Last Updated 2th September 2024
1. Definitions and Interpretation
1.1 In addition to any terms defined in the Order Form, the following definitions and rules of interpretation apply to this Agreement:
API means any application programming interface(s) operated or used by Aguru for provision of the Services to the Customer.
App means any authentication application software made available to the Customer by Aguru and through which the Services are delivered.
Authorised Users means those employees and independent contractors of the Customer who are authorised by the Customer to use the Software under and in accordance with this Agreement.
Business Day means a day other than a Saturday, Sunday, or public holiday in England.
Confidential Information means all confidential or proprietary information (however recorded or preserved) disclosed by one Party (the “Disclosing Party”) or the Disclosing Party’s employees, officers, subcontractors, representatives or professional advisers (together, the “Representatives”) to the other Party (the “Receiving Party”) and the Receiving Party’s Representatives, including without limitation the terms of this Agreement, the business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, products, services, data, know-how, or trade secrets of the Disclosing Party, and anything specified as being Confidential Information in clauses 12.4and 12.5.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, and Processing will each have the meaning given to it in the GDPR (and Process, Processes and Processed will be interpreted accordingly).
Customer Data means any commercial or proprietary data which is uploaded or otherwise submitted to the Software directly by the Customer, its Authorised Users, or by Aguru on the Customer’s behalf, including any data submitted into the Software indirectly via any third-party application used by the Customer excluding any Derived Data.
Data Protection Legislation means all applicable privacy and data protection laws, including the GDPR, the Data Protection Act 2018, and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the Processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426)).
Data Processing Agreement: Aguru’s data processing agreement found at DPA.
Data Subject Request means a request from a Data Subject to access, correct, amend, transfer, or delete that Data Subject’s Protected Data consistent with their rights under the Data Protection Legislation.
Derived Data means any data which is derived from the Customer’s use of the Services or the processing by Aguru of Customer Data, which will include: (i) any data which is processed and stored as mathematical constructs; and (ii) statistical or aggregated data, but will exclude any Protected Data.
Documentation means those instructions, manuals, screens, and diagrams distributed or otherwise provided by Aguru that pertain to the Software.
Effective Date means the date identified as such on the applicable Order Form.
Fees means the VAT-exclusive fees payable in consideration of the provision of the Services set out in the Order Form.
Force Majeure Event has the meaning set out in clause 17.3.
GDPR means (as applicable): (i) the EU General Data Protection Regulation (Regulation 2016/679); or (ii) the UK GDPR as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Insolvency Event means, with respect to a Party: (a) entering into a composition or arrangement with its creditors other than for the sole purpose of a solvent reconstruction; (b) an inability to pay its debts as they become due; (c) a person becoming entitled to appoint or appointing a receiver or an administrative receiver over that Party’s assets; (d) a creditor or encumbrancer attaching or taking possession of the whole or any part of that Party’s assets which is not discharged within fourteen (14) calendar days; (e) applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986; or (f) the occurrence of any event or taking of any action in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in (a) to (e) above.
Intellectual Property Rights means any and all patents, rights to inventions, copyright and neighbouring and related rights, trade marks, rights in get-up, database rights, databases, domain names, business names, rights in computer software, goodwill, 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.
Live Services Commencement Date means the date that the Services shall be available to the Customer in full and not on a trial basis, such date to be agreed between the Parties.
Losses means any and all losses, liabilities, costs (including costs of investigation, litigation, settlement, and judgement), claims, damages, demands, disbursements, expenses (including legal costs on a solicitor and own-client basis), fees, interest, and penalties (including fines imposed by regulatory bodies or supervisory authorities), whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation, or otherwise.
Normal Business Hours means 9.00 am to 5.00 pm local UK time during a Business Day.
On-Premises Software means the additional software provided by Aguru to be installed and run on the Customer’s own hardware facilities as set out in the Order Form.
Order Form means either: (i) a written request by the Customer (in terms agreed with Aguru) for the provision by Aguru of the Services in such form as Aguru may require, which is executed by Aguru and the Customer; or (ii) the description of the Services to be provided on such terms as more fully described on the Aguru website, and such equivalent details (for example the email address for notices) as is provided by the Customer as part of the trial sign up process on the Aguru website.
Party means a party to this Agreement, being either Aguru or the Customer, and Parties means both of them.
Protected Data means any Personal Data contained in the Customer Data and which Aguru receives from the Customer in connection with the performance of the Services under and pursuant to this Agreement.
Services means the provision by Aguru of access to the Software to allow Authorised Users to access and use the Software on the Customer’s behalf, and the On-Premises Software to be provided under this Agreement (in each case as applicable and given the context in which the term “Services” is used).
Software means Aguru’s LLM Routing and Caching Solution software application (including any related API, App, or Website from time to time) to which the Customer will be granted remote access pursuant to the terms and conditions of this Agreement.
Specification means the functional specification for the Software as set out in the Documentation.
Sub-Processor means any natural or legal person, public authority, agency, or other body which Processes Personal Data on behalf of a Controller or a Processor.
Model Fees means the VAT-exclusive model fees detailed in the Order Form payable by the Customer to Aguru for the LLM model chosen by the Customer (as amended from time to time in accordance with the terms and conditions of this Agreement).
Trial Basis means, in relation to the provision of the Software, or other Services such provision on the basis of beta access or testing or on the basis of evaluation, preview, pre-release, prototype, or pilot.
Trial Period means the period during which the Services may be used on a Trial Basis, as set out in the Order Form, or otherwise agreed by Aguru.
VAT means United Kingdom value added tax (or any other tax imposed in substitution for it) or any other tax imposed of an equivalent or similar nature or function supplementary or complementary to it or any such substitute (and any equivalent or similar tax imposed outside the United Kingdom).
Virus means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, network, data, or the user experience, including worms, Trojan horses, viruses, and other similar things or devices.
Website means any website operated by Aguru through which the Software is delivered to or accessed by the Customer.
1.2 In this Agreement: (a) clause, Schedule and paragraph headings will not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular; (c) a reference to writing or written includes email; (d) references to clauses and Schedules are respectively to the clauses of and schedules to this Agreement, and references to paragraphs are to paragraphs of the relevant Schedule; (e) any words following the expressions including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those expressions; (f) a reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, consolidation, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it; and (g) a reference to either Party will include such Party’s successors and assigns (immediate or otherwise).
1.3 If there is any inconsistency or conflict between the provisions of this Agreement, such inconsistency or conflict will be resolved according to the following descending order of priority: (i) the provisions contained within the row entitled ‘Special Conditions’ (if any) in the Order Form; (ii) the remainder of the Order Form; (iii) Schedule 2; (iii) the main body of the Subscription Terms; and (iv) the remaining Schedules.
2.2 Trial Period
2.1 This clause 2 applies only where the Customer is provided with access to the Services on a Trial Basis. To the extent that there is an inconsistency or conflict between this clause 2 and another provision of these Subscription Terms, the provisions of this clause 2 shall prevail in respect of the Trial Basis only.
2.2 The rights provided under clause 3.1 are provided solely on a Trial Basis for the Trial Period. The Trial Period for On-Prem Services is 60 days, unless agreed otherwise with Aguru.
2.3 Any Software or Services made available to the Customer on a Trial Basis are made available “as is” and to the fullest extent permitted by applicable law, all warranties, express, implied or otherwise (including those pertaining to merchantability and fitness for purpose), are excluded during a Trial Period.
2.4 Customer acknowledges and agrees that full functionality and access (as set out in the Documentation) may be restricted during the Trial Period, in accordance with the Order Form or as otherwise notified to the Customer by Aguru.
2.5 Aguru may terminate a Trial Period at any time for any reason without liability.
2.6 Subject to clause 2.5, the Parties may mutually agree to extend the Trial Period.
2.7 On expiry of the Trial Period or upon mutual agreement, the Customer’s access to the Services will
2.7.1 cease; or
2.7.2 convert to a paid deployment.
2.8 In the case that the Services transfer to a full paid Service under clause 2.7.2, Aguru will invoice the Customer using the fee structure set out on the Website found here: https://aguru.com/pricing/.
2.9 Customer recognises that during the Trial Period, Aguru shall consider what degree of usage by the Customer is reasonable. Aguru reserves the right to change any such usage limits on very short notice to the Customer, to reflect the nature of this trial and the collaborative relationship between the Parties during the Trial Period, under which the Customer is providing feedback to Aguru which Aguru may incorporate into the Software and/or Services.
2.10 Customer recognises that Aguru has the right to terminate the Customer’s access to and/or remotely disable the On-Premises Software during a Trial Period.
2.11 Aguru’s maximum aggregate liability (whether in contract, tort or otherwise) during a Trial Period will be limited to one thousand pounds (£1,000.00).
3. Access to the Software
3.1 Subject to the Customer paying any appropriate Fees and complying with the terms and conditions of this Agreement, Aguru hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, and revocable right to permit the Authorised Users to access and use the Software solely during the Term.
3.2 The Customer will not access, store, distribute or transmit any Viruses or any material during its use of the Software that is illicit, fraudulent, defamatory, libellous, threatening or harassing, obscene, indecent, seditious, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous, unlawful, harmful, infringing, offensive, or discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. Aguru reserves the right, without liability or prejudice to its other rights, to disable the Customer’s and Authorised Users’ access to any material that breaches the provisions of this clause 3.2.
3.3 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, the Customer will not, and will not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means, or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (including its object code and source code).
3.4 The Customer will not, and will not attempt to: (a) access all or any part of the Software in order to build a product or service which competes with the Software; (b) make the Software or any of the Services available to any third party except to Authorised Users; or (c) attempt to obtain, or assist any third party in obtaining, access to the Software, other than as provided under this clause 3.
3.5 The Customer will use its best endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify Aguru in writing thereof.
3.6 The Customer acknowledges and agrees that each Authorised User must keep a secure password for their use of the Software which must be kept at all times strictly confidential and secure against unauthorised access or use (including by any other Authorised User). The Customer shall immediately notify Aguru in writing as soon as it, or any Authorised User, suspects that the confidentiality or security of any such password has been compromised in any way (and, in such circumstances, the Customer will ensure that the relevant Authorised User(s) immediately disable and change the relevant compromised password(s)).
3.7 The rights provided under this clause 3 are granted to the Customer only and will not be considered granted to any affiliate, subsidiary, or holding company of the Customer.
4. Fees
4.1 This clause 4 applies only where the Customer is provided with full access to the Services and not on a Trial Basis.
4.2 The Fees:
4.2.1 for the Software shall be determined by the Customer’s expected usage as set out in the Order Form; and
4.2.2 for the On-Premises Software shall be determined in accordance with the pricing model shared on the Website,
together, the “Fees”.
4.3 The Customer may control the usage of the Software at any time through the Website, with charges pursuant to clause 4.2.1 being based on the actual usage. Aguru will monitor the Customer’s use of the Software.
4.4 In the event that the Customer attempts to exceed the permitted usage of the Software, Aguru reserves the right to, on one (1) week’s written notice, automatically restrict the Customer’s access to the Software. The Customer will retain access to the semantic cache functionality but will be prevented from using the full LLM Routing capabilities until either:
4.4.1 the Customer lowers their usage to the agreed limits; or
4.4.2 the Customer agrees to an appropriate Fee for that increased usage based on the pricing tier for the Customer’s expected usage.
4.5 If the Customer wishes to change the LLM model used, it may incur additional charges as set out on the Website.
5. Use of the Software
5.1 The Customer may provide input to the Software (“Input(s)”), and receive output generated and returned by the Software based on the Input (“Output(s)”). As between the parties and to the extent permitted by applicable law, the Customer owns all right and title to the Input and Output. Aguru and its licensors use Input and Output to provide and maintain the Software, comply with applicable law, and enforce our policies. The Customer is responsible for the Inputs, including for ensuring that it does not violate any applicable law or this License Agreement.
5.2 The Customer acknowledges that Outputs provided to it may be similar or identical to Outputs independently provided by Aguru to others.
5.3The use of the Software may result in incorrect Outputs. The Customer should review and verify all Output (including the accuracy of any Output) as appropriate for the Customer’s use case, such as by ensuring appropriate human review of any Output.
5.4 The Customer must not:
5.4.1 use the Software or any Output to develop, train or improve any artificial intelligence or machine learning models (separate from authorised use of the Software under this Agreement);
5.4.2 use the Output to develop and product or service which competes with Aguru;
5.4.3 except as permitted through the API, use any automated or programmatic method to extract data or an Output, including scraping, web harvesting, or web data extraction;
5.4.4 represent any Output as being approved or vetted by Aguru;
5.4.5 represent any Output as being an original work or a wholly human-generated work;
5.4.6 use the Software for automated decision-making that has legal or similarly significant effects on individuals, unless it does so with adequate human review and in compliance with applicable law;
5.4.7 use the Software for purposes or with effects that are discriminatory, harassing, harmful or unethical; and
5.4.8 send Aguru any personal information of children under 13 or the applicable age of digital consent.
6. On-Premises Software
6.1 In addition to the Services provided under this Agreement, Aguru may provide On-Premises Software to the Customer as specified in the Order Form or as otherwise agreed in writing between the Parties.
6.2 Subject to the terms of this Agreement, Aguru hereby grants to the Customer a non-exclusive, non-transferable licence to use the On-Premises Software solely for the Customer’s internal business operations. The Customer shall not use the On-Premises Software for any purpose beyond the scope of the licence granted.
6.3 The Customer shall be responsible for the installation of the On-Premises Software on its own hardware facilities and complying with any Dependencies as set out in the Order Form. The Customer shall ensure that the On-Premises Software is used in accordance with this Agreement and shall be responsible for the supervision, management, and control of the use of the On-Premises Software.
6.4 Aguru shall provide standard support and maintenance services for the On-Premises Software via the in-product messaging service, unless otherwise specified in the Order Form. The Customer may be required to pay additional Fees for enhanced support or maintenance services.
6.5 Aguru may, from time to time, provide updates or upgrades to the On-Premises Software. Such updates and upgrades shall be subject to the terms and conditions of this Agreement and may require additional Fees as agreed by the Parties.
6.6 The Customer shall permit Aguru to audit the use of the On-Premises Software to ensure compliance with this Agreement. Such audits shall be conducted in accordance with the provisions of clause 15 of this Agreement. Customer acknowledges that remote monitoring functionality may be included in the On-Premises Software to ensure Customer’s compliance with this Agreement, and for analytics purposes.
6.7 Upon termination of this Agreement, the Customer shall cease all use of the On-Premises Software and shall promptly return or destroy all copies of the On-Premises Software in its possession or control, in accordance with the provisions of clause 16.6 of this Agreement.
7. Aguru’s Obligations
7.1 Aguru will: (a) provide the Services to the Customer on and subject to the terms and conditions of this Agreement; and (b) use commercially reasonable endeavours to ensure that the Software conforms to the Specification in all material respects.
7.2 Notwithstanding clause 7.1, the Customer acknowledges that the Software and On-Premises Software may evolve over time and that functionality may be added or removed from time to time. Aguru may, without limitation to the generality of this clause 7.2, establish new limits on the Services (or any part thereof), including limiting the volume of data which may be used, stored, or transmitted in connection with the Services, remove or restrict application programming interfaces, or make alterations to data retention periods, provided such changes are notified to the Customer in writing reasonably in advance.
7.3 Without prejudice to the generality of clause 14.3, Aguru does not warrant that the Customer’s use of the Software will be uninterrupted or error-free, or that the Software and/or the information or results obtained by the Customer through its use of the Software will meet the Customer’s requirements. Subject to its obligations under Data Protection Legislation, Aguru is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of Customer Data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Software and On-Premises Software may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
7.4 Aguru will not be liable for any breach of its obligation under clause 7.1(b) to the extent any non-conformance with the Specification is caused by the Customer’s use of the Software or On-Premises Software contrary to Aguru’s instructions, or modification or alteration of the Software by any party other than Aguru or Aguru’s duly authorised contractors or agents.
7.5 If the Software does not conform materially with the Specification, Aguru will, at its expense, use commercially reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the expected result or function stipulated in the Specification. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for such non-conformance.
7.6 This Agreement will not prevent Aguru from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products, and/or services which are similar to those provided under this Agreement.
8. Customer’s Obligations
8.1 The Customer will fully cooperate with Aguru in all respects in relation to this Agreement, including granting to Aguru all necessary access to information and Customer Data as may be required by Aguru from time to time to fulfil its obligations under this Agreement, including without limitation granting to Aguru full and unrestricted access to the Customer’s account in order for Aguru to provide support for, or to fix any errors in, the Software or On-Premises Software.
8.2 The Customer will be solely responsible for setting the access rights for each of its Authorised Users and will ensure that all Authorised Users’ use of the Software is strictly in accordance with the terms and conditions of this Agreement. The Customer will be fully responsible for any Authorised User’s breach of this Agreement.
8.3 The Customer is responsible for providing any Dependencies stated in the Order Form and will ensure that its network and systems comply with the relevant specifications provided by Aguru from time to time necessary for the operation of the Software and On-Premises Software. The Customer will be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to Aguru’s data centres. The Customer further acknowledges that the Services do not include any services, systems, or equipment required to access the Internet (and that the Customer is solely responsible for procuring access to the Internet and for all costs and expenses in connection with Internet access, communications, data transmission, and wireless or mobile charges incurred by it in connection with use of any of the Services) or any dedicated data back-up or disaster recovery facilities (and the Customer will ensure at all times that it maintains back-ups of all Customer Data).
8.4 The Customer will comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
8.5 The Customer must ensure that during any Trial Period or Term thereafter, that it uses the Software and/or Services within reasonable limits set by Aguru from time to time (such as in connection with the number of API calls being made by the Customer). Aguru reserves the right at its discretion to terminate or suspend the Customer’s use of the Software, if the Customer repeatedly exceeds the reasonable use limitations made known to the Customer from time to time. For the avoidance of doubt, Aguru shall in its sole discretion decide when usage is deemed excessive.
9. Suspension of Service
9.1 Aguru may suspend the access to or use of the Software by any or all of the Authorised Users if:
9.1.1 Aguru determines that the Customer’s (or any Authorised User’s) use of the Services is in breach of this Agreement, poses a security risk, or is adversely impacting or may adversely impact the Services or any service provided by Aguru to a third party; or
9.1.2 it is in the legitimate interests of Aguru to do so, including where there is a reasonable risk that the Customer may default in the payment of the Fees, and Aguru will use its reasonable endeavours to notify the Customer before the suspension takes effect or as soon as reasonably practicable thereafter.
9.2 Where Aguru suspends access to or use of the Software under clause 8.1, the Customer remains responsible for all Fees.
10. Customer Data and Derived Data
10.1 The Customer will own all right, title, and interest in and to all the Customer Data and will have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data.
10.2 The Customer warrants and represents that it has the authority, including all necessary rights, licences, and permissions, to upload and use, and to permit Aguru to use and Process the Customer Data in accordance with this Agreement.
10.3 The Customer hereby grants to Aguru a worldwide, non-exclusive, irrevocable, royalty-free and fully paid-up licence during the Term to use and access the Customer Data for the purpose of providing the Services.
10.4 The Customer acknowledges that Aguru may use the Customer Data to improve the performance and functionality of the Software to develop improvements, updates, upgrades, modifications, or derivative works thereof which will constitute Improvements (as defined in clause 11.3).
10.5 Aguru may track and analyse the Customer’s and its Authorised Users’ use of the Software for the purposes of security and to help Aguru improve the Services, including the Software.
10.6 Each Party will comply with its obligations under the Data Processing Agreement. The Data Processing Agreement is in addition to, and does not relieve, remove, or replace, the Parties’ respective obligations or rights under the Data Protection Legislation.
10.7 The Customer will on first demand fully indemnify and hold harmless Aguru (and keep Aguru fully indemnified) from and against any and all Losses arising directly or indirectly out of, from, under, or in relation to any third-party claim that the Processing and use of the Customer Data in accordance with this Agreement infringes or misappropriates any third-party Intellectual Property Rights or breaches Data Protection Legislation.
11. Fees and Payment
11.1 The Customer will pay to Aguru the Fees set out in the Order Form in accordance with this clause 11 and any payment terms specified in the Order Form without set-off in respect of any liability of Aguru.
11.2 Aguru will invoice the Customer for the Fees at the intervals specified in the Order Form and the Customer will pay each invoice in full and cleared funds within thirty (30) calendar days of the date of such invoice.
11.3 If Aguru has not received payment by the due date, and without prejudice to any other rights and remedies of Aguru, Aguru may, without liability: (i) disable the Customer’s (and any and all Authorised Users’) access to all or part of the Software until the invoice(s) concerned are paid in full; and/or (ii) charge the Customer interest on a daily basis on any overdue amounts commencing on the due date and continuing until fully paid, whether before or after judgement.
11.4 Fees are payable in the currency detailed in the Order Form and are non-cancellable and non-refundable. Fees are stated exclusive of VAT, which will be added to Aguru’s invoice(s) at the appropriate rate.
11.5 The Customer will make all payments under this Agreement without withholding or deduction of, or in respect of, any and all taxes, unless required by law. If any such withholding or deduction is required, the Customer will, when making the payment to which the withholding or deduction relates, pay to Aguru such additional amount as will ensure that Aguru receives the same total amount that it would have received if no such withholding or deduction had been required.
11.6 Aguru will be entitled to increase the Fees at the start of each Renewal Term upon thirty (30) calendar days’ prior written notice to the Customer.
12. Intellectual Property Rights
12.1 All Intellectual Property Rights in and to the Software, the Services, the Derived Data, and the On-Premises Software, will belong to and remain vested in (or automatically upon creation will vest in), Aguru. Except for the licence granted to the Customer in clause 3.1, nothing in this Agreement grants to the Customer any rights to or in any Intellectual Property Rights in the Software or the Services.
12.2 Any bespoke or custom work created by Aguru for the Customer shall remain vested with Aguru.
12.3 Without prejudice to clause 3.4 or clause 11.1, to the extent that the Customer’s or any Authorised User’s use of the Software or On-Premises Software results in any modifications, adaptations, developments, or any derivative works of or to the Software or the Services (Improvements), then notwithstanding any rights or remedies of Aguru under clause 3.4 above, any and all rights and title in and to such Improvements will immediately vest in and be owned absolutely by Aguru (and, to the extent that, by operation of law or otherwise, the ownership of such rights do not vest in Aguru, Aguru will have all exclusive rights of use and exploitation in the Improvements unlimited as to time, territory, and exploitation method).
12.4 Aguru may use and exploit any feedback and suggestions for improvement relating to the Services provided by the Customer or any Authorised User, which shall also be considered Improvements for the purposes of this Agreement.
12.5 Aguru makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Software or On-Premises Software.
12.6 Aguru will defend the Customer against any third-party claim that the Customer’s use of the Software in accordance with this Agreement infringes any third-party Intellectual Property Right (an IP Claim) and, subject always to clauses 12.8, 12.9and 14.6 will indemnify Customer from and against any damages suffered or incurred by Customer and which are finally awarded by a court of competent jurisdiction or required to be paid under the terms of a full and final settlement of any such IP Claim, provided that: (i) Aguru is given prompt written notice of such IP Claim by the Customer, which notice will set forth all relevant details and particulars of such IP Claim in reasonably comprehensive detail; (ii) the Customer provides reasonable co-operation to Aguru in the defence and settlement of such IP Claim, at Aguru’s reasonable expense; (iii) Aguru is given sole authority to defend or settle such IP Claim; (iv) the Customer makes no admission of liability or fault itself or on behalf of Aguru; (v) the Customer uses its best endeavours to mitigate any and all losses, liabilities, expenses, costs, and/or damages that it suffers or incurs under or in connection with such IP Claim; and (vi) in the event Aguru undertakes any of the remedial actions described in clause 12.7 below, the Customer will (and will ensure that all its personnel and Authorised Users will) immediately upon Aguru taking such action cease to use any part of the Software, On-Premises Software or Services that are the subject of the relevant IP Claim.
12.7 In the defence or settlement of any IP Claim pursuant to clause 12.6 above, Aguru may at its sole and absolute discretion (and Aguru’s own expense) either: (i) procure for the Customer the right to continue using the Software or On-Premises Software in the manner contemplated by this Agreement; (ii) replace or modify the Software or On-Premises Software so that it becomes non-infringing; or (iii) terminate this Agreement immediately by providing written notice to the Customer, without liability to the Customer.
12.8 The remedies set forth in clauses 11.5 and 11.6 constitute the Customer’s sole and exclusive remedies (and Aguru’s sole and entire liabilities) in respect of any actual, alleged, or reasonably likely IP Claim.
12.9 Aguru will not in any circumstances have any liability (including in respect of the indemnity provided under clause 12.5) if the IP Claim is based in whole or in part on: (i) any modification of the Software, On-Premises Software or any Services (or any part thereof) by anyone other than Aguru; (ii) the Customer’s or any Authorised User’s use of the Software, On-Premises Software or the Services otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to the Customer by Aguru; (iii) the Customer’s or ay Authorised User’s use of the Software, On-Premises Software or the Services after notice of the alleged or actual infringement from Aguru or any appropriate authority; (iv) use or combination of the Software, On-Premises Software with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred; (v) the Customer Data; (vi) any breach of this Agreement by the Customer; or (vii) the Customer’s use of or access to the Software or On-Premises Software under or in connection with any Service identified in the Order Form as being provided on a Trial Basis (for the duration of the period during which it is provided on a Trial Basis) or for no monetary charge.
12.10 The Customer will defend Aguru against, and fully indemnify Aguru (and keep Aguru fully indemnified) from and against any and all Losses incurred by Aguru in respect of any third-party claim relating to the Customer’s or any Authorised User’s use of the Software or On-Premises Software otherwise than in accordance with this Agreement, provided that: (i) the Customer is given prompt notice of such claim; (ii) Aguru provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and (iii) the Customer is given sole authority to defend or settle the claim; and (iv) Aguru makes no admission of liability or fault itself or on behalf of the Customer.
12.11 The Customer grants Aguru permission to use the Customer’s name and logo on the Supplier’s website for the purpose of marketing and selling the Services to third parties.
13. Confidential Information
13.1 Each Receiving Party will keep confidential and not use for any purpose other than the performance of its obligations (and exercise of rights) under this Agreement, all Confidential Information of the Disclosing Party.
13.2 Each Receiving Party will only disclose or reveal any of the Disclosing Party’s Confidential Information to: (i) those of its Representatives who are required in the course of their duties to receive it for the purpose for which it is supplied (provided that each Party will ensure that any such Representatives to whom the Receiving Party discloses the Disclosing Party’s Confidential Information comply with this clause 13.2); and (ii) any court, governmental or administrative authority competent to require the same, or as required by any applicable law, regulation, or governmental or regulatory body which is lawfully entitled to require the disclosure (and in each such case, the Receiving Party will, if legally permissible, notify the Disclosing Party in writing of such requirement as soon as reasonably practicable and use commercially reasonable endeavours to discuss with the Disclosing Party and agree any possible limitations or restrictions on disclosure in advance to the extent permitted by law).
13.3 The provisions of clauses 13.1 and 13.2 will not apply to information that: (i) is or becomes generally available in the public domain otherwise than arising in connection with a breach of this clause by the recipient; (ii) is lawfully in the Receiving Party’s possession free of any restrictions as to its use or disclosure at the time of disclosure by the Disclosing Party; (iii) is lawfully acquired from an independent third party who did not itself obtain it under an obligation of confidentiality; (iv) is independently developed without access or reference to any information disclosed by the Disclosing Party; or (v) is trivial or obvious.
13.4 The Customer acknowledges that the Software and On-Premises Software, including the way in which data, information, works, and materials are visualised when using, or are otherwise presented by, the Software and the results of any performance tests of the Software, constitute Aguru’s Confidential Information. The Customer recognises that any breach or threatened breach by the Customer of this clause 13 may cause Aguru irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to Aguru, the Customer acknowledges and agrees that Aguru is entitled to the remedies of specific performance, injunction, and other equitable relief without proof of special damages.
13.5 Aguru acknowledges that the Customer Data is the Confidential Information of the Customer.
13.6 The provisions of this clause 13 will survive the termination or expiry of this Agreement (however arising) and continue in full force and effect.
14. Limitation of Liability
14.1 This clause 14 sets out the entire financial liability of Aguru to the Customer arising under or in connection with this Agreement, including in respect of any use made by the Customer or its Authorised Users of the Software , On-Premises Software and the Services.
14.2 Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for any information or results obtained by Authorised Users from use of the Software and On-Premises Software, and for conclusions drawn from such use. Aguru will, subject to clause 14.4, have no liability for any damage caused by errors or omissions in any information or data, or any actions taken by Aguru at the Customer’s direction. No other party is entitled to rely on the output, information, or results produced by the Customer through its use of the Software for any purpose whatsoever.
14.3 Except as expressly and specifically provided in this Agreement, 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. The Customer acknowledges that the Software, On-Premises Software, the Services, and any information provided by or on behalf of Aguru are provided to the Customer on an as is basis. Save as expressly stipulated in this Agreement, no assurance, warranty, or representation is given hereunder by Aguru that any of the Services (or any part thereof) will comply with or will satisfy any legal or regulatory obligation of any person.
14.4 Nothing in this Agreement excludes either Party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
14.5 Subject to clause 14.4, Aguru will not be liable for: (i) any consequential, indirect, special, incidental, punitive or exemplary Losses, whether foreseeable or unforeseeable; or (ii) any of the following Losses (in each case whether direct or indirect): loss of profit; loss of business opportunity or agreements in contracts; loss of or damage to goodwill or reputation; loss or corruption of data, software or information; wasted expenditure or charges; Losses arising from the lawful termination of this Agreement by Aguru; Losses caused or contributed to by the Customer or any agent or Representative thereof; Losses caused as a result of the Software being unavailable as a result of planned downtime for the Software, as notified to the Customer from time to time; Losses arising from any failure of the Customer’s infrastructure and/or utilities; Losses caused as a result of the Software or On-Premises Software being unavailable due to a Force Majeure Event; or Losses caused by the failure or delay of any third-party application or service or network.
14.6 Subject to clause 2.10 and 14.4, Aguru’s total liability (whether arising in contract, in tort (including negligence) or restitution, for breach of statutory duty or misrepresentation, or otherwise) arising directly or indirectly out of, under, due to, or in connection with this Agreement will in all circumstances be limited in the aggregate to the total Fees already paid by the Customer to Aguru during the period of twelve (12) consecutive months immediately preceding the date of the first event giving rise to Aguru’s liability.
15. Audit
15.1 During the Term, and for a period of twenty-four (24) months thereafter, the Customer will maintain full and accurate records relating to its and its Authorised Users’ use of and access to the Services. Aguru is entitled on reasonable notice to the Customer from time to time to require the Customer to permit or procure the permission for a duly authorised employee, agent or representative of the Aguru to audit the use of the Software and On-Premises Software, and to assess compliance with this Agreement, including for this purpose to access premises and systems, and to take copies of relevant records. Customer shall provide Aguru with copies of such relevant records within two (2) Business Days of receipt of the Aguru’s request.
15.2 Aguru may monitor performance of the Services and collect, store and use information (including Customer Data) on the performance of the Services to detect threats or errors to the Services, for the purpose of the development and improvement of the Services, and for improving Aguru’s operations, provided that such activities comply at all times with the Data Protection Legislation.
16. Term and Termination
16.1 This Agreement will commence on the Effective Date and continue for the Term, unless terminated in accordance with this Agreement.
16.2 If the Customer wishes to terminate this Agreement during a Renewal Term (or fails to give the requisite termination notice to Aguru prior to the start of a new Renewal Term), the Fees due for the remainder of that Renewal Term will become immediately due and payable to Aguru within thirty (30) Business Days.
16.3 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if: (i) the other Party fails to pay any amount due under this Agreement 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; or (ii) if the other Party commits a material breach of any terms of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within ten (10) Business Days after being notified in writing to do so; or (iii) the other Party suspends, ceases, or threatens to suspend or cease carrying on its business or a substantial part thereof, or suffers an Insolvency Event.
16.4 Without prejudice to any other rights or remedies hereunder to which Aguru may be entitled, if Aguru knows or has reasonable grounds to suspect that the Customer is acting in breach of its obligations under this Agreement (including failure to pay the Fees), Aguru may notify the Customer in writing accordingly and may suspend the Customer’s and all Authorised Users’ access to the Software until such breach can be remedied, or until Aguru is satisfied, acting reasonably, that its suspicions are unfounded.
16.5 Without affecting any other right or remedy available to it, Aguru may (solely to the extent that the Services hereunder are provided on a Trial Basis) terminate this Agreement without cause at any time by way of written notice to the Customer (such notice having immediate effect). For the avoidance of doubt, Aguru reserves the right to suspend the Customer’s use of the Services during the Term for cause.
16.6 On termination or expiry of this Agreement for any reason: (a) all licences and rights granted by Aguru under this Agreement will immediately terminate and cease to be valid; (b) all Fees which are outstanding on the date of termination will become immediately due and payable; (c) subject to the terms and conditions of this Agreement, each Receiving Party will return to the Disclosing Party (or, at such Disclosing Party’s direction, destroy) and make no further use of any of the Disclosing Party’s Confidential Information, and each party will make no further use of any equipment, property, and other items (and all copies of them) belonging to the other Party; and (d) 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 this Agreement which existed at or before the date of termination will not be affected or prejudiced.
17. General
17.1 Entire agreement. This Agreement constitutes 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. The terms and conditions contained in this Agreement will be to the exclusion of all other terms and conditions relating to the same, including without limitation (to the fullest extent permitted by applicable laws) any terms or conditions implied by law, trade custom, practice, and/or course of dealing, and/or any terms or conditions that the Customer may purport to apply, impose, or incorporate under any offer, acknowledgement, correspondence, or any other document issued by the Customer. Accordingly, no terms or conditions endorsed on, delivered with, or contained in any purchase order, specification, or other document issued by the Customer will form part of this Agreement. Any terms or conditions of the Customer diverging from the provisions hereof will not be valid, even if Aguru effects delivery or renders any part of the Services without reservation.
17.2 Assignment. The Customer will not assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of Aguru. Aguru may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement without requiring any additional consent from the Customer.
17.3 Force Majeure. Neither Party is responsible for failing to fulfil its obligations (other than its payment obligations) under this Agreement due to causes beyond its reasonable control that directly or indirectly delay, hinder, or prevent timely performance (“Force Majeure Event”). Any dates or times by which each Party is required to render performance under this Agreement will be postponed automatically to the extent that the Party is delayed or prevented from meeting them by a Force Majeure Event. If the Force Majeure Event prevents, hinders, or delays the affected Party’s performance of its obligations for a continuous period of more than thirty (30) calendar days, the affected Party may terminate this Agreement by giving thirty (30) calendar days’ written notice to the other Party.
17.4 Notices. Any notice to be given under this Agreement will be by email to the Party concerned at the relevant email address shown at the top of this Agreement (or such other address as may be communicated by the relevant recipient Party to the other from time to) and will take effect: (i) ifsent during Normal Business Hours, at the time the email was sent; or (ii) if delivered outside of Normal Business Hours, the next Business Day at 9.00 am.
17.5 Variation. No variation of this Agreement will be effective unless it is set forth in a written document that expressly refers to this Agreement and that is signed by the Parties (or their duly authorised Representatives).
17.6 Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will 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 will prevent or restrict the further exercise of that or any other right or remedy.
17.7 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal, or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity and enforceability of the rest of this Agreement.
17.8 Relationship. The relationship between the Parties is that of independent contractors and nothing in this Agreement will be construed to create a partnership, joint venture, employment, or agency relationship between the Parties, nor authorise any Party to make or enter into any commitments for or on behalf of the other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person. The Parties acknowledge that the arrangements between them are non-exclusive. Nothing contained in this Agreement will prohibit either of the Parties from conducting business activities with other third parties.
17.9 Third-party rights. A person who is not a Party to this Agreement will not have any right to enforce any term of this Agreement under the Contracts (Rights of Third Parties) Act 1999.
17.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed will constitute a duplicate original, but all the counterparts will together constitute the one agreement.
17.11 Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by, and construed in accordance with, English law.
17.12 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, its subject matter or formation.
