Definitions
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Contribution: any and all material contributed to the Services by the Customers or its End Customers.
Control: has the meaning given in the Corporation Tax Act 2010.
Customer: has the meaning given in clause 2.1.
Customer Platform: means any platform through which the Customer operates the Services, including but not limited to its website and any applicable software applications.
Data: the data inputted by the Customer, End Customers, or Kortical on their behalf, or data collected via Customer Platform, for the purpose of using the Services.
Derived Data: any Usage Data which has been combined or aggregated (wholly or in part) with other data or information or adapted such that it cannot be identified as originating or deriving directly from the Usage Data and cannot be reverse-engineered such that it can be so identified.
Documentation: any document, material or information made available to the Customer by Kortical at www.kortical.com which sets out a description and specification of the Services, as may be updated by Kortical from time to time.
Effective Date: the date the Services are subscribed for on the Platform by the Customer.
End Customer: any person using a Customer Platform who is subject to legally-binding terms and conditions in accordance with clause 3.3.
Initial Subscription Term: the period that the Services are subscribed for on the Platform by the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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.
Kortical: Kortical Limited, a limited company incorporated in England and Wales with registered office address 41 Swaffield Road, London SW18 3AQ and registered number 10452273.
Kortical Platform: means any platform through which Kortical provides the Services to the Customer, KorticalChat or K-Chat.
Mark Guidelines: are contained in Schedule 2.
Marks: means:
of a party to this agreement, whether or not registered.
Open Source Software: any software licensed under any form of open source licence meeting the Open Source Initiative's Open Source Definition from time to time, which is included or used in, or in the development of, the Services, or with which the Services are compiled or to which it is linked.
personal data: has the meaning given to such term in Schedule 1.
Privacy Policy: https://kortical.com/legal/privacy-policy
Renewal Term: has the meaning given in clause 16.1.
Services: the chatbot services provided by Kortical to the Customer via the Kortical Platform for the applicable Subscription Level, subject to the Terms.
Subscription Fees: the subscription fees payable by the Customer to Kortical, as set out on the Platform and as may be amended from time to time in accordance with clause 10, for the right to use the Services pursuant to the Terms at the applicable Subscription Level.
Subscription Level: the subscription level purchased by the Customer as specified on the Platform, which defines the extent of the Services to be provided (as set out in the Documentation) and any restrictions on use, subject always to clause 6.3.
Subscription Term: the period comprising the Initial Subscription Term and any Renewal Terms.
Terms: these Terms and Conditions, the Privacy Policy and any other terms attached hereto or referred to herein.
Third Party Licence: any licence terms provided or imposed by the relevant third party provider of Third Party Software.
Third Party Software: any Open-Source Software and any software programs proprietary to third parties which are provided by Kortical to the Customer or included or used in the Services.
Usage Data: any usage and statistical data relating to the Customer’s and any End Customer’s use of the Services.
Usage Restrictions: any restrictions or parameters on usage of the Services applicable to a Subscription Level, including but not limited to number of message credits, number of bot identities, number and type of Customer Platforms, number of embeddings and level of support.
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, and the term Vulnerabilities shall be construed accordingly.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
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.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Terms.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Terms under that statute or statutory provision.
The Terms apply to the software as a service provided by Kortical to the customer signing up to receive the Services (“Customer”).
By clicking “I Accept,” when signing up, or by downloading, installing, or otherwise accessing or using the Services, the Customer agrees, as a condition of its use of the Services, that it accepts and agrees to be bound by, the Terms. If the Customer does not accept and agree to the Terms, then it is not authorised to use the Services. The Customer’s acceptance of the Terms constitutes a legally-binding agreement between Kortical and the Customer.
Subject to the Customer paying the applicable Subscription Fees in accordance with clause 10, and the other terms and conditions of the Terms, Kortical hereby grants to the Customer a non-exclusive, non-transferable right, without the ability to grant such right to third parties (other than as expressly stated herein), to use the Services and the Documentation during the Subscription Term, solely:
3.1.1
for the Customer's internal business operations; and
3.1.2
in order to operate the Services through the Customer Platform to interact with its End Customers, in each case in accordance with any applicable Usage Restrictions.
In relation to individuals using the Services, the Customer undertakes that each individual shall keep a secure password for their use of the Services and Documentation, and that such password shall be kept confidential and changed regularly.
The rights granted under clause 3.1.2 are subject to the following conditions:
3.3.1
the Customer must ensure it has legally-binding terms and conditions in place with each End Customer which are no less onerous in regards to all obligations, responsibilities and liabilities hereunder than the applicable terms of the Terms (including as to restrictions, intellectual property and confidentiality); and
3.3.2
the Customer shall remain fully liable and responsible to Kortical for the acts and omissions of its End Customers as if they are acts and omissions of the Customer.
The Customer shall be entitled to operate the Services to the End Customers in association with the Customer's Marks provided that, subject to clause 9.2, it prominently states “powered by KorticalChat” as part of the Services in a form and location to be approved in writing by Kortical, unless otherwise specified within the applicable Subscription Level.
Other than as expressly stated herein, the Customer has no right to grant any right to, and End Customers have no right to use, any other part of the Services.
The rights provided under this clause 3 are granted to the Customer only and shall not be deemed to be granted to any subsidiary or holding company of the Customer.
Kortical shall have access to the Customer’s Usage Data. In addition, the Customer shall permit Kortical or Kortical’s designated auditor to audit the Services in order to audit compliance with the Terms. Each such audit may be conducted no more than once per year, at Kortical’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business.
If any Usage Data or any of the audits referred to in clause 4.1 reveal that the Customer has underpaid Subscription Fees to Kortical, then without prejudice to Kortical’s other rights, the Customer shall pay to Kortical an amount equal to such underpayment as calculated in accordance with Kortical’s standard fee schedule or as agreed between Kortical and the Customer within ten (10) Business Days of demand.
Kortical will automatically increase usage restrictions to ensure the continued availability of Services and charge an overage fee see www.korticalchat.com for the latest overage fees.
If the Customer wishes to increase any Usage Restriction or otherwise change its Subscription, the can change this in the billing section or if not available please contact support@kortical.com. Kortical shall respond to the Customer with approval or rejection of the request and the additional fees payable, and the Subscription Fees shall be deemed to be amended accordingly.
During the course of its use of the Services, the Customer shall not, and shall ensure that any End Customers shall not:
5.1.1
use the Services or Kortical Platform in a way that could damage, disable, overburden, impair or compromise any systems, software, website, software applications or security of Kortical or interfere with other users;
5.1.2
collect or harvest any information or data from any Services or Kortical’s systems;
5.1.3
upload content to the Services, make contact with other users, link to the Kortical Platform, or interact with the Services in any way:
5.1.4
access, store, distribute, transmit or submit any viruses.
During the course of its use of the Services, the Customer shall, and shall ensure that any End Customers shall:
5.2.1
ensure that any Contribution is:
5.2.2
ensure that any Contribution does not:
In the event that Kortical considers that a breach of clause 5.1 and/or 5.2 has occurred (in its absolute and sole discretion), Kortical may take such action as it deems appropriate, without liability to the Customer or any End Customer and without prejudice to its other rights and remedies, including:
5.3.1
delete or disable the Customer's or any End Customers’ access to any material that breaches such clause;
5.3.2
suspension of the Customer’s use of the Services;
5.3.3
immediate, temporary or permanent removal of any Contribution;
5.3.4
disclosure of such information to law enforcement authorities as is necessary or as required by law.
The Customer shall not, and shall ensure that any End Customers shall not:
5.4.1
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 the Terms:
5.4.2
access or use all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation or the business of Kortical; or
5.4.3
use or facilitate the use of the Services and/or Documentation other than as expressly permitted by the terms of the Terms.
The Customer shall, and shall ensure that any End Customers shall, use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Kortical.
In the event of:
5.6.1
any unauthorised use of the Services;
5.6.2
any use of the Services that in Kortical’s reasonable judgment threatens the security, integrity or availability of the Services (or services provided by Kortical to its other customers); or
5.6.3
any use of the Services which breaches clause 5.4 and/or 5.5,
Kortical reserves the right, without liability to the Customer or any End Customer and without prejudice to its other rights and remedies, to suspend its provision of the Services, provided that Kortical will use commercially reasonable efforts to notify the Customer and provide the Customer with an opportunity to remedy such violation or threat prior to such suspension.
Kortical shall make the Services and Documentation available to the Customer in accordance with the Terms during the Subscription Term subject to the Customer’s compliance with the technical specifications, instructions and systems requirements for the Services as set out in the Documentation.
Kortical shall provide the Services for the applicable Subscription Level, subject to the Terms and subject to any limitations, exclusions or system requirements set out in the Documentation.
Kortical may change the specification of the Services from time to time. Kortical may also change the Customer’s Subscription Level to the nearest equivalent available subscription level, in the event that Kortical discontinues the Customer’s current Subscription Level from the service catalogue that Kortical generally makes available to its customers. Kortical shall inform the Customer of any such changes and make available an updated version of the Documentation as applicable. The Customer may, acting reasonably, object to such Service changes by notifying Kortical in writing within ten (10) Business Days of receiving notification of the Service changes from Kortical. In the event the Customer so objects within this period, and Kortical and the Customer have not agreed a resolution in writing within twenty (20) Business Days of the receipt of such notice, the Customer may, by providing immediate written notice to Kortical, terminate the Services with respect to the affected Services without liability to Kortical.
Kortical will refund any prepaid portion of the Subscription Fees in respect of the remainder of the Subscription Term following the effective date of termination with respect to such terminated Services under clause 6.3.
The provisions of Schedule 1 shall apply to personal data.
During the Subscription Term, Kortical shall use reasonable endeavours to provide the Services materially in accordance with the Documentation with reasonable care and skill.
The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by, and Kortical is not responsible for any delays, delivery failures, or any other loss or damage resulting from:
8.2.1
use of the Services contrary to Kortical’s instructions, or modification or alteration of the Services by any party other than Kortical or Kortical’s duly authorised contractors or agents;
8.2.2
(i) the transfer of data over communications networks and facilities, the Customer’s or any End Customer’s network connections or telecommunications links, or caused by the internet, (ii) third party service providers, (iii) APIs, systems, platforms and inputs on which the Services rely (and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such);
8.2.3
any period of force majeure as defined in clause 17.1;
8.2.4
any period of planned or unplanned maintenance;
8.2.5
the Customer’s failure to fulfil its responsibilities as set out in these Terms and the Documentation; or
8.2.6
any of the other limitations or exclusions set out in the Documentation.
Notwithstanding the foregoing, Kortical does not warrant that:
8.3.1
the Customer's use of the Services will be uninterrupted or error-free;
8.3.2
that the Services, Documentation and/or the information obtained by the Customer or any End Customer through the Services will meet their requirements; or
8.3.3
the Services will be free from Vulnerabilities or Viruses.
The Agreement shall not prevent Kortical 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 hereunder.
In the event of any loss or damage to Data, the Customer's sole and exclusive remedy against Kortical shall be for Kortical to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by Kortical Kortical shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by any third party.
Kortical shall have the right to use the Customer’s name and logo (a) in a list of Kortical's customers on its website and marketing materials, and (b) with the prior consent of the Customer in any medium for promotional, marketing and financial reporting purposes. The Customer warrants that it has in place and will maintain all necessary rights or licences in respect of the Customer’s name and Marks in order for Kortical to exercise its rights under this clause 8.6.
The Customer shall, and shall ensure that any End Customers shall:
9.1.1
provide Kortical with:
in order to provide the Services, including but not limited to Data, security access information and configuration services;
9.1.2
comply with all applicable laws and regulations with respect to its activities in connection with the Services;
9.1.3
carry out all other Customer responsibilities set out hereunder, in the Documentation and on the Kortical Platform 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, Kortical may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.1.4
configure its access to the Services in accordance with Kortical’s instructions;
9.1.5
obtain and shall maintain all necessary licences, consents, and permissions that it requires in order for Kortical, its contractors and agents to perform their obligations and exercise their rights hereunder, including without limitation the Services;
9.1.6
have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Data;
9.1.7
as between the parties, be responsible for responding to all third party requests concerning the use of the Services by the Customer or any End Customer; and
9.1.8
be, to the extent permitted by law and except as otherwise expressly provided in the Terms, solely responsible for:
If the Customer displays Kortical’s Marks in relation to its use of the Services as expressly permitted or required by the Terms, the Customer shall comply with the Mark Guidelines, as well as any other instructions, directions, restrictions or guidelines Kortical may specify in relation thereto. If the Customer wishes to display Kortical’s Marks in any other way or for any other purpose, the Customer shall seek the prior written consent of Kortical, and if granted such consent, the Customer shall comply with the Mark Guidelines, as well as any other instructions, directions, restrictions or guidelines Kortical may specify in relation thereto.
In consideration of the rights granted in clause 3 and the provision of the Services during the Subscription Term, the Customer shall pay the Subscription Fees for the Subscription Level that the Customer has purchased, in accordance with this clause 10.
The Customer shall on the Effective Date provide to Kortical valid, up-to-date and complete credit card details (and any other relevant or necessary valid, up-to-date and complete contact and billing details) and the Customer hereby authorises Kortical to bill such credit card:
10.2.1
on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
10.2.2
subject to clause 22.1, prior to each Renewal Term for the Subscription Fees payable in respect of the next Renewal Term;
10.2.3
any time for any additional amounts due under clauses 4.2 and 4.3.
Kortical may change the Subscription Fees payable at any time by providing 30 days’ written notice to the Customer. If the Customer does not wish to accept any such increase, the Customer shall be entitled to cancel its subscription to the Services with effect from the effective date of the price increase.
If the Customer’s usage is larger than the Subscription billed for that period then Kortical will automatically charge an overage amount to ensure continued Services. If you do not wish to opt-in to this please contact support@kortical.com to discuss the options available.
If Kortical has not received payment when due under clause 10.1, and without prejudice to any other rights and remedies of Kortical:
10.5.1
Kortical may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Kortical shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
10.5.2
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in these Terms:
10.6.1
are non-cancellable and non-refundable, except as expressly stated herein; and
10.6.2
are exclusive of value added tax or any other equivalent sales tax or similar taxes, which shall be added to Kortical’s invoice(s) at the appropriate rate.
Kortical and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, the Customer acknowledges and agrees nothing grants the Customer or its End Customers any rights to, under or in, any Intellectual Property Rights in respect of the Services or the Documentation.
All related concepts, technical know-how and all modifications, customisations, revisions, bug fixes, enhancements, improvements and derivative works (including as a result of the Customer’s input or feedback) of the Services or the Documentation (collectively, the “Derivative Works”) thereof developed by Kortical or anyone else, including all Intellectual Property Rights therein, shall be owned by Kortical and, except for the expressed limited license granted hereunder, the Customer shall have no rights in or claims with respect thereto.
To the extent it shall be determined that the Customer has any right, including Intellectual Property Rights, in connection with the Services, the Documentation or any Derivative Works, the Customer hereby irrevocably: (i) assigns, by way of present and future assignment, to Kortical, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, that the Customer may have in or to the Services, the Documentation, any Derivative Works and any Intellectual Property Rights therein; and (ii) agrees to take any lawful action, which Kortical reasonably requests to vest or protect Kortical’s right, title and interest in the Services, the Documentation and any Derivative Works (at the Customer’s sole cost).
All uses of a party's Marks under clauses 3.4, 8.6 or clause 9.2, including all goodwill arising, shall accrue solely to the benefit of the party owning the Intellectual Property Rights in those Marks.
The Customer or its licensors own all Data that is not personal data. The Customer grants to Kortical a non-exclusive, royalty-free perpetual, irrevocable worldwide licence, with no end date, for Kortical to (i) access, view and use the Data for the purposes of providing of the Services, and (ii) access, view, use, store, modify, combine and aggregate the Usage Data, for any purpose and in any way whatsoever, and (iii) use the Usage Data to create Derived Data (and all Intellectual Property Rights in such Derived Data shall be owned by Kortical).
In this Paragraph 12, “Confidential Information” means any and all non-public information that would be regarded as confidential by a reasonable business person and relating to the business plans, financial information, operations, processes, know-how, designs, trade secrets or services of the disclosing party as well as such information with respect to a third party disclosed by or on behalf of one party to the other party in connection with the Terms and the Services, whether marked confidential or not.
Each party undertakes (and, in respect of the Customer, it shall ensure that each End Customer undertakes) that it shall not at any time use or disclose to any person (and shall use its best endeavours to prevent the use, publication or disclosure of) any Confidential Information except as permitted by clause 13.3.
Each party may disclose the other party's Confidential Information:
13.3.1
to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause; and
13.3.2
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use any other party's Confidential Information for any purpose other than to perform its obligations under the agreement.
Nothing shall preclude Kortical from identifying the Customer as a customer of Kortical save that Kortical shall not make public the specific nature of any Services performed for or on behalf of the Customer without the prior written consent of the Customer.
The Customer shall indemnify Kortical against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
14.1.1
the Customer's and any End Customer’s use of the Services and/or Documentation;
14.1.2
the Customer’s Marks, or use of Kortical’s Intellectual Property Rights in conjunction with such Marks; and
14.1.3
a Claim that use of the Data infringes a third party’s Intellectual Property Rights.
Except as expressly and specifically provided in the Terms:
15.1.1
the Customer assumes sole responsibility, and Kortical shall have no liability, for results obtained from the use of the Services and the Documentation by the Customer or any of its End Customers, for conclusions drawn by the Customer or any of its End Customers from such use, and for any actions taken by the Customer or any of its End Customers in consequence of such results or conclusions;
15.1.2
Kortical shall have no liability for any damage caused by errors, inaccuracies or omissions in the Data or any other information or instructions provided by the Customer or any of its End Customers in connection with the Services, or any actions taken by Kortical at the Customer's or any of its End Customers’ direction;
15.1.3
Kortical provides the Services “as is” and “as available”; and
15.1.4
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 the Terms.
Kortical assumes no responsibility for and shall have no liability whatsoever to any End Customer or any other third parties and Customer shall indemnify and hold harmless Kortical against any actions, claims or proceedings brought by any End Customer or any third party who uses in any way or is in receipt of (whether directly or indirectly) the Services (or any of the information contained therein) or the Documentation.
Nothing in the Terms excludes or limits the liability of either party:
15.3.1
for death or personal injury caused negligence;
15.3.2
for fraud or fraudulent misrepresentation; or
15.3.3
any other liability which may not be excluded by law.
Subject to clause 15.4 Kortical shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or any special or consequential loss, costs, damages, charges or expenses (in each case whether direct or indirect).
Subject to clause 15.4 Kortical’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services shall be limited to the total Subscription Fees paid or payable by the Customer pursuant to the Terms.
The Services shall, unless otherwise terminated as provided in this clause 16, continue for the Initial Subscription Term and thereafter will automatically renew for successive terms each of equal length to the Initial Subscription Term (each a “Renewal Term”) on the same terms and conditions (subject to any change in the Fees in accordance with clause 10) unless either party provides notice to terminate (including via the Kortical Platform) prior to the end of the Initial Subscription Term or the then-current Renewal Term, as applicable.
If you register for a free trial, Kortical will make the Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period either by time or all free credits are used, or (b) the start date of any payable Subscription Services ordered by you or (c) termination by Company in its sole discretion.
16.2.1
After the free trial period ends if the Customer does not subscribe to the Services then the account and all associated data will be deleted.
16.2.2
If a free trial account remains inactive for more than a month with zero credits used, then Kortical may terminate the Services by giving 7 days prior written notice to reactive the account.
Kortical may terminate the Services for convenience at any time by giving not less than 30 days’ prior written notice to the Customer, and provided that Kortical shall refund the Customer any prepaid portion of the applicable Subscription Fees in respect of the remainder of the applicable Subscription Term following the effective date of termination.
Without affecting any other right or remedy available to it, either party may terminate the Services with immediate effect by giving written notice to the other party if:
16.4.1
the other party fails to pay any amount due on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment;
16.4.2
the other party commits a material breach of any other term of the Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
16.4.3
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
16.4.4
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
16.4.5
the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the agreement has been placed in jeopardy.
Without affecting any other right or remedy available to it, Kortical may terminate the Services with immediate effect by giving written notice to the Customer if:
16.5.1
there is a breach of clause 4; or
16.5.2
if there is a change of Control of the Customer.
On termination of the Services for any reason:
16.6.1
the Customer shall immediately pay all amounts due and outstanding hereunder;
16.6.2
all rights granted hereunder shall immediately terminate and the Customer shall, and shall ensure that its End Customers shall, immediately cease all use of the Services and the Documentation in relation to such;
16.6.3
Kortical shall, at the request of the Customer, destroy or otherwise dispose of any of the Data in its possession as soon as reasonably practicable; and
16.6.4
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
The Customer acknowledges that the Services may enable or assist it to access the website, software application, services or content of and correspond with third parties via third party websites or platforms, and that it does so solely at its own risk. Kortical 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 Kortical. Kortical 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. Kortical does not endorse or approve any third party website nor the content of any of the third party website made available via the Services.
In order for Kortical to provide the Services, the Customer may be required to use Third PartySoftware and obtain Third Party Licences. Third Party Software and/or related documentation may be integrated into the Services where the use of the Services becomes subject to compliance with Third Party Licences obtained by Kortical as further set out in the Documentation. The terms of any such Third Party Licences shall be incorporated into the Terms and may be amended from time to time (and any such amendments shall automatically be incorporated into the Terms immediately). Any Third Party Licences shall survive termination of the Terms.
Kortical may treat the breach by the Customer or any End Customer of any Third Party Licence as a breach of the Terms, and the Customer shall indemnify Kortical for any losses, damages, costs (including legal fees) and expenses suffered by Kortical as a result of the breach of any Third Party Licence by the Customer or any End Customer, howsoever arising.
The Customer acknowledges that the only warranties in relation to the Third Party Software or the supply thereof, are those contained in the relevant Third Party Licence.
Any Open Source Software provided by Kortical shall be used according to the terms and conditions of the specific licence under which the relevant open-source software is distributed, but is provided "as is".
Neither party shall have any liability to the other party if it is prevented from or delayed in performing its obligations (other than payment obligations) hereunder, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party the subject of the force majeure event, or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, pandemic, epidemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other party is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under the Terms 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.
Except as expressly provided in the Terms, the rights and remedies provided under the Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of the Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Terms, and the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
The Terms constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Terms it has not relied on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Terms.
Neither Kortical or the Customer, nor any End Customer, shall have a claim for innocent or negligent misrepresentation based on any statement in the Terms.
The Customer shall not, without the prior written consent of Kortical, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations hereunder.
Kortical may at any time (i) engage subcontractors in the provision of the Services and (ii) assign, transfer, charge or deal with all or any of its rights hereunder.
Nothing in the Terms is intended to or shall operate to create a partnership between the parties, or authorise 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, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
The Terms do not confer any rights on any person or party (other than the parties to the Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice required to be given under the Terms shall be in writing and in English and, where sent (i) in physical form, shall be sent by pre-paid first-class post or recorded delivery post, to the other party at its registered office address, or such other address as may have been notified by that party for such purposes; and (ii) by email to the representative email address notified by that party on the Platform or such other address as may have been notified by that party for such purposes. A notice delivered by pre-paid 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 fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
The Terms 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.
The Customer and Kortical irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Terms or its subject matter or formation (including non-contractual disputes or claims).
29.1.1
SCHEDULE 1 - PERSONAL DATA
1. ROLES OF THE PARTIES
1.1
The parties have determined that Kortical shallprocess personal data as a processor (the “Processor”) on behalf of the Customer (the “Controller”) in respect of the processing activities pursuant to the Terms. Should this determination change, then each party shall work together in good faith to make any changes which are necessary to the Terms.
2. DEFINITIONS
2.1
Terms used but not defined in this Schedule shall have the meaning ascribed to them in the main body of the Terms.
2.2
Specific terms used in this Schedule are set out below.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time in the UK, and the EU where applicable, including, where applicable, the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 (DPA) (and regulations made thereunder) or any successor legislation, and the UK GDPR (which has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications.
data subject, personal data, personal data breach, processing: shall have the meanings given to them in the Data Protection Legislation.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
UK GDPR: has the meaning given to it in the Data Protection Act 2018.
2.3
For the purposes of the Data Protection Legislation, the Customer is the Controller of personal data.
3. TERMS
3.1
Each Party undertakes to comply with all applicable requirements of the Data Protection Legislation in connection with the Terms. This Schedule is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation
3.2
The Processor shall:
3.2.1
process the personal data in accordance with the written instructions of the Controller which shall be to process the personal data for the purposes of complying with the relevant obligations in the Terms (the “Purpose”) and comply with any reasonable instructions from the Controller in respect of the Processing of the personal data, unless the Processor is required by Applicable Laws to otherwise process that personal data. Where the Processor is relying on Applicable Laws as the basis for processing Processor Data, the Processor shall notify the Controller of this before performing the processing required by the Applicable Laws unless prohibit from so notifying the Controller by Applicable Laws. The Processor shall inform the Controller if, in the opinion of the Processor, the instructions of the Controller infringe Data Protection Legislation;
3.2.2
implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, which the Controller has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
3.2.3
ensure that any personnel engaged and authorised by the Processor to process personal data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
3.2.4
assist the Controller insofar as this is possible (taking into account the nature of the processing and the information available to the Processor), and at the Controller's cost and written request, in responding to any request from a data subject and in ensuring the Controller's compliance with its obligations under Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
3.2.5
notify the Controller without undue delay on becoming aware of a personal data breach involving the personal data;
3.2.6
at the written direction of the Controller, delete or return personal data and copies thereof to the Controller on termination of the Terms unless the Processor is required by Applicable Law to continue to process that personal data. For the purposes of this paragraph, personal data shall be considered deleted where it is put beyond further use by the Processor; and
3.2.7
maintain records to demonstrate its compliance with this paragraph and allow for reasonable audits by the Controller or the Controller's designated auditor, for this purpose, on reasonable written notice.
3.3
The Controller hereby provides its prior, general authorisation for the Processor to:
3.3.1
appoint subprocessors to process the personal data, provided that the Processor:
3.4
transfer personal data outside of the UK or EEA (as applicable) as required for the Purpose, provided that the Processor shall ensure that all such transfers are effected in accordance with Data Protection Legislation. For these purposes, the Controller shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
