Customer Terms

1. Account and Registration

1. We are Rightbrain AI Limited, a company registered in England with company number 14960427 and its registered office at The Grainger Suite, Dobson House, Regent Centre, Gosforth, Newcastle Upon Tyne, United Kingdom, NE3 3PF.
2. If you wish to use the Services on behalf of an organisation, you represent that you have authority to enter, and are entering, into this Agreement on behalf of that organisation. From this point onwards, references to ‘you’ in these Customer Terms are references to your organisation.
3. You access the Services through a Customer Account. You have one Customer Account, and all of your Authorised Users access the Services through it. We will provision your Customer Account either (i) following the mutual execution of an Order Form or other written agreement with us (such as a partner agreement); or (ii) where you access the Services through an authorised partner or reseller of Rightbrain, on creation of your Customer Account and your acceptance of these Terms (including via any click-through presented at sign-up or first login). The Services are governed by these Terms and the other documents incorporated by reference as set out in Clause 18 - Definitions and Interpretation.
4. Subject to the terms of this Agreement, we will provide the Services to you during the Term.

2. Third Party Services

1. Third Party Services may be made available to you through our Services. These Third Party Services are governed by their own terms and conditions, which you must agree to and follow. This Agreement does not change or modify any Third Party Terms, except as explicitly stated in this Agreement.
2. Where we make generative AI available to you as a Third Party Service, we will transmit Customer Data to such Third Party Service only as necessary to perform the services requested by you, and will:
   1. ensure that Customer Data are not used to train, fine tune or otherwise develop Third Party Service models; and
   2. make reasonable efforts to agree contracts and configure each Third Party Service to ensure that Customer Data are not retained by the Third Party Service for longer than is necessary to perform the processing operation requested by you.
3. We give no commitment that any particular Third Party Service, or any particular model made available through a Third Party Service, will remain available through the Services. Where a Third Party Service or model is withdrawn, modified or deprecated by the third party providing it, or ceases to be available to us, we may cease to make it available to you.

3. Your Obligations

1. You undertake that:
   1. you will not allow your Customer Account to be used by any other person;
   2. you will take reasonable measures to secure the Authentication Method associated with your Customer Account; and
   3. you will let us know immediately if you believe the security of your Customer Account has been compromised.
2. You will ensure that:
   1. no User Account is used by more than one Authorised User; and
   2. such Authorised Users are notified of this Agreement and any applicable Third Party Terms.
3. You are solely responsible for managing all permissions and roles for your Authorised Users within your Customer Account, including but not limited to any access controls or spending guard-rails made available through the Services.
4. You represent and warrant that for any Customer-Connected Tool you integrate with the Services, you have all necessary rights, licenses, and permissions to:
   1. access and use such Customer-Connected Tool, and
   2. provide us with any and all data from such Customer-Connected Tool for the purpose of providing the Services.
5. You will not, and will not permit any Authorised User to violate:
   1. our Acceptable Use Policy;
   2. the Third Party Terms of any Third Party Service accessed by you or your Authorised Users through the Services; or
   3. any law, regulation or regulatory guidance applicable to your use of the Services.
6. You will not:
   1. copy, modify, or create a derivative work of the Services; or
   2. reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law).

4. Subscriptions, Credits and Fees

1. A paid Subscription is required for access to the Services. The Services, applicable Fees, Subscription Plan (where your Order Form specifies one), Subscription Period and billing frequency are as set out in your Order Form.
2. Fees are invoiced by reference to Billing Months, in advance, unless your Order Form provides otherwise. Where your Order Form provides for invoicing otherwise than monthly, the amount of each invoice is the aggregate of the Fees for the Billing Months in the period to which it relates.
3. Your Subscription gives you an allotment of Credits for each Billing Month of the Term, determined by your Subscription Plan or as otherwise set out in your Order Form. Each allotment is made available at the start of the Billing Month to which it relates, or on the Effective Date in the case of the first Billing Month. Unused Credits are carried over from Billing Month to Billing Month, and across successive Subscription Periods, without limit save as provided in Clause 4(j), for so long as this Agreement remains in force, and are forfeited on the expiry or termination of this Agreement.
4. The Fees and the Credit allotment for a Billing Month are calculated on a daily basis by reference to the number of days in the calendar month for which each applies. They are accordingly pro-rated where a Billing Month is shorter than that calendar month, and where a change to the Fees or to the Credit allotment takes effect part-way through a Billing Month.
5. If your Credit balance is insufficient for your intended use of the Services, you may purchase additional Credits at our price for Credits as displayed in the Management Account at the time of purchase. Additional Credits are payable in advance. Additional Credits purchased in a Billing Month are not pro-rated, and are added to your Credit balance on purchase.
6. The number of Credits consumed by an operation performed through the Services is determined by us, by reference to the nature of the operation and the cost to us of the inference and other resources it consumes. We may change the basis on which Credits are consumed from time to time, acting reasonably, and our determination of the Credits consumed by an operation is conclusive save in the case of manifest error. Our measurement tools will be used to determine your usage of the Services and the Credits consumed by it.
7. All amounts and Fees stated or referred to in this Agreement:
   1. shall be payable in the currency stated on the invoice;
   2. are non-cancellable and non-refundable;
   3. are exclusive of value added tax, which will be added to our invoice(s) at the appropriate rate;
   4. are not refundable on the expiry or termination of this Agreement for any reason, save for any refund required by the Data Processing Addendum; and
   5. remain payable where they fell due before the effective date of termination.
8. Without prejudice to any other right or remedy, if you fail to pay any amount when due, interest will accrue on the overdue amount at the rate and on the basis set out in the Late Payment of Commercial Debts (Interest) Act 1998.
9. Either party may at any time propose a change to the Fees or to your entitlements under your Order Form. No such change takes effect unless it is agreed in writing and signed by an authorised representative of each party.
10. Where your Credit balance exceeds the Credit Cap, as it stands from time to time, at all times throughout a continuous period equal to the greater of twelve months or twice the length of your Subscription Period, we may, on not less than 30 days’ written notice, cancel so much of that balance as exceeds the Credit Cap, or suspend or reduce the allotment of Credits under Clause 4(c) until that balance falls below the Credit Cap. The Fees remain payable in full during any such suspension or reduction, no refund, credit or other allowance arises in respect of Credits cancelled or not allotted, and Credits not allotted during a suspension or reduction do not accrue and are not allotted subsequently.
11. Clauses 4(a) to (j), other than Clause 4(f), do not apply where your access to the Services is governed by a separate written agreement with us (such as a partner agreement) or where you access the Services through an authorised partner or reseller of Rightbrain. In those cases the commercial terms of your access — including any fees, Credits and usage — are as set out in that agreement or as agreed between you and that partner, and apply in place of those Clauses. Clause 4(f) applies in every case.

5. Support

1. Support is included in your Subscription. We will use commercially reasonable endeavours to provide Support during Business Hours, through the channels we make available for that purpose from time to time.
2. Support consists only of:
   1. responding to questions from your Authorised Users about the operation and configuration of the Services; and
   2. receiving reports of Defects, investigating those reports, and correcting the Defect or providing a workaround for it.
3. Support relates to the Services only. We will use commercially reasonable endeavours to respond to requests for Support and to investigate reported Defects during Business Hours. Where we identify a Defect, we will use commercially reasonable endeavours to correct it or to provide a reasonable workaround. What constitutes commercially reasonable endeavours for the purposes of this Clause 5(c), and the priority to be given to a Defect by reference to the severity of its impact on your use of the Services, are as we reasonably assess them. We intend to keep you informed of progress, but are not obliged to do so. We do not commit to any specific response or resolution timescale, and you acknowledge that not all Defects can be fully corrected. No service credit, refund, price reduction or other remedy arises in respect of Support.
4. Support does not include, and we have no obligation under this Clause 5 in respect of, any of the following:
   1. anything relating to a particular Agent, including its scoping, specification, building, configuration, integration, testing, monitoring, debugging, correction, optimisation or the evaluation of models for it, which we provide only under Clauses 7 to 10 and only where your Order Form provides for the relevant additional service;
   2. the output of any Agent or Third Party Service, including its accuracy, quality, completeness or suitability;
   3. any Customer-Connected Tool, any Third Party Service, or your systems, network, devices or operating environment;
   4. any change to, withdrawal or deprecation of a Third Party Service or of any model made available through one;
   5. training, enablement, onboarding, consultancy, data migration, data preparation or integration work;
   6. any matter arising from your use of the Services otherwise than in accordance with this Agreement or our then-current documentation, or from anything built, configured or modified by you or an Authorised User;
   7. recovery or restoration of Customer Data, save to the extent required by the Data Processing Addendum; or
   8. any matter in respect of which a separate fee has been agreed.
5. Information provided to you as part of Support is subject to Clause 16(f).
6. We may change the channels through which, the hours during which, and the languages in which we provide Support, and the scope of Support within the limits of Clause 5(b), from time to time.

6. Additional Services

1. In addition to your Subscription, we offer the following additional services:
   1. Agent Delivery, being the scoping, building and delivery of Agents for you, on the terms of Clauses 7 to 9; and
   2. Agent Management, being the ongoing monitoring, correction and model evaluation of Delivered Agents, on the terms of Clause 10.
2. Each additional service is optional and is provided only where your Order Form provides for it. Clauses 7 to 9 apply only where your Order Form provides that we will scope, build and deliver Agents for you. Clause 10 applies only where your Order Form provides that we will provide Agent Management. Where your Order Form does not so provide, we are under no obligation to provide that additional service and the Clauses relating to it do not apply to you.
3. The Fees for each additional service, and any limit on its extent, are as set out in your Order Form. Except where your Order Form provides otherwise, the Fees for Agent Delivery cover the scoping, building and delivery of Agents up to the number of In-Flight Slots stated in your Order Form, and do not cover anything done in respect of an Agent after its Acceptance.
4. Agent Delivery, Agent Management and Support are distinct, and each is provided only on the terms of the Clause under which it is provided. In particular:
   1. Agent Delivery ends, in respect of each Agent, on that Agent’s Acceptance;
   2. the ongoing monitoring, investigation, correction and model evaluation of a Delivered Agent after its Acceptance is Agent Management, is provided only under Clause 10, and is not part of Agent Delivery or of Support; and
   3. Support is provided in respect of the Services and not in respect of any particular Agent, as set out in Clause 5(d)(i).
5. Agent Management may be provided in respect of a Delivered Agent whether or not we are then providing Agent Delivery to you, and Agent Delivery may be provided whether or not you take Agent Management.
6. Neither additional service is available in respect of a Customer-Built Agent, except where your Order Form expressly provides otherwise.
7. For the purposes of Clauses 7 to 10, the Agent is the unit by which an additional service is scoped, counted and priced, and whether a given piece of automation constitutes one Agent or more than one is determined by us acting reasonably.

7. Agent Delivery

1. Your Order Form states the number of In-Flight Slots we will maintain for you. An Agent occupies an In-Flight Slot from the submission of a scoping request in accordance with Clause 7(e) until that Agent is Accepted or its Statement of Work is terminated by written agreement of the parties, at which point the In-Flight Slot becomes available.
2. Where an In-Flight Slot is available, we will commence scoping the next Agent under this Clause 7 within ten Business Days of you identifying that Agent in writing. We are under no obligation to commence scoping where you have not identified an Agent, and no In-Flight Slot is treated as occupied during any such period.
3. We are under no obligation to have more Agents in build at any one time than the number of In-Flight Slots stated in your Order Form. That number may be increased by written variation to your Order Form, which may include a corresponding increase to the Fees.
4. You may yourself build Agents using the Services at any time. A Customer-Built Agent does not occupy an In-Flight Slot, and Clauses 7 to 10 do not apply to it except as Clause 6(f) provides. Clause 13(a) governs Intellectual Property Rights in Customer-Built Agents.
5. You may request an Agent by submitting a written request to us describing the proposed Agent and its intended use case.
6. We will assess the feasibility of each proposed Agent. We may, acting reasonably, decline a proposed Agent where it is technically infeasible, contrary to the Acceptable Use Policy or applicable law, otherwise unsuitable for automation, or where it requires an integration with a system that we do not support and would require disproportionate effort to support. Where we decline a proposed Agent, Clause 7(q) applies.
7. Every Agent is scoped, and its Statement of Work agreed, before build commences. Scoping proceeds through feasibility and, where appropriate, a demo, to a Statement of Work, which must be signed by authorised representatives of each party.
8. Each Statement of Work must include, at a minimum:
   1. the requirements and data inputs to be provided by you, including format, quality standards and timing of delivery;
   2. an indicative delivery timeline agreed at scoping, identifying any dependencies of yours that must be met before we are required to proceed;
   3. the acceptance criteria by which the completed Agent will be assessed before it goes live;
   4. the destination systems to which outputs will be delivered and the Customer-Connected Tools required; and
   5. the identification required by Clause 2(g) of the Data Processing Addendum.
9. Timelines in a Statement of Work are good-faith estimates agreed at scoping. We will use reasonable endeavours to deliver each Agent within its indicative timeline and will keep you informed of progress and of any delay and its cause. Timelines are not of the essence.
10. An Agent goes live only on its Acceptance in accordance with Clause 9.
11. Any change to the scope, inputs, outputs, integrations or acceptance criteria of an Agent after its Statement of Work has been signed requires a written variation to that Statement of Work signed by each party. We may treat any requested change that materially alters the nature or extent of the Agent as a separate Agent, in which case it occupies an In-Flight Slot under Clause 7(a).
12. You must deliver each item identified as a dependency of yours in a Statement of Work by the date specified in it, in the format and to the quality standard specified. Our obligation to commence or continue each build phase is conditional on timely receipt of all items identified as a dependency for that phase.
13. We build and configure integrations based solely on the technical information you provide in the relevant Statement of Work. You bear the risk of any failure, rework or additional cost arising from inaccuracies or omissions in that information, including characteristics of your operating environment that were not disclosed.
14. You are responsible for completing, within your own tenant, any authorisation required to permit an Agent to connect to a Customer-Connected Tool, including executing OAuth consent and any whitelisting. You must not provide us with live production credentials for any Customer-Connected Tool.
15. If you fail to deliver any dependency by the specified date, each milestone for which that item is a dependency is extended by the period of the delay, calculated from the date the item was due to the date it is actually delivered to us in the required format and quality. We are not in breach of any delivery obligation under this Clause 7 or any Statement of Work during any period of extension attributable to your delay.
16. If any dependency remains undelivered for more than twenty Business Days beyond its required date, we may, on written notice to you, suspend build activity on the affected Agent until delivery is made. An Agent suspended under this Clause 7(p) continues to occupy an In-Flight Slot under Clause 7(a).
17. Where we determine under Clause 7(f) that a proposed Agent is unsuitable, or where an Agent in build proves unsuitable, we will notify you in writing, giving our reasons.
18. Following a notice under Clause 7(q), we will work with you in good faith to identify a suitable alternative Agent. Where an alternative is agreed and its Statement of Work signed, the alternative replaces the unsuitable Agent, which ceases to occupy an In-Flight Slot under Clause 7(a). Nothing in this Clause 7(r) requires us to build an Agent that we have determined to be unsuitable, technically infeasible, contrary to the Acceptable Use Policy, or contrary to applicable law.

8. Statements of Work

1. A Statement of Work takes effect only when it has been signed by an authorised representative of each party, and on taking effect forms part of this Agreement.
2. Each Statement of Work is made pursuant to Clause 7 and is subject to and governed by this Agreement in its entirety. In the event of any conflict between a Statement of Work and any other document comprising this Agreement, that other document prevails. A Statement of Work does not amend the Order Form, these Terms, the Acceptable Use Policy or the Data Processing Addendum, whatever it may purport to do.
3. A Statement of Work must be made on the form prescribed by us. We may change that form from time to time, and the form applicable to a Statement of Work is the form we make available at the time that Statement of Work is issued for signature. A change to the form does not affect any Statement of Work already signed.
4. Each Statement of Work relates to a single Agent.

9. Acceptance and Handover

1. On completion of the build of an Agent, we will deliver the Handover Artefact to you. The Agent will be assessed against the acceptance criteria set out in the applicable Statement of Work.
2. You must notify us in writing of any failure to meet those acceptance criteria within ten Business Days of us delivering the Handover Artefact, specifying the respects in which the criteria are said not to have been met.
3. If you do not give notice within that period, or you confirm acceptance of the Agent in writing by a person authorised to sign Statements of Work on your behalf, the Agent is Accepted.
4. Where you give notice under Clause 9(b) and we agree that the acceptance criteria have not been met, we will remedy the failure and re-submit the Agent for acceptance, and Clauses 9(a) to (c) apply again to the re-submitted Agent. An Agent that has failed to meet the acceptance criteria continues to occupy its In-Flight Slot.
5. Where you give notice under Clause 9(b) and we consider that the acceptance criteria have been met, the dispute will be escalated to a senior representative of each party, who will meet within five Business Days of escalation and seek to resolve it in good faith. If the dispute is not resolved within ten Business Days of escalation, either party may pursue such remedies as are available to it, and Clause 17(a) applies to any resulting claim.
6. We will complete the handover of each Agent by delivering the Handover Artefact and providing such assistance as is reasonably required during that Agent’s transition into operation. Our obligations in respect of an Agent under Clauses 7 to 9 are discharged on that Agent’s Acceptance and completion of handover.
7. You are responsible for operating each Delivered Agent in accordance with its Handover Artefact, and, except where you take Agent Management in respect of that Agent, for monitoring its operation. We accept no liability for any failure arising from use of an Agent otherwise than as described in its Handover Artefact.
8. We will use reasonable endeavours to provide enablement and training to your Authorised Users, using the Agents delivered under Clause 7, with the objective of enabling you to build and operate production Agents yourself. No minimum number, duration or frequency of sessions is committed, and the scheduling and format of enablement is a matter for the parties to agree from time to time acting reasonably. Failure to provide any particular volume of enablement is not a breach of this Agreement.

10. Agent Management

1. This Clause 10 applies only where your Order Form provides that we will provide Agent Management, and then only in respect of Managed Agents.
2. Each Delivered Agent identified as a Managed Agent in your Order Form, in its Handover Artefact, or in a subsequent written agreement signed by each party, is a Managed Agent from the later of its Acceptance and the date so identified, until Agent Management ceases in respect of it under Clause 10(h) or (i). An Agent that is not a Delivered Agent is not a Managed Agent, except where your Order Form expressly provides otherwise.
3. Unless otherwise stated in the Order Form, Agent Management consists only of:
   1. monitoring the operation of each Managed Agent, using the observability capabilities of the Services, for errors, failures and anomalous behaviour;
   2. investigating errors and failures in the operation of a Managed Agent that we detect or that you report to us, and correcting them or providing a workaround, so that the Managed Agent continues to operate substantially in accordance with its Handover Artefact;
   3. evaluating, from time to time, models newly made available to us through a Third Party Service against the use case of a Managed Agent, and reporting to you where we consider that a change of model would materially improve that Agent’s performance or reduce its cost of operation; and
   4. implementing a change of model, or another adjustment to the configuration of a Managed Agent, that we agree with you in writing, provided that the change does not alter the scope, inputs, outputs, integrations or acceptance criteria of that Agent.
4. We will provide Agent Management with reasonable skill and care, and will use commercially reasonable endeavours to act promptly on any error, failure or anomaly we detect or that you report to us. What constitutes commercially reasonable endeavours for the purposes of this Clause 10(d), and the priority and sequence in which we address any error, failure or anomaly, are as we reasonably assess them. Further to that, and without limiting Clause 16 or the exclusions in Clause 10(e):
   1. monitoring under Clause 10(c)(i) is not continuous and is not a guarantee of detection, and our failure to detect an error, failure or anomaly is not of itself a breach of this Agreement;
   2. we will use commercially reasonable endeavours to investigate errors and failures we detect or that you report, and to correct them or provide a reasonable workaround. We intend to keep you informed of progress, but are not obliged to do so. We do not commit to specific detection, acknowledgement, response or resolution timescales, and you acknowledge that not every error or failure can be fully corrected;
   3. the availability, uptime, throughput, latency, accuracy and output quality of a Managed Agent depend on the underlying models, your configuration and instructions, your data, and third-party services outside our control. We therefore give no warranty as to any of them, and none is to be implied from this Clause 10. Agent Management is a monitoring and management service and does not alter the inherent performance characteristics of a Managed Agent; and
   4. Agent Management is not subject to service credits, and no refund or price reduction arises in respect of it. Our liability in connection with Agent Management is as set out in Clause 16.
5. Agent Management does not include, and we have no obligation under this Clause 10 in respect of, any of the following:
   1. any change to the scope, inputs, outputs, integrations or acceptance criteria of a Managed Agent, which requires a variation under Clause 7(k) or, where we so determine, a new Agent scoped under Clause 7;
   2. the scoping or building of any new Agent;
   3. anything in respect of an Agent that is not a Managed Agent, including a Customer-Built Agent and a Delivered Agent that has not been identified as a Managed Agent;
   4. any Customer-Connected Tool, or any error or failure arising from one, from your systems, network, devices or operating environment, or from any act or omission of a third party;
   5. any error or failure arising from your operation of a Managed Agent otherwise than in accordance with its Handover Artefact, from the content, format, volume or quality of Customer Data, or from a change made to a Managed Agent by you or an Authorised User;
   6. the adoption of any model, or the continued availability of any model, it being acknowledged that Clause 2(c) applies to Managed Agents; and
   7. the output of any Managed Agent, including its accuracy, quality, completeness or suitability, in respect of which Clause 16(a)(i) continues to apply.
6. You will:
   1. notify us without undue delay of any error, failure or anomalous behaviour in a Managed Agent of which you become aware;
   2. maintain in force each authorisation, consent and integration on which a Managed Agent depends, and notify us before making any change to a Customer-Connected Tool that is likely to affect a Managed Agent; and
   3. not modify a Managed Agent, or permit an Authorised User to do so, without first notifying us in writing.
7. Inference and other processing performed by or for a Managed Agent consumes Credits in the ordinary way, including where it is performed in the course of monitoring under Clause 10(c)(i) or evaluation under Clause 10(c)(iii). Except where your Order Form provides otherwise, we will not perform an evaluation under Clause 10(c)(iii) that would consume Credits to a value exceeding that stated in your Order Form for that purpose in any Billing Month without your prior written agreement.
8. Where you modify a Managed Agent in breach of Clause 10(f)(iii), or where a Managed Agent is modified such that it no longer operates substantially in accordance with its Handover Artefact, we may on written notice to you cease to provide Agent Management in respect of that Agent, and it ceases to be a Managed Agent on the date stated in that notice. No refund or credit arises in respect of that cessation.
9. Unless otherwise set out in the Order Form, either party may terminate Agent Management in whole, or in respect of one or more Managed Agents, with effect from the end of any Billing Month by giving the other party not less than 30 days’ written notice. Termination of Agent Management does not terminate this Agreement, your Subscription, or any obligation to pay Fees in respect of a Billing Month that has begun. On cessation of Agent Management in respect of an Agent, that Agent continues to operate but we cease to monitor it, and Clause 9(g) applies to it.
10. Nothing in this Clause 10 obliges us to provide Agent Management in respect of more Managed Agents than the number stated in your Order Form, or in respect of any Agent after the expiry or termination of this Agreement.

11. Term and Termination

1. The term of this Agreement (“Term”) begins on the Effective Date and continues for the first Subscription Period set out in your Order Form. The Agreement will then automatically renew for successive Subscription Periods, each of the same length as the first, unless either party gives notice of non-renewal in accordance with Clause 11(b) or with your Order Form, or the Agreement is otherwise terminated as provided in this Agreement.
2. Either party may terminate this Agreement with effect from the end of any Subscription Period by giving the other party not less than 30 days’ written notice. Notice under this Clause 11(b) is a notice of non-renewal for the purposes of Clause 11(a), and this Clause operates whatever the length of the Subscription Period. Where the notice period would expire after the end of the then-current Subscription Period, this Agreement continues, and the Fees remain payable, until the end of the Subscription Period in which the notice period expires. Termination under this Clause 11(b) does not entitle you to any refund of Fees and does not relieve you of Fees payable in respect of the Subscription Period in which termination takes effect.
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:
   1. 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 15 days after being notified in writing to make such payment;
   2. the other party commits a material breach of any other term of this Agreement, including the Acceptable Use Policy; or
   3. the other party ceases its business operations, suspends or threatens to suspend its payments, appoints an administrator, or becomes subject to insolvency proceedings.
4. We may terminate this Agreement in whole or part on immediate written notice if we reasonably believe that continued provision of the Services to you would violate applicable law.
5. We may suspend your Customer Account and/or your access to the Services (in whole or in part) with immediate effect on written notice where we reasonably suspect that you, an Authorised User, or any person using your Customer Account has breached the Acceptable Use Policy or is using the Services unlawfully or in a manner that risks harm to the Services, us, or any other person. We will restore your access promptly once we are reasonably satisfied that the circumstances giving rise to the suspension have been resolved. Suspension under this Clause 11(e) does not entitle you to any refund of, or relief from, Fees.
6. We may throttle or suspend any Agent exhibiting extreme or anomalous usage in order to protect the integrity of the Services and the underlying infrastructure. This right is in addition to, and does not limit, our rights under Clause 11(e). We will notify you promptly of any throttling or suspension under this Clause 11(f) and will restore normal operation as soon as reasonably practicable.
7. We will not discontinue the Services, in whole or in part, or terminate this Agreement, otherwise than by notice under Clause 11(b). This Clause 11(g) does not affect:
   1. our right to terminate under Clause 11(c) or Clause 11(d);
   2. our right to suspend under Clause 11(e), or to discontinue or suspend the Services under Clause 17(b), where this is necessary to comply with applicable law;
   3. any commercially reasonable change to the Services made under Clause 17(d);
   4. our rights, or either party’s rights, under the Data Processing Addendum;
   5. our right to throttle or suspend an Agent under Clause 11(f);
   6. our right to cease to make a Third Party Service or model available under Clause 2(c);
   7. our right to cease to provide Agent Management under Clause 10(h) or Clause 10(i);
   8. our determination of, or any change to, the basis on which Credits are consumed under Clause 4(f), and any consequent reduction in the use of the Services available for a given number of Credits; or
   9. the non-fulfilment of requests where your Credit balance is exhausted.
8. On the giving of notice of termination of this Agreement by either party, we are under no obligation to commence scoping any further Agent under Clause 7(b), and any Agent that has not been Accepted by the date of termination is not delivered. No refund, credit or other allowance arises in respect of any such Agent. Where the notice was given by us under Clause 11(b), you may by written notice bring the termination date forward to the end of any earlier Subscription Period.
9. On expiry or termination of this Agreement for any reason, your right to access and use the Services ends, each Agent ceases to operate, and the licence granted to you under Clause 13(c)(i) terminates. This Clause 11(i) does not affect your ownership of any Agent Configuration, the licence granted to you under Clause 13(c)(ii), or your rights under Clause 13(g).
10. Clauses 11(h), 11(i), 12, 13, 14, 15, 16, 17 and 18 survive the expiry or termination of this Agreement for any reason.

12. Data Protection

1. We will process any personal data contained in Customer Data in accordance with the Data Processing Addendum.
2. Where a Managed Agent is materially changed, including by a change of model implemented under Clause 10(c)(iv), you must review and if necessary update the identification recorded for that Agent, and notify us of any change in accordance with Clause 2(g) of the Data Processing Addendum.

13. Intellectual Property

1. You own all Intellectual Property Rights in the following, and no licence from us is required for you to use a Customer-Built Agent beyond your right to access and use the Services:
   1. the Agent Configuration of each Agent in your Customer Account, whether that Agent is a Customer-Built Agent or a Delivered Agent;
   2. the Customer Data and the outputs generated by any Agent in the course of providing the Services to you; and
   3. the business logic, instructions, documentation, sample data and schemas that you provide to us for the purpose of scoping, building, testing or managing an Agent.
2. To the extent that any Intellectual Property Rights in the Agent Configuration of a Delivered Agent would otherwise vest in us, we assign them to you, including by way of present assignment of future rights, with effect from that Agent’s Acceptance.
3. Clauses 13(a) and 13(b) do not extend to the Services, to any base template or other material of ours incorporated into an Agent, to any Third Party Service or model, or to any Handover Artefact, each of which is governed by Clause 13(h). We grant you:
   1. a non-exclusive, non-transferable licence, during the Term, to use each base template and other material of ours incorporated into an Agent, as part of that Agent and for no other purpose; and
   2. a perpetual, non-exclusive, royalty-free licence to use each Handover Artefact for your own internal business purposes in connection with the Agent to which it relates.
4. You grant us a non-exclusive, worldwide, royalty-free licence to host, store, copy, operate, support, maintain, monitor and modify the Agent Configuration of each Agent in your Customer Account, for so long as we host or support that Agent, to the extent necessary to provide the Services, Agent Delivery and Agent Management to you. This licence includes the right to sub-license to our sub-contractors and to the providers of Third Party Services, in each case to the extent necessary for those purposes.
5. You grant us a non-exclusive, worldwide, royalty-free licence to use the materials described in Clause 13(a)(iii), including the right to sub-license to our sub-contractors and to the providers of Third Party Services to the extent necessary, solely for the purpose of scoping, building, testing, delivering and managing an Agent for you. We will return or delete those materials on your written request, and in any event within 90 days of the later of the Acceptance of the Agent for which they were provided and the expiry or termination of this Agreement. Clause 7(n) applies to credentials, and the Data Processing Addendum applies to any Personal Data contained in those materials.
6. With respect to the Customer Data:
   1. you retain any and all Intellectual Property Rights arising in relation to the Customer Data; and
   2. you hereby grant a royalty-free, worldwide, non-exclusive licence for us (and each of our direct and indirect sub-contractors) to use, copy and otherwise process Customer Data, but only to the extent necessary to provide the Services to you or as required by applicable law or a binding order of a court, regulator or other authority of competent jurisdiction.
7. At any time during the Term, and for 30 days after its expiry or termination, we will on your written request export to you the Agent Configuration of each Delivered Agent, in the portable format the Services provide for that purpose, and provide such assistance as is reasonable in connection with your transition away from the Services. Our obligations under this Clause 13(g) are not conditional on the payment of any Fee outstanding at the date of the request, or on the ground on which this Agreement was terminated.
8. We and/or our licensors exclusively own all Intellectual Property Rights in the following, and, except as expressly stated in this Agreement, this Agreement grants you no Intellectual Property Rights in respect of the Services or any other material owned by us:
   1. the Services;
   2. each base template and other material of ours made available through the Services;
   3. all underlying source code, algorithms, user interfaces and documentation created by or for us, including each Handover Artefact; and
   4. the methods, tools, scaffolds, checklists, review standards and other materials that we use in performing the Services, Agent Delivery or Agent Management, whether or not they were developed or refined in the course of performing them for you.
9. Nothing in this Agreement restricts us from performing services of the same or a similar kind for any other person, including a person in the same sector as you, or from using the general knowledge, skill and experience acquired by our personnel in the course of performing the Services, Agent Delivery or Agent Management. This Clause 13(i) does not permit us to use or disclose your Confidential Information, or to reproduce, in performing services for any other person, any Agent Configuration of yours or any taxonomy, threshold, category, decision rule, formula or sequence of operations that is specific to and derived from your business.
10. You must not represent to any third party that you own, or have any sub-licensable rights in, the Services. We confirm that we have all the rights in relation to the Services that are necessary to grant all the rights purported to be granted under, and in accordance with, this Agreement. Each assignment and licence granted by us under this Clause 13 is granted to the extent only that any Intellectual Property Rights subsist in its subject matter, and we give no warranty that any Agent Configuration is original. Nothing in this Clause 13(j) limits Clause 15(b).

14. Confidentiality and Publicity

1. You consent to our use of your name and logo on our website and other promotional materials. You may withdraw such consent at any time by providing notice in writing to us of such withdrawal.
2. A recipient of Confidential Information disclosed pursuant to this agreement will use at least reasonable efforts to protect the discloser’s Confidential Information, and will use the discloser’s Confidential Information only to exercise its rights and pursue its obligations under this Agreement. The recipient may disclose Confidential Information only to those of its Representatives who need to know it and who are bound by obligations of confidentiality and purpose limitation substantially similar to those set out in this Agreement.
3. A party may disclose Confidential Information to third parties to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 14(c), it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
4. Nothing in this Clause 14 restricts our use of general knowledge, skill and experience in accordance with Clause 13(i), and nothing in Clause 13(i) permits us to use or disclose your Confidential Information.

15. Indemnification

1. You will defend, indemnify and hold harmless us, our officers, directors and employees against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (i) your use of the Services in breach of Clause 3 (Your Obligations), or (ii) any claim that a Customer-Connected Tool or any data provided to us from it infringes the intellectual property rights or other rights of a third party, provided that:
   1. you are given prompt notice of any such claim;
   2. we provide reasonable cooperation to you in the defence and settlement of such claim, at your expense; and
   3. you are given sole authority to defend or settle the claim.
2. We will defend you, and your officers, directors and employees against any claim that your use of the Services in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
   1. we are given prompt notice of any such claim;
   2. you do not make any admission, or otherwise attempt to compromise or settle the claim, and provide reasonable cooperation to us in the defence and settlement of such claim, at our expense; and
   3. we are given sole authority to defend or settle the claim.
3. We, our employees, agents and sub-contractors will not be liable to you pursuant to Clause 15(b) to the extent that the alleged infringement is based on:
   1. a modification of the Services by anyone other than us; or
   2. your use of the Services in a manner contrary to the instructions given to you by us; or
   3. your use of the Services after notice of the alleged or actual infringement from us or any appropriate authority;
   4. your breach of this Agreement;
   5. any Customer-Connected Tool; or
   6. any Customer-Built Agent, or any modification by you of a Delivered Agent.
4. The foregoing states your sole and exclusive rights and remedies, and our (including our employees’, agents’ and subcontractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

16. Limitation of Liability

1. Except as expressly and specifically provided in this Agreement:
   1. you assume sole responsibility for results obtained from the use of the Services by you, and for conclusions drawn from such use. We will have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction;
   2. 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;
   3. we are not responsible for any Customer-Connected Tool, and we expressly disclaim all liability for their performance, security, availability, or for any and all content, data, or information processed by them; and
   4. the Services are provided to you on an “as is” basis.
2. We warrant that we will perform Agent Delivery and Agent Management with reasonable skill and care. This warranty amends Clause 16(a) to the extent, and only to the extent, that Clause 16(a) would otherwise exclude it. The Services themselves continue to be provided on an “as is” basis, the warranty in this Clause 16(b) does not extend to the output of any Agent, and this Clause 16(b) neither enlarges the obligations set out in Clause 5 or Clause 10 nor limits the exclusions and qualifications set out in Clauses 5(c), 5(d), 10(d) and 10(e).
3. Where a Statement of Work provides for an Agent to send communications or take actions without human review, you accept sole responsibility for those communications and actions and for any consequences arising from them. Nothing in this Clause 16(c) relieves you of your obligation under section 2 of the Acceptable Use Policy to subject all output to human review where the use could have legal or significant effects on individuals, and you must not request, and we will not build or manage, an Agent that operates without human review in any such case.
4. Nothing in this Agreement shall exclude any liability that cannot be excluded as a matter of the law governing this Agreement.
5. Subject to Clauses 16(a) and 16(d):
   1. we will have no liability for any (a) indirect, consequential, special, incidental, or punitive damages, or any (b) lost revenues, profits, savings, or goodwill;
   2. each party’s total aggregate liability to the other in respect of all breaches of duty (whether in contract, tort or otherwise) shall not exceed the Fees paid or payable under this Agreement in the twelve months preceding the event giving rise to the liability; and
   3. the limit in Clause 16(e)(ii) does not apply to your obligation to pay Fees due under this Agreement.
6. You acknowledge that it is your sole responsibility to seek advice concerning your legal and compliance obligations with respect to your use of the Services. The information provided through the Services, including without limitation information provided as part of Support, Agent Delivery or Agent Management, is not intended, and accordingly shall not be relied upon, either as a substitute for professional advice or judgement, or to provide legal or other advice with respect to any particular circumstance.

17. Miscellaneous

1. This Agreement 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 the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
2. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war. We may, subject to Clause 11(g), discontinue or suspend the Services where this is necessary to comply with applicable law.
3. This Agreement sets out all terms agreed between the parties and terminates and supersedes any and all other agreements between the parties relating to its subject matter, including any prior versions of this Agreement. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly stated in this Agreement.
4. We may make commercially reasonable changes to the Services from time to time. Your Order Form may provide for when such a change takes effect as between you and us, and where it does, the terms of your Order Form apply.
5. We may amend these Terms from time to time by publishing an updated copy of these Terms on our website. Amendments necessary in order for us to comply with applicable law will be effective immediately. All other amendments will be effective 30 days after publication. We will make reasonable efforts to provide you with timely notice of such Amendments.
6. Notices to us will be effective if sent to legal@rightbrain.ai. Notices to you will be effective if sent to the email address provided by you.
7. We may subcontract obligations under the Agreement but will remain liable to you for any subcontracted obligations.
8. If any part of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
9. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
10. This Agreement does not create any agency, partnership, or joint venture between the parties.

18. Definitions and Interpretation

1. In these Terms, and throughout the Agreement unless otherwise defined, the following words have the following meanings:
   1. Acceptable Use Policy: our acceptable use policy as set out at https://rightbrain.ai/acceptable-use and updated from time to time.
   2. Acceptance: acceptance of an Agent in accordance with Clause 9, and Accepted is construed accordingly.
   3. Agent: an automated solution built on the Services and made available to you through the Services, comprising one or more inputs, one or more inference or processing operations, and one or more outputs together with the delivery of those outputs to a destination. An Agent may be built by us, by you, or by both of us.
   4. Agent Configuration: the configuration of an Agent as it exists within the Services, comprising its system and user prompt templates, output format schemas, model selection and configuration parameters, input processors, task composition and chaining, and the revision history of those items. Agent Configuration does not include the Services, any base template or other material of ours made available through the Services, any Third Party Service, any model, or any Handover Artefact.
   5. Agent Delivery: the additional service described in Clause 6(a)(i) and provided on the terms of Clauses 7 to 9.
   6. Agent Management: the additional service described in Clause 6(a)(ii) and provided on the terms of Clause 10.
   7. Agreement: these Terms, the Acceptable Use Policy, the Order Form (where applicable), the Data Processing Addendum, each Statement of Work signed by each party, and any other document incorporated into this Agreement by reference in any of the foregoing documents.
   8. Authentication Method: the service, password, software or hardware token, or other means through which Authorised Users are authenticated for the purpose of accessing the Services.
   9. Authorised User: an individual (who, by way of example only, may be one of your Representatives) who is permitted by you to use the Services.
   10. Billing Month: a calendar month, and where the Term begins or ends part-way through a calendar month, the part of that calendar month falling within the Term.
   11. Business Day: a day other than a Saturday, Sunday or public holiday in England.
   12. Business Hours: 09:00 to 17:30 UK time on a Business Day.
   13. Confidential Information: information disclosed by one party (or its Representatives) to the other pursuant to this Agreement, which is marked confidential or would ordinarily be considered confidential in the circumstances. Confidential Information does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations or becomes public through no fault of the recipient. Subject to the two preceding sentences, Confidential Information includes Customer Data, details of the Services, and the business affairs of the discloser, and your Confidential Information includes your business logic, thresholds, taxonomies, categories, decision rules and process design, however recorded and including where embodied in an Agent Configuration.
   14. Controller, Processor, Data Subject, Personal Data, Process and Processing: have the meanings given to them in the Data Processing Addendum.
   15. Credit Cap: twice the aggregate of the Credits allotted under Clause 4(c) in respect of the Billing Months falling within the then-current Subscription Period. In comparing your Credit balance with the Credit Cap, that balance is taken to exclude additional Credits purchased under Clause 4(e), and Credits consumed by you are treated as drawn first from Credits allotted under Clause 4(c).
   16. Credits: units of account redeemable for inference and other processing performed through the Services, consumed as provided in Clause 4(f).
   17. Customer Account: the single organisational account provisioned for you within the Services, being both the account through which you access and pay for the Services and administer access by User Accounts, and the environment within the Services in which you and your Authorised Users build, deploy, operate and monitor Agents and other AI tools.
   18. Customer-Built Agent: an Agent built by you using the Services, other than a Delivered Agent. A Delivered Agent that you subsequently modify remains a Delivered Agent.
   19. Customer-Connected Tool: any third-party service, application, or API endpoint that you choose to connect to the Services for the purposes of observation, monitoring, or management, which is not a service provided directly by us and for which you have control over the configuration.
   20. Customer Data: all data other than data relating to the management of User Accounts and the Customer Account that is submitted, stored, sent or received via the Services by you or your Authorised Users.
   21. Data Processing Addendum: the Rightbrain terms set out at https://rightbrain.ai/data-processing and updated from time to time, setting out our data processing and security obligations for the Services with respect to Personal Data relating to Authorised Users and any Personal Data contained in the Customer Data.
   22. Defect: a reproducible failure of the Services to operate substantially in accordance with our then-current documentation for them. A characteristic of a Third Party Service, of a model made available through one, of the output of any Agent, or of a Customer-Connected Tool is not a Defect.
   23. Delivered Agent: an Agent scoped, built and delivered by us under Clause 7 and Accepted under Clause 9.
   24. Effective Date: the date stated as such in the Order Form or, if no such date is stated, the date of the last signature on the Order Form; or, where you access the Services through an authorised partner or reseller without an Order Form, the earlier of the date on which you first accept these Terms and the date on which you first access the Services.
   25. Fees: the total fees payable for the Services, including Subscription fees, fees for any additional service provided under Clause 6, fees for additional Credits, and any applicable value added tax, as detailed in the Order Form.
   26. Handover Artefact: our standard operational document or digital record, provided to you on completion of an Agent’s build, evidencing that the Agent meets the acceptance criteria set out in the applicable Statement of Work and describing how the Agent is to be operated.
   27. In-Flight Slot: one of the concurrent delivery slots described in Clause 7(a).
   28. Intellectual Property Rights: all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights and any other intellectual property rights (registered or unregistered) throughout the world.
   29. Managed Agent: a Delivered Agent in respect of which we provide Agent Management, as determined under Clause 10(b).
   30. Management Account: the secure online portal provided by us, accessible via the Services, which enables you to manage the Services, view usage information and our current price for Credits, and update contact and payment details.
   31. Order: a transaction for the purchase of the Services by you, made by the mutual execution of an Order Form between you and us.
   32. Order Form: a written document, including any electronic document (such as one executed via an e-signature service), that is expressly identified as an order form, details the Services to be provided, the corresponding Fees, the Subscription Period, the invoicing and payment schedule, and any other specific terms negotiated between the parties, and is signed by an authorised representative of each party. No email, quotation, proposal, purchase order, Statement of Work or other document or communication is an Order Form unless it satisfies each of those requirements. An Order Form includes all of its schedules and annexes, and may amend these Terms in any respect, whether or not the matter amended is commercial in nature.
   33. Privacy Notice: our privacy notice as set out at https://rightbrain.ai/privacy-policy and updated from time to time.
   34. Representatives: with respect to a party, that party’s affiliates, employees, workers and professional advisers.
   35. Services: the Rightbrain platform for managing AI tools, which includes but is not limited to, features for building, deploying, observing, tuning, and governing AI models and tools, made available by us at the URL https://app.rightbrain.ai/ or as otherwise notified to you by us from time to time. Agent Delivery and Agent Management are not part of the Services, and are provided, where your Order Form so provides, as additional services under Clause 6.
   36. Statement of Work: a document in the form referred to in Clause 8(c), scoping an Agent under Clause 7 and signed by an authorised representative of each party.
   37. Subscription: your paid access to the Services as set out in the Order Form.
   38. Subscription Plan: the specific plan (e.g., Professional, Teams, or Enterprise) to which you have subscribed, which determines the features, number of seats, and monthly allotment of Credits available to you, as set out in your Order Form. Where your Order Form does not specify a Subscription Plan, your entitlement to features, seats and Credits is as set out in your Order Form.
   39. Subscription Period: each successive period for which your Subscription runs, of the length set out in your Order Form. The first Subscription Period begins on the Effective Date, and each subsequent Subscription Period begins immediately on the expiry of the one before it. A Subscription Period need not begin on the first day of a calendar month, and the invoicing of Fees and the allotment of Credits are by reference to Billing Months rather than to Subscription Periods. A Subscription Period expressed as a number of months runs from the day on which it begins to the day before the corresponding day of the later month, and where that later month has no corresponding day, to its last day.
   40. Support: the service described in Clause 5(b) and provided on the terms of Clause 5.
   41. Term: the Term of this Agreement as set out in Clause 11(a).
   42. Terms: these customer terms.
   43. Third Party Service: a large language model or other service provided by a third party (such as OpenAI) that we make available to you through the Services as part of a Rightbrain-hosted tool.
   44. Third Party Terms: the terms and policies, including without limitation any acceptable use policy, governing the use of a Third Party Service by its users and customers.
   45. Us: Rightbrain AI Ltd, registered in England with company number 14960427 and its registered office at The Grainger Suite, Dobson House, Regent Centre, Gosforth, Newcastle Upon Tyne, United Kingdom, NE3 3PF.
   46. User Account: an individual user account allowing an Authorised User to access Customer Data.
   47. You, or Customer: the organisation that enters into this Agreement — whether by executing an Order Form, by accepting these Terms online, or by accessing the Services through an authorised partner or reseller of Rightbrain — and on whose behalf a Customer Account is created in order to use the Services.
2. Morphological inflections of defined terms shall retain their defined meanings, mutatis mutandis.
3. A reference to writing or written includes faxes and email.
4. This Agreement, together with all Orders, constitutes the entire agreement between you and us.
5. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:
   1. the Data Processing Addendum;
   2. any executed Order Form, in its entirety;
   3. the Acceptable Use Policy;
   4. these Terms; and then
   5. each signed Statement of Work.