Terms of Service
Date:
16 July 2024
Account and Registration
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.
The organisation or individual wishing to use our Services can sign up to our Free Service online, or to our Paid Service by signing an Order Form. Both Services are governed by these Terms, and other documents incorporated by reference as set out in Clause 12 - Definitions and Interpretation.
If you are using 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.
Subject to the terms of this Agreement, we will provide the Services to you during the Term.
We will provide Support for the Paid Service as set out in the applicable Order Form.
Third Party Services
We may make Third Party Services available to you through the Services. You acknowledge that such Third Party Services are offered on Third Party Terms, and that this Agreement does not alter nor modify such Third Party Terms except as set out herein.
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, to the extent that the Third Party Service offers such functionality, agree contracts and configure the Third Party Service to ensure that:
Customer Data are not used to train, fine tune or otherwise develop Third Party Service models; and
Customer Data are not retained by Third Party Services for longer than is necessary to perform the processing operation requested by you.
Your Obligations
You undertake that:
you will not allow your Customer Account to be used by any other person;
you will take reasonable measures to secure the Authentication Method associated with your Customer Account; and
you will let us know immediately if you believe the security of your Customer Account has been compromised.
You will ensure that:
no User Account is used by more than one Authorised User; and
such Authorised Users are notified of this Agreement and any applicable Third Party Terms.
You will not, and will not permit any Authorised User to violate:
our Acceptable Use Policy;
the Third Party Terms of any Third Party Service accessed by you or your Authorised Users through the Services; or
any law, regulation or regulatory guidance applicable to your use of the Services.
You will not:
copy, modify, or create a derivative work of the Services; or
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).
Fees and Payment
This Clause 4 - Fees and Payment applies only to the use of the Paid Service.
You will pay the Fees to us in accordance with this Agreement.
We will measure your usage of the Services for the determination of the Fees and/or your compliance with any Usage Limits. In the event that you exceed the Usage Limits, an Overage Charge may apply.
If we have not received payment within 30 days after the due date:
we may suspend all or part of the Services to you, and will be under no obligation to provide any or all of the Services until full payment, including any interest, has been received; and
interest shall accrue on a daily basis at an annual rate equal to 4% above the then current base rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in this Agreement:
shall be payable in the currency stated on the invoice;
are, subject to Clause 10.3.2, non-cancellable and non-refundable;
are exclusive of value added tax, which will be added to our invoice(s) at the appropriate rate.
Term and Termination
The term of this Agreement (the “Term”) will begin on the Effective Date and continue until terminated or not renewed in accordance with the terms of this Agreement.
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:
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;
the other party commits a material breach of any other term of this Agreement and fails to remedy that breach for a period of no less than 30 days; or
the other party ceases its business operations, suspends or threatens to suspend its payments, appoints an administrator, or becomes subject to insolvency proceedings.
If you are using the Paid Service, we may terminate this Agreement in whole or part on written notice to you if we reasonably believe that continued provision of the Services to you would violate applicable law.
Data Protection
We will hold:
Personal Data relating to account management (including without limitation invoicing, provision of Support, and product feedback) of the Paid Service; and
Personal Data submitted to the Free Service;
as Controller, and will Process such data in accordance with our Privacy Notice.
If you are using the Free Service, you must ensure that Customer Data does not contain Personal Data.
If you are using the Paid Service, we will hold:
Personal Data relating to User Accounts; and
if applicable, any Personal Data contained in Customer Data;
as Processor, and will Process such Personal Data in accordance with the Data Processing Addendum.
Intellectual Property
You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this Agreement does not grant you any Intellectual Property Rights in respect of the Services.
We confirm that we have all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, this Agreement
The parties hereby agree that in relation to the Customer Data:
any and all Intellectual Property Rights arising in relation to the Customer Data are retained by you; and
you hereby grant a royalty-free, worldwide, sub-licensable, non-exclusive licence for us (and each of its direct and indirect sub-contractors) to use, copy and otherwise utilise Customer Data as required to provide and develop the Services, and to exercise or perform our rights, remedies and obligations under the Agreement.
Confidentiality and Publicity
Where you use the Paid Service, 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.
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 or confidentiality and purpose limitation substantially similar to those set out in this Agreement.
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 8.3, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
Indemnification
You will defend, indemnify and hold harmless Rightbrain, its 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 your use of the Services in breach of Clause 3 (Customer Obligations), provided that:
you are given prompt notice of any such claim;
we provide reasonable cooperation to you in the defence and settlement of such claim, at your expense; and
you are given sole authority to defend or settle the claim.
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:
we are given prompt notice of any such claim;
you do not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable cooperation to us in the defence and settlement of such claim, at our expense; and
we are given sole authority to defend or settle the claim.
We, our employees, agents and sub-contractors will not be be liable to you pursuant to Clause 9.2 to the extent that the alleged infringement is based on:
a modification of the Services by anyone other than us; or
your use of the Services in a manner contrary to the instructions given to you by us; or
your use of the Services after notice of the alleged or actual infringement from us or any appropriate authority; or
your breach of this Agreement.
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.
Limitation of Liability
Except as expressly and specifically provided in this Agreement:
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;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Services are provided to you on an "as is" basis.
Nothing in this Agreement shall exclude any liability that cannot be excluded as a matter of the law governing this Agreement.
Subject to Clauses 10.1 and 10.2:
we will have no liability for any (i) indirect, consequential, special, incidental, or punitive damages, or any (ii) lost revenues, profits, savings, or goodwill;
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.
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, 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.
Miscellaneous
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.
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, without liability to you, discontinue or suspend the Services where this is necessary to comply with applicable law.
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.
We may make commercially reasonable changes to the Services from time to time.
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.
Notices to us will be effective if sent to [email protected]. Notices to you will be effective if sent to the email address provided by you.
We may subcontract obligations under the Agreement but will remain liable to you for any subcontracted obligations.
If any part of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
This Agreement does not confer any benefits on any third party unless it expressly states that it does.
This Agreement does not create any agency, partnership, or joint venture between the parties
Definitions and Interpretation
In these Terms, and throughout the Agreement unless otherwise defined, the following words have the following meanings:
Agreement: these Terms, the Acceptable Use Policy, the Order Form (if applicable), the Data Processing Addendum (if applicable), and any other document incorporated into this Agreement by reference in any of the foregoing documents.
Acceptable Use Policy: our acceptable use policy as set out at https://rightbrain.ai/acceptable-use and updated from time to time.
Authentication Method: the service, password, software or hardware token, or other means through Authorised Users are authenticated for the purpose of accessing the Services.
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.
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.
Controller, Processor, Data Subject, Personal Data, Process and Processing: have the meanings given to them in the Data Processing Addendum.
Customer Data: all data other than data relating to User Accounts and Customer Account that is submitted, stored, sent or received via the Services by you or your Authorised Users.
Customer Account: the primary account through which you access the Services and through which you may, if applicable, administer User Accounts.
Data Processing Addendum: the Rightbrain terms set out at https://rightbrain.ai/data-processing, setting out our data processing and security obligations for the Paid Service with respect to Personal Data relating to Authorised Users and any Personal Data contained in the Customer Data.
Effective Date: the date:
set out in the Order Form for the Paid Service; or
upon which you sign up for the Free Service.
Fees: the fees for the Paid Service payable to us as set out in the Order Form, including any applicable value added tax, and any applicable Overage Charge.
Free Service: the free service provided by us to you
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.
Order Form: the order form for the Paid Service signed by you.
Overage Charge: the rate payable by you where you have exceeded the Usage Limits.
Paid Service: the subscription services provided by us to you under this Agreement via rightbrain.ai or any other website notified to you by us from time to time, along with any Support, as set out in the Order Form.
Privacy Notice: Rightbrain's privacy notice as set out at https://rightbrain.ai/privacy-policy and updated from time to time.
Representatives: with respect to a party, that party’s affiliates, employees, workers and professional advisers.
Services: the Free Service and/or the Paid Service.
Support: the support services as set out in the Order Form.
Term: has the meaning given in Clause 5 - Term and Termination.
Terms: these customer terms.
Third Party Service: a software-as-a-service product or other service provided by a third party that is made available to you through the Services. Where you control the API key to, or is otherwise capable of directly configuring a service, such service is not a Third Party Service.
Third Party Terms: the terms and policies, including without limitation any acceptable use policy, offered by governing the use of a Third Party Service by its users and customers.
Usage Limits: the data, user, query or other limits on your use of the Services:
as set out in the Order Form for the Paid Service;
as determined by us from time to time for the Free Service.
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.
User Account: an individual user account allowing an Authorised User to use the Services.
You: the organisation or individual who:
is identified in the Order Form for the Paid Service; or
signs up to use the Free Service.
Morphological inflections of defined terms shall retain their defined meanings, mutatis mutandis.
A reference to writing or written includes faxes and email.
In the event of any conflict between the different parts of this Agreement, the Data Processing Addendum (including any standard contractual clauses incorporated by reference) shal, if applicable,l take precedence, followed by:
the Order Form;
the Acceptable Use Policy; and then
these Terms.
Version: 1.1
Last updated: 16 July 2024
