TERMS AND CONDITIONS
Definitions and interpretation
1.1
The following definitions shall apply in this Agreement:
Acceptance: That all or part of the Services or Deliverables comply with the Acceptance Criteria and are accepted under the terms of this Agreement.
Acceptance Criteria: The criteria must be met for some or all the Services and Deliverables to be accepted, as set out in a Statement of Work(s) and/or Order Form(s), or at clause 5, as applicable.
Agreement: These terms and conditions and all Statements of Work/Order Form(s) agreed upon in writing between the parties under it.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Hours: The period from 9.00 am to 5.30 pm local UK time on any Business Days.
Change(s): A modification or modifications to the Services made pursuant to a Change Request.
Change Control Procedure: The procedure for making amendments to this Agreement, as set out in the clause 9 (Change Control Procedure).
Change Request: A request from either party to the other party to make Changes to the Services.
Charges: The charges payable by the Customer for the provision of the Services, as set out in each Statement of Work and/or Order Form, or as otherwise agreed in writing, and which may vary from time to time pursuant to the terms of this Agreement.
Confidential Information: Any and all confidential and proprietary information (whether technical, commercial, financial or of any other type) in any form disclosed or acquired under, according to or in connection with this Agreement, including but not limited to (i) on the part of the Customer, the Customer Materials (ii) on the part of the Supplier, Supplier IP (iii) any information relating to the disclosing party’s (a) services business, suppliers, partners, customers, operations, plans, market opportunities, strategies, customer lists, commercial relationships, marketing, sales materials and general business affairs (b) processes, formulae, methods, plans, strategy, products, product information, Intellectual Property Rights including know-how, design rights, trade secrets, and other technical information; and (iv) Deliverables including any data, results, information or reports and any Intellectual Property Rights that subsist therein, generated, created or developed in the performance of the Services.
Configured Platform: the infrastructure and cloud computing platform and runtime environment configured and deployed by the Supplier to support the Customer’s workflows.
Customer: has the meaning set forth in the applicable Order Form.
Customer Materials: The content, documents, information, items, data and materials in any form (whether owned by the Customer or a Third Party), which are provided to the Supplier by the Customer for the Supplier, including the Intellectual Property Rights therein, to use to deliver the Services, and as may be further detailed in a Statement of Work and/or Order Form.
Data Protection Laws: All applicable laws in relation to the processing of personal data and privacy including but not limited to (i) the Data Protection Act 2018; (ii) the UK GDPR (as defined in section 3(10) and supplemented by section 205(4)) of the Data Protection Act 2018); (iii) the Law Enforcement Directive (Directive (EU) 2016/680); (iv) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) including any applicable national implementing law as amended, updated or replaced from time to time.
Deliverables: The output to be provided by the Supplier in connection with the Services, as set out in the Statement of Work/Order Form, or otherwise agreed in writing between the parties, including the Configured Platform.
Documentation: has the meaning in the Platform Subscription Agreement.
Effective Date: The date of last signature to the Order Form.
Good Industry Practice: The exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstance.
Fault: The material non-compliance of some or all of the Services and/or Deliverables with the Acceptance Criteria.
Force Majeure Event: Any circumstance beyond the reasonable control of the parties including, but not limited to acts of God, fire, explosion, adverse weather conditions, flood, earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slow-downs or other industrial disputes, accidents, riots or civil disturbances, acts of government, lack of power and delays by suppliers or materials shortages.
Intellectual Property Rights: Any patents, inventions, know-how, trade secrets and other confidential information, registered designs, copyrights, database rights, design rights, rights affording equivalent protection to copyright, semiconductor topography rights, trade marks, service marks, logos, domain names, business names, trade names (whether capable of being patented or registered or not) and all registrations or applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing off.
Order Form: the form that has been agreed in writing between the parties which sets out the Services to be provided by the Supplier to the Customer, the Charges payable in respect of such Services and all other related matters
Platform Subscription Agreement: the supplemental agreement as between the Supplier and Customer set forth at Appendix A governing the subscription services in respect of the Configured Platform.
Services: The services performed by the Supplier including but not limited to AI strategy and consulting, AI platform and operations services, AI solution design and implementation, data analytics, digital transformation, cloud infrastructure, cyber security, software engineering, and resource augmentation, as set out in the applicable Statement of Work or Order Form.
Specification: The specification for the Services / Deliverable agreed between the parties and set out in the Statement of Work and/or Order Form or as otherwise agreed in writing between the parties.
Statement of Work(s) and/or Order Form(s): A Statement of Work and/or Order Form (or if more than one, statements of work/order form) that has been agreed in writing between the parties in one of the form(s), which will set out the Services and/or Deliverables to be provided by the Supplier to the Customer, the Charges payable in respect of such Services and/or Deliverables and all other matters relevant to the project.
Subscription Fees: has the meaning in the Platform Subscription Agreement.
Subscription Services: has the meaning in the Platform Subscription Agreement.
Supplier: RIVER AI & DIGITAL LIMITED, a company incorporated and registered in England and Wales with company number 16673730 whose registered office is at 71-75 Shelton Street, Covent Garden, London, United Kingdom, WC2H 9JQ.
Supplier IP: All Intellectual Property Rights, including know-how, information, methodologies, materials, frameworks, techniques, tools, schemata, universal patterns, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited to, software, documentation, and data of whatever nature and in whatever media) (i) owned, developed or controlled by the Supplier prior to the Effective Date; or (ii) which has been created outside the scope, or independently of the Services and/or this Agreement; or (iii) generated in the performance of the Services by the Supplier and is not exclusively related to the Customer Materials, and all updates, modifications, derivatives or future developments thereof.
Term: The period commencing on the Effective Date and unless terminated earlier pursuant to clause 19 or clause 14 of the Platform Subscription Agreement, until the date of completion of the Services under the last Statement of Work and/or Order Form.
VAT: Value-added tax, to be calculated at the appropriate rate at the time of charging.
1.2
In this Agreement:
1.2.1
clause, schedule and paragraph headings shall not affect the interpretation of this Agreement;
1.2.2
references to statutes, regulations or other legislation or enactments referenced herein shall be deemed to be references to that enactment as amended, supplemented, re-enacted or replaced from time to time;
1.2.3
the words include, including, and similar words or expressions will not limit the meaning of the words that come before them;
1.2.4
reference to writing or written includes e-mail but not any other form of electronic communication;
1.2.5
each of the parties shall be referred to as a party or together, the parties.
1.3
In the event of a conflict or inconsistency between the terms of this Agreement and a Statement of Work and/or Order Form, except where expressly stated otherwise, the provisions of the Statement of Work and/or Order Form shall prevail.
Agreement
2.1
This Agreement shall commence on the Effective Date and shall continue for the Term.
2.2
The Customer may procure Services by agreeing to one or more Statements of Work/Order Form.
2.3
The Supplier shall provide the Services from the date and for the period specified in the relevant Statement or Work / Order Form.
2.4
Each Statement of Work / Order Form shall be agreed in the following manner:
2.4.1
The Customer shall make the request for Services in writing and provide the Supplier with as much information as the Supplier reasonably requests in order to evaluate the request and prepare a draft Statement of Work and/or Order Form;
2.4.2
Following receipt of the information requested from the Customer, the Supplier shall provide a draft Statement of Work and/or Order Form setting out the Services and/or Deliverables to be provided by the Supplier to the Customer.
2.4.3
The Customer will review each Statement of Work and/or Order Form and the parties will discuss and confirm that it is complete and accurate.
2.4.4
Both parties shall sign the draft Statement of Work and/or Order Form when it is agreed.
2.5
Once a Statement of Work has been agreed and signed in accordance, no amendment shall be made to it except pursuant to a Change Request in accordance with clause 9.
2.6
Once executed, each Statement of Work shall form a part of and be subject to the terms of this Agreement.
Services
3.1
In consideration for the payment of the Charges and subject to the terms of this Agreement, the Supplier will provide the Services and/or the Deliverables set out in each Statement of Work and/or Order Form in accordance with this Agreement and the Statement of Work and/or Order Form.
Deliverables
4.1
Where Deliverables are specified, they shall be deemed delivered on completion of the relevant Statement of Work or Order Form and accepted in accordance with clause 5.
4.2
Any Supplier IP encompassing any proposals or examples are for illustrative purposes only and shall not form part of this Agreement unless expressly incorporated in a Statement of Work or Order Form.
4.3
Where Deliverables include third-party products or services, these will be provided subject to the terms of the relevant third party, and the Supplier shall have no liability in respect of the Customer’s use of the same, unless expressly agreed in this Agreement.
4.4
Where the Deliverable consists of the Configured Platform, the terms of the Platform Subscription Agreement shall apply.
4.5
Subject to clause 4.6, the Deliverables are provided on an “as-is” basis and the Supplier makes no representations or warranties, express or implied, with respect thereto, except as provided under this Agreement and in particular of the Deliverables (i) commercial utility, (ii) merchantability or fitness for a particular purpose, or (iii) the use of them will not infringe any patent, copyright or trademark or other proprietary right of a third party.
4.6
The Supplier warrants that, for ninety (90) days from delivery, the Services and Deliverables will materially conform the Specification (where applicable) and be provided free from material defects.
4.7
The Supplier does not warrant that outputs generated by AI systems will be accurate, complete, or free from bias. The Customer is responsible for reviewing such outputs and making business decisions based upon them and the Supplier shall not be liable for any loss, claim, damage, or liability of any kind, that may arise from or in connection with the Customer’s use of such output.
4.8
The warranty provided at clause 4.6 shall not apply to defects arising from: (a) Customer modifications or misuse; (b) failure to follow Supplier instructions; (c) defects in designs or specifications provided by the Customer; (d) defects in the Customer Materials provided; (e) third-party products or services; or (f) events outside the Supplier’s reasonable control.
4.9
The Customer’s sole remedy for breach of the warranty in clause 4.6 shall be, at its option, either for the Supplier to re-perform the Services or repair/replace the Deliverables.
4.10
All other warranties, conditions and terms implied by law are excluded to the fullest extent permitted.
Acceptance of Deliverables
5.1
Where the Statement of Work and/or Order Form indicates that the Services or Deliverables will be subject to Acceptance, the following acceptance procedure will apply:
5.1.1
Conformance: The Deliverables materially conform to the requirements and specifications set out in the Statement of Work or Order Form or Specification.
5.1.2
Functionality: Any Deliverables intended for operational use perform their core functions without material defects.
5.1.3
Integration: Where Deliverables are designed to integrate with Customer systems, they do so in accordance with the agreed Specification.
5.1.4
Documentation: Any agreed documentation, training materials, or handover items are provided in a complete and usable form.
5.2
The Customer shall carry out any agreed acceptance tests within the acceptance period specified in the Statement of Work or, if none is specified, within ten (10) Business Days of delivery.
5.3
Where the Services comprise consultancy or advisory work without tangible Deliverables, such Services shall be deemed accepted upon performance and shall not be subject to the acceptance testing process in this clause 5 or any Acceptance Criteria.
5.4
Where the Services comprise the provision of personnel, such Services shall be deemed accepted upon commencement of the engagement. The Customer remains responsible for the day-to-day supervision, direction, and control of such personnel, and these Services shall not be subject to the acceptance testing process in this clause 5, or any Acceptance Criteria.
5.5
Where applicable, the Customer shall notify the Supplier in writing of any material non-conformance with the Acceptance Criteria within the agreed acceptance period, which in any event shall be no longer than thirty (30) days from delivery. If no such notice is given, or if the Deliverables are put into live or production use, the Deliverables shall be deemed accepted.
5.6
If the Customer notifies the Supplier of any material non-conformance during the acceptance period, the Supplier shall use reasonable endeavours to remedy the issue and re-submit the Deliverables for acceptance in accordance with this clause.
5.7
Acceptance of Deliverables shall not affect the Customer’s rights under the warranty in clause 4.6.
Customer Obligations
6.1
The Customer acknowledges that the Supplier's ability to provide the Services and deliver the Deliverables is dependent upon the complete and timely cooperation of the Customer (which the Customer agrees to provide) in terms of the accuracy and completeness of any design specifications, the Customer Materials, and any further information and data the Customer provides to Supplier. The Customer will and will procure that its employees or sub-contractors will:
6.1.1
co-operate with the Supplier in all matters relating to the Services as requested by the Supplier;
6.1.2
make decisions and provide the Supplier with access to and use of all information, data and documentation required by the Supplier for the performance by the Supplier of its obligations under this Agreement;
6.1.3
provide such access as is required by the Supplier to the Customer's premises, computer systems and facilities during Business Hours;
6.1.4
ensure that there is a legitimate licence for every copy of each third-party product provided to the Supplier for use hereunder and that such licences permit use of the third party product by the Supplier as required to perform the Services, and its provision under this Agreement complies with such licence terms and conditions, and, if applicable, provide the Supplier with a copy of such terms and conditions;
6.1.5
inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer's premises;
6.1.6
notify the Supplier promptly if it becomes aware of any unauthorised use of all or part of the Services or Deliverables; and
6.1.7
comply with all applicable laws and regulations concerning its activities under this Agreement.
6.2
The Customer will not, and will procure that its employees, sub-contractors, or any third party will not:
6.2.1
unlawfully use the Services or Deliverables;
6.2.2
use the Services or Deliverables to transfer any illegal material (including but not limited to material which may be deemed to be offensive, abusive, indecent, defamatory, obscene, menacing, in contempt of court or in breach of copyright, confidentiality, privacy or other rights);
6.2.3
divulge to a third party any passwords that allow the Customer to have access to the Services or Deliverables, and the Customer will keep all passwords confidential and inaccessible to third parties;
6.2.4
use or permit the use of the Services and Deliverables other than in compliance with the instructions given, for the purpose for which they were supplied, and by the relevant documentation relating to the Services produced or made available by the Supplier to the Customer.
6.3
The Customer warrants that the Customer Materials provided by the Customer under this Agreement are legally licensed or owned by the Customer and the use of such Customer Materials in the Services shall not infringe the rights of any third party. The Customer will be responsible for the accuracy and completeness of the Customer Materials and the expense of obtaining any other information, materials or facilities needed to allow the Supplier to conduct the Services unless otherwise agreed in a Statement of Work.
Supplier Obligations
7.1
The Supplier will:
7.1.1
perform the Services and provide the Deliverables with reasonable care and skill;
7.1.2
use commercially reasonable endeavours to meet any quality standards set out in the Specification;
7.1.3
provide the Services following Good Industry Practice;
7.1.4
use its commercially reasonable endeavours to complete any Deliverables by any dates set out under any Statement of Work, but any such dates shall be estimates only;
7.1.5
commit sufficient resources to provide the Services to enable their delivery per the Agreement and Statement of Work and/or Order Form.
7.2
The Customer confirms that the Supplier may employ subcontractors without the Customer's consent. Notwithstanding the foregoing, the Supplier shall always be responsible for and liable in respect of the performance of all obligations under this Agreement, whether such duties are performed by the Supplier itself or any subcontractor engaged by the Supplier and under the supervision of the Supplier.
Charges & Payment
8.1
The Supplier shall issue invoices in respect of the Charges at the frequency set out in the Statements of Work/Order Form, and the Customer shall pay to the Supplier the Charges set out in such invoice within twenty-eight (28) days.
8.2
In the event of bona fide dispute in respect of the Charges, the Customer shall pay that part of the invoice that is not in dispute. The Parties shall co-operate in good faith to resolve the dispute over the invoice as promptly as possible. On settlement of any dispute, the Customer shall make the appropriate payment no later than forty five (45) days after resolution.
8.3
All Charges are exclusive of VAT.
8.4
If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment, then, without limiting the Supplier's remedies:
8.4.1
The Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate but at 4% a year for any period when that base rate is 0% or below; and
8.4.2
the Supplier may suspend all or part of the Services until all applicable invoices have been paid.
8.5
The Supplier may increase the Charges no more than once per year, with effect from each anniversary of the Subscription Start Date, by giving the Customer no less than sixty (60) days' prior written notice. Any such increase shall not exceed the lower of (i) the percentage increase in the Consumer Price Index over the preceding twelve (12) months and (ii) five per cent (5%). For the purposes of this clause 8.5, the Consumer Price Index means the Consumer Price Index as published by the Office for National Statistics from time to time, or failing such publication, such other index as the parties may agree (such Agreement is not to be unreasonably withheld or delayed), acting, and most closely resemble such index.
8.6
The Customer shall have no right to terminate this Agreement on account of any such increase.
8.7
Subscription Fees payable under this Agreement shall be on the terms set forth in the Platform Subscription Agreement.
8.8
Neither party may withhold payment of any amount due to the because of any set-off, counter- claim, abatement, or other similar deduction.
Change Control Procedure
9.1
Either party may submit a Change Request for all or part of the Services at any time in writing, including by email.
9.2
Following a party’s submission of a Change Request, the other party shall notify the requesting party within ten (10) Business Days if it accepts or rejects the Change Request.
9.3
If accepted, the relevant Statement of Work and/or Order Form (including any agreed dates) shall be deemed amended as agreed in writing, or a new Statement of Work and/or Order Form shall be executed to reflect the Change.
Non-Solicitation
10.1
During the Term and for period of twelve (12) months after that, each party agrees not to solicit or offer employment to any employees of the other party, or any subcontractors used by the other party hereunder without the prior written consent of the other party.
10.2
Each party acknowledges that it would be difficult to measure the damage arising from a breach or threatened breach of any provision of the preceding clause 10.1 and that monetary damages would be an inadequate remedy. Each party, therefore, agrees that the other party will be entitled to temporary and permanent injunctive relief to restrain the party in breach of this clause 10 from any such breach or threatened breach.
10.3
Nothing in this Agreement will be construed as preventing the innocent party from pursuing any remedies available to it for a breach or threatened breach of any provision of this Agreement, including the recovery of monetary damages.
Warranties
11.1
All warranties, representations, guarantees, conditions, and terms other than those expressly set out in this Agreement, whether express or implied by statute, common law, trade usage or otherwise and whether written or oral, are hereby expressly fully excluded to the extent permissible by law.
11.2
The Supplier warrants and represents that it holds and shall maintain all consents, licences and permissions that are necessary to provide the Services.
11.3
Each party warrants and represents that it has the requisite power and authority to enter into this Agreement and to carry out its obligations as contemplated by the Agreement.
Intellectual property
12.1
The Customer shall retain ownership of all Intellectual Property Rights in the Customer Materials. The Customer grants the Supplier a non-exclusive, non-transferable licence to use the Customer Materials solely for the purpose of performing the Services under this Agreement.
12.2
The Supplier and its licensors shall own and retain ownership of all Supplier IP.
12.3
Upon full payment of all Charges relating to the Services performed pursuant to a Statement of Work or Order Form, the Supplier shall grant to the Customer, subject to any third party rights a non-exclusive licence under the Supplier IP in the Deliverables for its use and operation of the Deliverable made available through the Platform Subscription Agreement on execution of the applicable Order Form.
12.4
Nothing in this Agreement prevents the Supplier from using any general knowledge, skills, experience, or ideas acquired in the course of providing the Services, in delivery of its services in the normal course of its business provided that the Supplier does not disclose or use the Customer’s Confidential Information in doing so.
Intellectual Property Rights Indemnity
13.1
The Supplier shall indemnify, defend and hold harmless the Customer from and against all direct claims, actions, liabilities, damages, losses, costs and expenses (including reasonable legal fees) (Losses) suffered or incurred by the Indemnified Party arising from any third party claim that its performance of the Services and/or supply of the Deliverables, at the time of supply, to the Customer infringes the Intellectual Property Rights of a third party.
13.2
The Customer shall indemnify, defend and hold harmless the Supplier from and against all Losses suffered or incurred by the Supplier arising from any third party claim (a) that the supply and/or use of the Customer Materials by the Supplier infringes the Intellectual Property Rights of a third party; or (b) in connection with the Customer’s use of the Deliverables.
13.3
If a party (each an Indemnifying Party) is required to indemnify the other party (each an Indemnified Party) under clause 13.1 or 13.2, the Indemnified Party shall:
13.3.1
notify the Indemnifying Party in writing of such claim, specifying the nature of the Claim in reasonable detail (Claim) in respect of which it wishes to rely on the indemnity;
13.3.2
allow the Indemnifying Party, at its own cost, to promptly conduct all negotiations and proceedings and to settle the Claim, always provided that the Indemnifying Party shall keep the Indemnified Party updated as to the status of the Claim and obtain the Indemnified Party's prior approval of any settlement terms, such approval not to be unreasonably withheld;
13.3.3
provide the Indemnifying Party with such reasonable assistance and Information regarding the Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
13.3.4
not, without prior consultation with the Indemnifying Party, make any admission relating to the Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute. Each Indemnified Party shall use all reasonable endeavours to mitigate any Losses it may suffer or incur as a result of an event that may give rise to a claim under an indemnity.
13.4
Neither Indemnifying Party shall be liable under the respective indemnity at clause 13.1 or 13.2 to the extent Losses result from the Indemnified Party’s breach of this Agreement, negligence or wilful misconduct.
Data Protection
14.1
Both parties shall comply with all applicable requirements of the Data Protection Laws in force in the United Kingdom. This clause 14 is in addition to, and does not relieve, remove, or replace, a party’s obligations or rights under Data Protection Laws.
14.2
The parties acknowledge that, for the purposes of the Data Protection Laws, the Customer is the Controller and the Supplier is the Processor of any Personal Data processed in connection with this Agreement.
14.3
Where the Supplier acts as a Processor on behalf of the Customer, the parties shall comply with the Data Processing Agreement (DPA) available at https://riverai.co.uk/legal-dpa/.
14.4
Where the Supplier determines the purposes and means of processing Personal Data (acting as Controller), the Supplier shall be responsible for its own compliance with Data Protection Laws.
14.5
Each party shall implement and maintain appropriate technical and organisational measures to protect Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.
14.6
The Supplier shall notify the Customer without undue delay upon becoming aware of a Personal Data Breach relating to this Agreement and shall co-operate with the Customer to meet any obligations under Data Protection Laws.
14.7
Neither party shall transfer Personal Data outside the UK (or, where applicable, the EEA) unless such transfer is subject to appropriate safeguards in accordance with Data Protection Laws.
Confidentiality
15.1
Each party (Receiving Party) shall keep the other Party's (Disclosing Party) Confidential Information strictly confidential and shall not:
15.1.1
use such Confidential Information of the Disclosing Party except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or
15.1.2
disclose such Confidential Information of the Disclosing Party in whole or in part to any third party, except as expressly permitted by this clause 15.
15.2
A Receiving Party may disclose a Disclosing Party's Confidential Information to those of its employees, officers, representatives, consultants and advisers (Representatives) who need to know such Confidential Information for the Permitted Purpose, provided that:
15.2.1
it informs such Representatives of the confidential nature of the Confidential Information of the Disclosing Party before disclosure;
15.2.2
it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a party to this Agreement; and
15.2.3
at all times, it is liable for the failure of any Representatives to comply with the obligations set out in this clause 15.
15.3
The provisions of this clause 15 shall not apply to any Confidential Information of the Disclosing Party that, as can be evidenced by contemporaneous records:
15.3.1
is or becomes generally available to the public (other than as a result of its disclosure by the Receiving Party or its Representatives in breach of this clause 15);
15.3.2
was available to the receiving Party on a non-confidential basis before disclosure by the Disclosing Party (other than as a result of unauthorised disclosure);
15.3.3
was, is or becomes available to the Receiving Party on a non-confidential basis from a person who, to the Receiving Party's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Receiving Party; or
15.3.4
is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party as documented by written records.
15.4
A Receiving Party may disclose Confidential Information to the minimum extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible.
15.5
Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Disclosing Party's Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
15.6
On termination of this Agreement, the Receiving Party shall at the request of the Disclosing Party, destroy or return to the Disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the Disclosing Party's Confidential Information.
15.7
The provisions of this clause 15 shall survive expiration or termination of this Agreement.
Anti-Bribery
16.1
Each party shall ensure that it does not, by any act or omission, place the other party in breach of any applicable laws relating to bribery or anti-corruption (Bribery Laws), and shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery.
16.2
Neither party shall make or receive any bribe (which term shall be construed under the Bribery Act 2010) or other improper payment or advantage, or allow any such bribe or improper payment or advantage to be made or received on its behalf, either in the United Kingdom or elsewhere, and both parties shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
16.3
Each party shall immediately notify the other party as soon as it becomes aware of a breach of any of the requirements in clause 16. Any breach of this clause 16 shall be deemed a material breach of this Agreement that is not remediable.
Dispute Resolution
17.1
If a dispute arises under this Agreement (Dispute), including any Dispute arising out of any amount due to a party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a party must first give written notice of the Dispute to the other party describing the Dispute and requesting that it is resolved under this dispute resolution process (Dispute Notice).
17.2
If the parties are unable to resolve the Dispute within fifteen (15) Business Days of receipt of the Dispute Notice, then each party will promptly (but no later than five (5) Business Days after that):
17.2.1
appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of this Agreement (Designated Representative); and
17.2.2
notify the other party in writing of the name and contact information of such Designated Representative.
17.3
The Designated Representatives will then meet as often as they deem necessary in their reasonable judgment to discuss the Dispute and negotiate in good faith to resolve the Dispute. The Designated Representatives will mutually determine the format for such discussions and negotiations, provided that all reasonable requests for relevant Information relating to the Dispute made by one party to the other party will be honoured.
17.4
If the parties cannot resolve the Dispute within fifteen (15) Business Days after the appointment of both Designated Representatives, then either party may proceed with any other available remedy.
17.5
Without prejudice to any other rights or remedies that either party may have, each party acknowledges and agrees that damages alone may not be an adequate remedy for any breach of the terms of this Agreement. Accordingly, each party shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
Limitation of Liability
18.1
Neither party excludes nor limits any liability for:
18.1.1
personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees;
18.1.2
fraud or fraudulent misrepresentation; or
18.1.3
any other liability to the extent it cannot be excluded or limited by law.
18.2
The Supplier shall not be liable for:
18.2.1
any loss of profits, anticipated profits, revenues, anticipated savings, loss of data, business interruption, loss of use, loss of contracts, loss of management time, loss of goodwill and reputation, or loss of business opportunity (in each case, whether direct or indirect); or
18.2.2
any indirect, incidental, punitive, exemplary, or consequential damages arising out of or in connection with this Agreement, even if the Supplier has been advised of the possibility of such damages.
18.3
Subject to clause 18.1, the Supplier’s total aggregate liability arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited the to total Charges paid by the Customer to the Supplier in the twelve (12) months immediately preceding the event giving rise to the claim.
18.4
Both parties accept that the limitations and exclusions in this Agreement are reasonable regarding all the circumstances.
Term & Termination
19.1
This Agreement shall commence on the Effective Date and remain in full force for the Term unless otherwise agreed by the parties or earlier terminated under this clause 19 or clause 14 of the Platform Subscription Agreement.
19.2
Either party may, without affecting its other rights under this Agreement, by notice in writing to the other party, immediately terminate this Agreement if the other:
19.2.1
is in material or persistent breach of any of its obligations under this Agreement, and if that the breach is capable of remedy, and the other has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach, or
19.2.2
is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent, or an order is made, or a resolution passed for the administration, winding-up, or dissolution of the other (otherwise than for a solvent amalgamation or reconstruction) or an administrative or other receivers, manager, liquidator, administrator, trustee or similar officer is appointed over all, or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event that occurs in any applicable jurisdiction; or
19.2.3
ceases or suspends, or threatens to cease or suspend, the carrying on of any part of its business.
19.3
The Supplier may terminate this Agreement on thirty (30) Business Days' notice where it has become aware that the Customer has been subject to a Change of Control (and "Control" has the meaning given to it in section 1124 of the Corporation Tax Act 2010, and the expression ‘change of control’ shall be construed accordingly).
19.4
The Supplier may terminate the Platform Subscription Agreement on written notice and with immediate effect (subject to clause 14.5 of the Platform Subscription Agreement) in the event the Supplier ceases to have the right or authority to provide the Subscription Services and/or Documentation.
19.5
On termination of this Agreement for any reason:
19.5.1
all licences granted by the Supplier under this Agreement will terminate immediately unless otherwise agreed in writing;
19.5.2
the parties shall agree, where applicable, a set of activities to wind down any ongoing Services and any Subscription Services and the Customer acknowledges that the Supplier may charge additional sums for such wind down activities;
19.5.3
the Customer shall immediately pay to the Supplier any sums due to the Supplier, including any outstanding Subscription Fees.
19.6
Where this Agreement is terminated, and there is ongoing work under existing Statements of Work/Order Form or pursuant to clause 14.5 of the Platform Subscription Agreement, the performance of the wind down activities require the Supplier to provide Services beyond the effective date of termination, this Agreement shall remain in effect until any remaining Statements of Work/Order Form either expire or are terminated, or any wind down activities are completed.
19.7
Each Statement of Work and/or Order Form can only be terminated under the provisions expressly set out in the Statement of Work and/or Order Form, or if no provisions are set out in the Statement of Work and/or Order Form, on the provision of at least ninety (90) days' written notice.
19.8
Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
Force Majeure
20.1
Neither party shall be in breach of this Agreement or liable for delay in performing, or failure to perform, any of its obligations, excluding any obligation of payment, under this Agreement if such delay or failure result from a Force Majeure Event.
20.2
In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for forty-five (45) days, the party not affected may terminate this Agreement by giving thirty (30) days' written notice to the affected party.
General
21.1
Third-party rights: For the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedies for such a person that exist or are available apart from that act.
21.2
Survival: Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect
21.3
Relationship of the parties: The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust.
21.4
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement except where after having given prior written notice to the Supplier, except the Customer may assign its rights under this agreement to any person to which it transfers its business, provided that the assignee undertakes in writing to the Supplier to be bound by the Customer’s obligations under this agreement.
21.5
The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
21.6
Entire Agreement: This Agreement and where appliable, the Platform Subscription Agreement, contain[s] the whole Agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any fraud or fraudulent misrepresentation liability.
21.7
Variation: Subject to the following sentence in respect of the Acceptable Use Policy, no amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party. The Supplier may update the Acceptable Use Policy in accordance with the update mechanism set out in the Acceptable Use Policy itself. Each executed amendment shall (i) identify the clauses of this Agreement that it amends, (ii) be numbered sequentially and dated, and (iii) on execution form part of this Agreement. The Supplier shall maintain a consolidated version of this Agreement reflecting all agreed amendments and shall make the current consolidated version available to the Customer on reasonable request. In the event of any conflict between the original Agreement and an executed amendment, the most recent executed amendment shall prevail.
21.8
Severability: If any clause in this Agreement (or part of a clause) is or becomes illegal, invalid or unenforceable under applicable law but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part of it) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
21.9
Waiver: No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
21.10
Notices: Notices under this Agreement must be in writing and sent to the other party's address or email address, as set out in the Order Form. After sending, letters sent in the United Kingdom will be deemed delivered in three Business Days (excluding English Bank Holidays). Emails will be considered to be delivered the same day (or the next Business Day if sent on a non-business day or after 5 pm on any Business Day at the recipient's location).
21.11
Counterparts and electronic signatures: This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute one agreement. Transmission of an executed counterpart of this Agreement (but for the avoidance of doubt not just a signature page) by (i) email (in PDF or equivalent format) or (ii) an electronic signature platform (including, without limitation, DocuSign or Adobe Sign) shall take effect as delivery of an executed counterpart of this Agreement. The parties agree that electronic signatures so applied shall have the same legal effect as handwritten signatures.
21.12
Governing law and jurisdiction: This Agreement is governed by the laws of England and Wales. All disputes under this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.
APPENDIX A - PLATFORM SUBSCRIPTION AGREEMENT
Background
(A)
The Supplier has created and developed a Configured Platform for the Customer pursuant to the Terms and Conditions.
(B)
The Customer wishes to use the Configured Platform in its business operations.
(C)
The Supplier has agreed to provide access to the Configured Platform and the Customer has agreed to take and pay for the Subscription Services, subject to the terms and conditions of this agreement.
Definitions and interpretation
2.1
The following definitions shall apply in this agreement:
Acceptable Use Policy or AUP: the acceptable use policy published by the Supplier at https://riverai.co.uk/legal-aup/ (or such replacement URL as the Supplier may notify to the Customer in writing from time to time), as updated by the Supplier from time to time in accordance with the Variation clause of this Agreement.
Confidential Information: has the same meaning as set forth in the Terms and Conditions.
Configured Platform: the infrastructure and cloud computing platform and runtime environment configured and deployed by the Supplier to support the Customer’s workflows, as described in the Documentation.
Contract Year: a 12-month period commencing on the Effective Date or any anniversary of it.
Customer Data: the data inputted by the Customer or the Supplier on the Customer's behalf for the purpose of using the Subscription Services or facilitating the Customer's use of the Subscription Services.
Data Protection Agreement: as at https://riverai.co.uk/legal-dpa/.
Documentation: the document(s) and other materials made available to the Customer by the Supplier from time to time which sets out the user instructions for the Subscription Services.
Effective Date: the last date of signature to the Order Form.
Initial Subscription Term: the initial term of this agreement as set out in the Order Form.
Managed Services: has the meaning set forth at clause 4.3.
Order Form: the form that has been agreed in writing between the parties which sets out the Subscription Services to be provided by the Supplier to the Customer, the Subscription Fees payable in respect of such Subscription Services, the Subscription Term and all other related matters.
Renewal Period: the period described in the Order Form.
SLA: the service level agreement published by the Supplier at https://riverai.co.uk/legal-sla/ (or such replacement URL as the Supplier may notify to the Customer in writing from time to time), as updated by the Supplier from time to time in accordance with the Variation clause of this Agreement, which sets out the availability commitment, service credits, excluded downtime, scheduled maintenance windows, incident reporting procedures and claim procedure applicable to the Subscription Services.
Software: the software applications and tools provided by the Supplier as part of the Subscription Services.
Subscription Services: access to the Configured Platform, Software and Documentation, as further described in the Order Form and performed by the Supplier in accordance with the SLA.
Subscription Fees: the subscription fees payable by the Customer to the Supplier , as set out in the Order Form
Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Terms and Conditions: the terms and conditions to which this Platform Subscription Agreement is annexed.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability the Subscription Services, and the term Vulnerabilities shall be interpreted accordingly.
2.2
In this agreement any capitalised terms used in this agreement that are not herein defined shall have the meaning set forth in the Terms and Conditions:
2.3
In the event of a conflict or inconsistency between the terms of this agreement and a Order Form, except where expressly stated otherwise, the provisions of the Order Form shall prevail.
2.4
The provisions of Data Protection, Confidentiality, Anti Bribery, Dispute Resolution, Force Majeure and those described under the heading General as set forth in the Terms and Conditions shall apply to this agreement.
Subscription
3.1
Subject to the Customer paying the Subscription Fee and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to use the Subscription Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
3.2
The Customer undertakes that it shall permit the Supplier or the Supplier's designated auditor to audit the Subscription Services and the Customer's data processing facilities to audit compliance with this agreement. Such audit may be conducted with reasonable prior notice, and in such a manner as not to substantially interfere with the Customer's normal conduct of business:
3.3
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription Services that:
3.3.1
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2
facilitates illegal activity;
3.3.3
depicts sexually explicit images;
3.3.4
promotes unlawful violence;
3.3.5
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6
is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
3.4
The Customer shall not:
3.4.1
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i)
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, the Subscription Services, and/or Documentation (as applicable) in any form or media or by any means; or
(ii)
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Configured Platform;
3.4.2
access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation;
3.4.3
use the Subscription Services and/or Documentation to provide Subscription Services to third parties;
3.4.4
use the Subscription Services outside of the Acceptable Use Policy or the data consumption levels agreed in the Order Form;
3.4.5
license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or Documentation available to any third party;
3.4.6
attempt to obtain, or assist third parties in obtaining, access to the Subscription Services and/or Documentation; or
3.4.7
introduce or permit the introduction of, any Virus or Vulnerability into the Subscription Services or the Supplier's network and information systems.
3.5
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.6
The rights provided under this agreement are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
Subscription Services
4.1
The Supplier shall, during the Subscription Term, provide the Subscription Services, in accordance with the SLA, and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2
The Supplier shall use commercially reasonable endeavours to make the Subscription Services available during Business Hours.
4.3
In the event the Customer requires additional support in respect of the Configured Platform or otherwise in respect of the Subscription Services (Managed Services), the Customer may purchase such Managed Services from the Supplier subject to the agreement of an Order Form, to be governed by the Supplier’s terms and conditions and then current rates.
Data Protection
The Supplier and Customer acknowledge and agree that the Data Processing Agreement sets out the terms, requirements and conditions on which the Supplier will process Personal Data when providing Subscription Services under this agreement.
Third Party Providers
The Customer acknowledges that the Subscription Services may enable or assist it to access the website content of, correspond with, and purchase products and subscription services from third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Subscription Services.
Supplier Obligations
7.1
The Supplier shall perform the Subscription Services substantially in accordance with the Documentation and with reasonable skill and care.
7.2
The Supplier's obligations at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Subscription Services contrary to the Supplier's instructions, or modification or alteration of the Subscription Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Subscription Services do not conform with the terms of clause 7.1, the Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.3
The Supplier:
7.3.1
warrants to its reasonable knowledge as of the Effective Date:
(i)
the Software complies with all applicable laws with its supply and use in accordance with the terms of this agreement;
(ii)
the Software shall not knowingly infringe upon Intellectual Property Rights of any third party.
7.3.2
The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4
WITHOUT LIMITING THE SUPPLIER’S EXPRESS OBLIGATIONS HEREUNDER, THE SUPPLIER HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, CONFIGURED PLATFORM,SUBSCRIPTION SERVICES, OR SOFTWARE. THE SOFTWARE, CONFIGURED PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. THE SUPPLIER DOES NOT WARRANT IN ANY EVENT THAT THE SOFTWARE OR CONFIGURED PLATFORM ARE ERROR-FREE, OR THAT THE SOFTWARE OR CONFIGURED PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR FREE OF VULNERABILITY TO ANY INTRUSION OR ATTACK. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
7.5
This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or Subscription Services which are similar to those provided under this agreement.
7.6
The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
Customer Obligations
8.1
The Customer shall:
8.1.1
provide the Supplier with
(i)
all necessary co-operation in relation to this agreement; and
(ii)
all necessary access to such information as may be required by the Supplier,
in order to provide the Subscription Services, including but not limited to Customer Data, security access information and configuration Subscription Services;
8.1.2
without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
8.1.3
carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary and the Supplier shall not be liable for any failure to deliver any or all of the Subscription Services to the extent caused by the Customer’s delay;
8.1.4
obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Subscription Services;
8.1.5
ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
8.1.6
be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8.2
The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
Charges & Payment
9.1
The Customer shall pay the Subscription Fees to the Supplier in accordance with this clause 9.1 and the Order Form, and any Managed Services fees in accordance with clause 4.3.
9.2
If the Supplier has not received payment within thirty (30) days after the due date for any sums due under this agreement, and without prejudice to any other rights and remedies of the Supplier:
9.2.1
the Supplier may, on no less than five (5) Business Days' notice to the Customer and without liability to the Customer, disable the Customer's password, account and access to all or part of the Subscription Services and the Supplier shall be under no obligation to provide any or all of the Subscription Services while the invoice(s) concerned remain unpaid; and
9.2.2
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base rate of the Bank of England from time to time, but at 4% a year for any period when that base rate is 0% or below, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.3
All amounts and fees stated or referred to in this agreement:
9.3.1
shall be payable in pounds sterling;
9.3.2
are, subject to clause 13.4.2, non-cancellable and non-refundable;
9.3.3
are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
9.4
If, at any time whilst using the Subscription Services, the Customer exceeds the amount of disk storage space and /or data consumption specified in the Documentation and/or Order Form, or outside the scope of the Acceptable Use Policy, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier's then current excess data storage and data consumption fees. The Supplier's excess data storage and data consumption fees current as at the Effective Date are set out in the Order Form.
9.5
The Supplier may increase the Subscription Fees, the Managed Services fees payable pursuant to clause 4.3 and/or the excess storage fees payable pursuant to clause 9.4 no more than once per year, with effect from each anniversary of the Subscription Start Date, by giving the Customer no less than sixty (60) days' prior written notice. Any such increase shall not exceed the lower of (i) the percentage increase in the Consumer Price Index (as defined in clause 8.5 of the Terms and Conditions) over the preceding twelve (12) months and (ii) five per cent (5%). The Order Form shall be deemed to have been amended accordingly. For the avoidance of doubt, the Customer shall have no right to terminate this agreement on account of any such increase.
Licence
10.1
The Customer acknowledges and agrees that the Supplier and/or its licensors own all Supplier IP including that which subsists in the Configured Platform and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Software, Configured Platform or the Documentation.
10.2
The Supplier confirms that it has all the rights in relation to the Subscription Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
Confidentiality
The Confidential Information shared under this agreement shall be governed by the Terms and Conditions.
Indemnity
12.1
The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (a) the Customer's acts or omissions under this agreement, including the use of the Subscription Services and/or Documentation; (b) the Customer's particular use case or deployment context; (c) Customer Data, Customer Materials, Customer instructions or Customer-specific configurations; (d) the Customer's failure to apply human oversight or other safeguards required of it as a deployer under Data Protection Laws or any AI-specific regulation (including, where applicable, the EU AI Act and equivalent UK legislation); or (e) the Customer's use of the Subscription Services in a 'high-risk AI system' context (as defined under the EU AI Act or equivalent UK legislation) without having opted in to such use via the Order Form.
12.2
The Supplier shall defend, indemnify and hold harmless the Customer against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) brought by a third party alleging that the Subscription Services, as provided by the Supplier and used by the Customer in accordance with this agreement, infringe any third-party Intellectual Property Rights. This indemnity shall not apply to the extent the claim arises from (a) the Customer's use of the Subscription Services in breach of this agreement or applicable law, (b) Customer Data or Customer Materials, (c) any modification of the Subscription Services made other than by or on behalf of the Supplier, (d) the Customer's particular use case or deployment context, or (e) the Customer's combination of the Subscription Services with any third-party products, services or data not supplied by the Supplier.
12.3
In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.3.1
a modification of the Subscription Services or Documentation by anyone other than the Supplier; or
12.3.2
the Customer's use of the Subscription Services, Configured Platform, or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
12.3.3
the Customer's use of the Subscription Services, Configured Platform or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or
12.3.4
the Customer Data; or
12.3.5
the Customer's breach of this agreement.
Limitation of Liability
13.1
The following definitions apply in this clause 13:
13.1.1
liability: every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise; and
13.1.2
default: any act or omission resulting in one party incurring liability to the other.
13.2
Except as expressly and specifically provided in this agreement:
13.2.1
the Customer assumes sole responsibility for results obtained from the use of the Subscription Services and the Documentation, and for conclusions drawn from such use;
13.2.2
the Supplier shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to the Supplier by the Customer in connection with the Subscription Services, or any actions taken by the Supplier at the Customer's direction;
13.2.3
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
13.2.4
the Subscription Services and the Documentation are provided to the Customer on an "as is" basis.
13.3
Nothing in this agreement excludes the liability of either party:
13.3.1
for death or personal injury caused by the Supplier's negligence;
13.3.2
for fraud or fraudulent misrepresentation;
13.3.3
breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
13.3.4
any other liability which may not be excluded by law.
13.4
Subject to clause 13.2 and clause 13.3:
13.4.1
the Supplier shall have no liability for any:
(i)
loss of profits,
(ii)
loss of business,
(iii)
wasted expenditure,
(iv)
depletion of goodwill and/or similar losses,
(v)
loss or corruption of data or information, or
(vi)
any special, indirect or consequential loss, costs, damages, charges or expenses; and
13.4.2
the Supplier's total aggregate liability to the Customer in respect of all defaults shall not exceed the cap; and
13.4.3
in clause 13.4.2, the cap is the total Subscription Fees paid in the Contract Year in which the defaults occurred.
13.5
Nothing in this agreement excludes the liability of the Customer for (a) any breach, infringement or misappropriation of the Supplier IP; (b) any negligence, wilful misconduct or breach by the Customer including any act or omission of it or its employees, agents or contractors whether occurring during the term of this agreement or otherwise.
13.6
This clause sets out the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement or alleged infringement of any third party patent, copyright, trade mark or database right by the Supplier.
13.7
The clause shall apply in respect of any liability in respect of the Subscription Services only.
Term
14.1
This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the date stated in the Order Form and shall continue for the Initial Subscription Term and, thereafter, this agreement shall automatically renew for successive Renewal Periods, unless:
14.1.1
the Customer notifies the Supplier of termination, in writing, at least ninety (90) days before the end of the Initial Subscription Term or a Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
14.1.2
otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2
For clarity, the Customer may not terminate this agreement during the Subscription Term save for as provided under clause 14.1.1 without the prior agreement of the Supplier and subject to payment in full of the Subscription Fee.
14.3
The Supplier may terminate this agreement on written notice and with immediate effect in the event the Supplier ceases to have the right or authority to provide the Subscription Services and/or Documentation, including where a material third-party AI model, infrastructure provider or other upstream service on which the Subscription Services depend is withdrawn, materially degraded, or made unavailable to the Supplier on commercially reasonable terms. Where the Supplier terminates under this clause, the Supplier shall (i) give the Customer as much prior notice as is reasonably practicable in the circumstances, (ii) provide the Customer with the data extraction and deletion rights set out in clause 14.5 as if termination had occurred for convenience, and (iii) refund to the Customer any Subscription Fees paid in advance in respect of the period after the effective date of termination.
14.4
Either party may, without affecting its other rights under this agreement, by notice in writing to the other party, immediately terminate this agreement if the other:
14.4.1
is in material or persistent breach of any of its obligations under this Agreement, and if that the breach is capable of remedy, and the other has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to remedy that breach, or
14.4.2
is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent, or an order is made, or a resolution passed for the administration, winding-up, or dissolution of the other (otherwise than for a solvent amalgamation or reconstruction) or an administrative or other receivers, manager, liquidator, administrator, trustee or similar officer is appointed over all, or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event that occurs in any applicable jurisdiction; or
14.4.3
ceases or suspends, or threatens to cease or suspend, the carrying on of any part of its business.
14.5
On termination of this Agreement for any reason:
14.5.1
all licences granted by the Supplier under this Agreement will terminate immediately unless otherwise agreed in writing;
14.5.2
the parties shall agree, where applicable, a set of activities to wind down any ongoing Subscription Services and the Customer acknowledges that the Supplier may charge additional sums for such wind down activities;
14.5.3
the Customer shall immediately pay to the Supplier any sums due to the Supplier, including any outstanding Subscription Fees;
14.5.4
for a period of thirty (30) days following the effective date of termination or expiry (the "Extraction Period"), the Supplier shall (at no additional charge beyond any Subscription Fees already payable) maintain the Customer Data in its production environment and provide the Customer with reasonable assistance to extract the Customer Data in a commonly used, machine-readable format; and
14.5.5
within thirty (30) days after the end of the Extraction Period, the Supplier shall securely delete or destroy all Customer Data in its possession or control (including copies held by sub-processors), save to the extent retention is required by applicable law, and shall on written request certify such deletion in writing to the Customer.
14.6
Termination or expiry of this agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.