request, provide us with such information about your employees, agents and contractors as is reasonably required by us for the purposes of managing and enforcing our rights;
9.8 ensure that your network and systems comply with the relevant specifications provided by us from time to time;
9.9 be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the Internet; and
9.10 be solely responsible for any third party software or systems that you operate and that relate to your Business and access to the Platform.
10. Payment of Fees
10.1 We shall invoice you for the Fees pursuant to the payment schedule set out in the Order Form, and you shall pay the amount set out in each invoice to us within 30 days after the date of such invoice.
10.2 If we have not received payment of an invoice within 30 days after the due date, and without prejudice to any of our other rights and remedies we may, without liability to you, disable your use of and access to the Platform (including all your employees, agents and contractors), and we shall be under no obligation to provide use of or access to the Platform while the invoice(s) concerned remain unpaid.
10.3 All amounts and fees stated or referred to in the Contract:
(a) shall be payable in the currency specified in the Order Form and if none is stated, in British pounds;
(b) are non-cancellable and non-refundable except in accordance with this Contract;
(c) are exclusive of value-added and other taxes, which shall be added to our invoice(s) at the appropriate rate; 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).
10.4 You will pay or reimburse us for all relevant taxes that we are required to collect on the provision of services to you under these Terms, it being understood that this obligation is without prejudice to any statutory obligation that either party may owe to a taxing authority. In the event that we are subject to audit by any taxing authority and we shall not have collected taxes from you, you shall provide us with documentary evidence that you have paid the relevant taxes to the relevant taxing authority. We are hereby authorized to share such documentary evidence with relevant taxing authorities.
10.5 We shall be entitled to increase the Fees on the anniversary of the Effective Date on written notice to you. Invoices for use of the Platform will be adjusted on a pro rata basis (as necessary).
11. Proprietary Rights
11.1 You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights related to the Platform and any associated Documentation. Except as expressly stated herein, the Contract does not grant you any rights to, or in, our Confidential Information, Intellectual Property Rights or any other rights or licenses in respect of the Platform and any associated Documentation.
We and/or our licensors shall remain the owner of all Intellectual Property Rights in the Custom Deliverables. Subject to full payment of the Fee for the Custom Deliverables, we grant to you a non-transferable, non-exclusive licence, for the term of the Contract, to access and use the Custom Deliverables in order to access the Platform.
11.3 We acknowledge and agree that you and/or your licensors own all Intellectual Property Rights related to the Trade Marks. You grant us a non-exclusive right and licence to reproduce the trade marks on the Platform including within the Conversations and the Client Access reports. Except as expressly stated herein, the Contract does not grant us any rights to, or in, your Confidential Information or your Trade Marks.
11.4 Neither party shall represent that it has ownership of the other party’s trade marks or at any time do, or cause to be done, any act or thing contesting, or in any way impairing the other party’s right, title, and interest in such trade marks, whether or not they are registered in the jurisdictions in which the party is located or does business.
12. Confidentiality
12.1 If the parties have already entered into a nondisclosure agreement, then such nondisclosure agreement shall continue to apply and noting in this Contract shall amend its terms. Otherwise, the provisions of this Clause 12 shall apply in relation to the disclosure and use of Confidential Information. The Recipient will hold in confidence and, without the consent of the Discloser, except as permitted by Clause 12.2, will not use, reproduce, distribute, transmit, or disclose directly or indirectly, the Confidential information of the Discloser. The Recipient shall not remove any proprietary notices of the Discloser from Confidential Information.
12.2 The Recipient may disclose the Discloser’s Confidential Information:
(a) to its employees, officers, contractors, representatives, attorneys, 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; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Each party shall ensure that persons to whom it discloses the other party’s confidential information comply with this Clause 12 and shall be at all times liable for the failure of any such persons to comply with the obligations set out in this Clause 12. Without limiting the foregoing, the Recipient agrees that it will exercise at least the same standard of care in protecting the confidentiality of the Discloser’s Confidential Information as it does with its own Confidential Information of a similar nature.
12.4 Confidential Information shall not include information if, and only to the extent that, the Recipient establishes that the information:
(a) is or becomes a part of the public domain through no act or omission of the Recipient;
(b) was in the Recipient’s lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser;
(c) is lawfully disclosed to the Recipient by a third party that is not subject to any confidentiality requirement at the time it is received by the Recipient without reference to the Confidential Information;
(d) is independently developed by the Recipient; or
(e) is disclosed by the Recipient pursuant to a requirement of a governmental agency or by operation of law, provided that the Recipient shall disclose only that part of the Confidential Information which it is required to disclose and shall notify the Discloser promptly after receiving notice from such agency and prior to such disclosure in order to permit the Discloser to attempt to prevent or restrict such disclosure should it so elect. No party shall use any 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.
13. Indemnification
13.1 You shall defend and hold harmless us and our affiliates, directors and employees from and against any and all liabilities, damages, losses, costs and expenses (including legal expenses) suffered or incurred arising from any third party or governmental claim, action, or proceeding alleging that:
(a) our use of any Client Data and/or Trade Mark infringes any Intellectual Property Rights;
(b) the Platform infringes any Intellectual Property Rights arising from your unauthorized modification or combination of the Platform with a product or service not authorized by us to be combined with the Platform; or
(c) any claim from a Client Customer based on the information in the Client Data.
13.2 We shall defend and hold harmless you and your affiliates, directors and employees from and against any and all liabilities, damages, losses, costs and expenses (including legal expenses) suffered or incurred arising from any third party or governmental claim, action, or proceeding alleging that your use of the platform in accordance with the Contract infringes any Intellectual Property Rights.
13.3 If all or any material part of the Platform is, or in our opinion, may become the subject of an infringement claim, we may at our own expense promptly:
(a) replace the Platform with a compatible, functionally equivalent, non-infringing alternative;
(b) modify or take other action so that the Platform provides you with the same function or benefit without infringing upon the rights of any third party;
(c) procure the right for you to continue accessing and using the Platform; and/or
(d) discontinue the use of and access to the Platform and reimburse you for any payment made in advance for such discontinued use of and access to the Platform that cannot be delivered, all without any additional cost to you, and in our sole and absolute discretion.
13.4 If either party wishes to rely on an indemnity under this Clause 13, it shall:
(a) promptly notify the other party;
(b) not make any admission of liability, agreement, settlement or compromise in relation to a claim without the other party’s prior written consent;
(c) allow the other party the exclusive right to defend or settle the claim; and
(d) provide all reasonable assistance in relation to the claim.
13.5 The indemnification obligations of this Clause survive termination of this Contract.
14. Disclaimer of Warranties
14.1 Except as set out in the Contract, the Platform and any associated Documentation are provided “as is” and to the fullest extent permissible by law we hereby disclaim all warranties, whether express, implied, statutory or other and we specifically disclaim all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice.
14.2 You warrant that you have not relied on any oral representation made by us or on our behalf, or on any descriptions, illustrations or specifications contained in any materials, including online materials, produced by us which are only intended to convey a general idea of the Platform. You confirm that in your opinion, the Platform is fit for your purposes.
15. Limitation of Liability
15.1 Subject to Clauses 15.2 and 15.5, our aggregate liability under or in connection with this Contract or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, shall not exceed the total amount paid by you to us during the twelve-month period preceding the event giving rise to the claim.
15.2 Subject to Clause 15.1, our aggregate liability under or in connection with any Custom Deliverable and/or Custom Services this Contract or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, shall not exceed the Custom Fee paid during the previous 12 -month period.
15.3 We shall not be liable to you for any use, interruption, delay or inability to use the Platform, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information.
15.4 Subject to Clause 15.5, we shall not be liable to you for:
(a) loss of profits;
(b) loss of business;
(c) loss or corruption of data or information;
(d) business interruption;
(e) loss of or wasted staff or management time;
(f) any kind of special, indirect, consequential loss or pure economic loss; and/or
(g) error, omission, failure to operate, loss or damage arising as a result of any error, omission or inaccuracy in the Client Data
The parties agree that the provisions of this Clause 15.4 are severable.
15.5 Nothing in this Contract limits or excludes our liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation and/or any other liability that cannot lawfully be excluded under English law.
.15.6 Each party acknowledges and agrees that the provisions of this Contract allocate the risks between us and you
16. Term and Termination
16.1 The Contract shall commence on the Effective Date.
16.2 The term of each Contract is set out in the Order Form, and each term shall automatically renew for a further term, of the same duration unless either party serves notice in writing cancelling the automatic renewal at least ninety (90) days’ before the expiration of then current term.
16.3 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 any other term of these Terms, including a failure to pay any sum when due, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms;
(c) the other party enters into liquidation compulsorily or voluntarily or compounds with its creditors or has an administrator, receiver or administrative receiver appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt (except where any action occurs for the purposes of reconstruction or amalgamation whilst solvent).
16.4 In the event any applicable law or regulation is implemented or modified with the effect that it is no longer commercially viable or possible for us to provide you with access to or use of the Platform, without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect upon giving 14 days’ written notice to you.
16.5 On termination of the Contract for any reason:
(a) all licences granted to you under these Terms shall immediately terminate;
(b) we shall cease to provide you with use of or access to the Platform;
(c) each party shall return and make no further use of any equipment, property, Documentation (as applicable), Confidential Information and other items (and all copies of them) belonging to the other party, save that we shall be entitled to retain and use the Client Data, the Conversations, and any aggregated and anonymized Client Customer Personal Data for our business purposes;
(d) all outstanding sums payable by you to us will become immediately due and payable;
(d) subject to any applicable legal obligations we may have, we reserve the right to delete Client Data on our systems. You may notify us in writing within 21 days to request a copy of Client Data on our systems prior to its deletion. We shall use commercially reasonable efforts to deliver a copy of the Client Data to you within 30 days of our receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall bear the full cost associated with providing such copy of Client Data (e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages which existed at or before the date of termination, shall not be affected or prejudiced; and
(f) we may incur technical and administrative fees in order to comply with any services required by you following termination, and these will be invoiced to you on termination.
16.6 If you have terminated the Contract under Clause 16.3, we will refund to you the pro-rated amount of any and all fees prepaid by you in respect of any periods of time which are after the date of such termination.
17. Force Majeure
We shall not be in breach of the Contract, or be liable for delay in performing, or failure to perform, any of our obligations under the Contract if such delay or failure result from events, circumstances or causes beyond our reasonable control, including war, invasion, armed conflict, terrorism, strike, lock-out, labour dispute, riot, civil commotion, accident, act of God, fire, flood and storm, failure of supply or networks, pandemic or epidemic. We shall promptly notify you of such an event and its expected duration. In such circumstances the term of the Order Form shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one month, you may terminate the Contract by giving five (5) days’ written notice to us.
18. Marketing Rights
In consideration for our provision of the Platform and any associated Documentation, you hereby grant us a non-exclusive, worldwide, irrevocable and royalty-free license to use your Trade Mark and to refer to your use of the Platform in our sales and promotion material for the duration of the term of the Contract and five (5) years thereafter.
19. Variation
19.1 No variation of the Order Form shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
19.2 We have the right to revise these Terms from time to time. If we make any material changes to these Terms as they apply to the Order Form during the term of this Contract, we will provide you with no less than ten (10) days’ notice of the changes. Your use of the Platform after the effective date of the new terms and conditions will constitute your acceptance of the same. If you do not wish to continue using the Platform under the new terms and conditions, you may terminate the Contract.
20. No waiver
20.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and Remedies
The parties acknowledge that:
21.1 any use or threatened use by you of the Platform in a manner inconsistent with the Contract;
21.2 any use or threatened use by us of Client Data in a manner inconsistent with the Contract; or
21.3 any misuse by one party of the other party’s Confidential Information, may cause immediate irreparable harm for which there may be no adequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to apply for immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach. The parties agree and stipulate that the party seeking such relief may be entitled to such injunctive relief without posting a bond or other security. 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.
22. Severance
22.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23. Entire Agreement
23.1 The Contract and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
23.2 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
24. Assignment
24.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Contract.
24.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract, provided that we give you prior written notice of such dealing.
25. No Partnership or Agency
25.1 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Nothing in this Clause shall prevent or restrict us from responding to a Client Customer in a Conversation as your representative.
26. Third-Party Rights
No one other than a party to the Contract and their successors and permitted assignees shall have any right to enforce any of its terms.
27. Notices
27.1 Any notice required to be given under the Contract shall be in writing, delivered to the address in the Order Form or any other address provided for such purpose and shall be either:
(a) delivered by hand;;
(b) sent by prepaid first-class post or recorded delivery post;
(c) sent by email.
27.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9:00 a.m. on the first day following delivery). A correctly addressed notice sent by prepaid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
28. Governing Law; Jurisdiction
28.1 In the event that any dispute may arise under or in connection with the Contract, which is not settled between our commercial department and your appropriate representative, the parties shall first seek to resolve the dispute by negotiations between senior executives who have authority to settle the controversy. When a party believes there is a dispute relating to the Contract or any Order Form, the party will give the other party written notice of the dispute. The senior executives shall meet at a mutually acceptable time and place within fifteen (15) day after the date of the notice to exchange relevant information and to attempt to resolve the dispute.
28.2 All offers, promises, conduct and statements, whether written or oral, made in the course of the negotiations by any of the parties, their agents, employees, experts and attorneys, are confidential, privileged and inadmissible for any purpose, including impeachment, in any proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
28.3 If a dispute has not been resolved within sixty (60) days after the original notice of a dispute, or if a party hereto in good faith believes that the dispute cannot be settled amicably between the parties within a sixty (60) day period, then either party may seek to have the dispute resolved by a court of competent jurisdiction pursuant to Clause 28.4.
28.4 Nothing in this Clause 27 shall prevent a party from taking legal action to enforce any infringement of its Intellectual Property Rights.
28.5 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
Last updated Aug 2024