Exenai Terms & Conditions
Last Updated: July 2023
This Agreement is agreed between Exenai Limited, a company incorporated in England, with the company number 14571809 and whose registered address is 85 Great Portland Street, London, W1W 7LT, United Kingdom (“Exenai”); and the entity that purchases the Services from Exenai pursuant to and as identified on the Order Form (the “Customer”).
This Agreement governs all purchases by the Customer from Exenai.
1. Definitions
1. 1 Capitalised terms used in this Agreement shall have the meanings set out below:
Affiliate means, with respect to either party, any legal entity that directly or indirectly controls, is controlled by or is under common control with such party, where “control” means (i) ownership of more than 50% of the equity of such party or entity or (ii) the power to direct or cause the direction of the management and policies of such party or entity.
Agreement means these Exenai Service Terms and Conditions, together with the Schedules to these terms, the Order Form, the Special Terms, the Statement of Work and any other documents to which reference may properly be made in order to ascertain the rights and obligations of the parties;
AUP means Exenai Acceptable Use Policy as amended from time to time;
Community Users means individuals who are not Customer Users but who are permitted by the Customer to access the Exenai Platform, such as Candidates or Clients. The scope of the use of the Exenai Platform granted to each Community User is defined by reference to the Products licensed by the Customer as set out in the Order Form;
Customer Users means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Exenai Platform. The scope of the use of the Exenai Platform granted to each Customer User is defined by reference to the Products licensed by the Customer as set out in the Order Form;
Confidential Information means any technical, business, marketing, sales, Affiliate, customer, licensor or other supplier, financial, pricing, employee or other information disclosed hereunder in any form, which is either (a) marked or identified as confidential at the time of disclosure or (b) of a nature generally understood to be confidential provided the disclosing party generally treats it as confidential;
Customer Data means data inputted by the Customer, Customer Users, Community Users or Exenai on the Customer's behalf for the purpose of using the Exenai Platform or facilitating the Customer’s use of the Exenai Platform and any Customer Material;
Customer Material means any proprietary products, materials, tools or methodologies of the Customer provided by the Customer to Exenai in order to enable Exenai to provide the Professional Services and/or any Deliverables (as applicable);
Deliverable means a defined deliverable to be supplied by Exenai to the Customer and/or developed by Exenai for the Customer as part of the Professional Services and as more particularly detailed in the Order Form and Statement of Work as applicable;
Documentation means the information in electronic form made available to the Customer by Exenai from time to time which sets out a description of the different Exenai products and services and the user instructions for the Services;
Effective Date means the date this Agreement is effective as set out in clause 2.5;
Fees means the fees payable by the Customer to Exenai in respect of the Services as set out in the Order Form and Statement of Work and clause 12 of this Agreement;
Exenai Platform means the cloud based software application and services managed and provided by Exenai to the Customer under this Agreement;
Exenai User Notice means the Exenai User Notice as amended from time to time;
Order Form means an 'Exenai Order Form', signed (whether by hand or by electronic means) by both parties, for the purchase by the Customer of the Services;
Privacy Policy means the Exenai Privacy Policy as amended from time to time;
Products means products and services as specified in the Order Form forming part of the Exenai Platform the scope of which are described in the Documentation;
Professional Services means the services as agreed in writing by the parties in an Order Form and Statement of Work to be provided by Exenai to the Customer;
Recognised Holidays means national holidays such as New Years’ Day, Chinese New Year, Easter Friday, Easter Monday, Thanksgiving, Christmas and Boxing Days, the exact dates of which are set out in the Exenai published holiday list available in the Exenai Help Centre;
Services means the Exenai Platform, the Support Services, the Professional Services and Deliverables and/or the Software, as applicable, given the context in which the term Services is used;
Software means the online software applications provided by Exenai as part of the Services.
Special Terms means any terms identified as such in the Order Form or in these Exenai Service Terms and Conditions;
Start Date is the date the Exenai Platform is made available by Exenai to the Customer as identified in the Order Form;
Statement of Work means a document referred to in clause 5.2 to be agreed and signed by both parties which sets out details of the Professional Services agreed to be provided by Exenai to the Customer and containing specific terms as have been agreed between the parties (if any);
Support Hours means the hours that the Exenai support team is available which is defined in Schedule 1;
Support Services means the support services described in Schedule 1;
Support Policy means the policy referred to in clause 4.5;
Term means the initial term specified in the Order Form and any renewal term (subject to the termination provisions in this Agreement) for the provision of the Exenai Platform as further defined in clause 13.2.1;
User means Customer Users, Community Users and any other individual who may be authorised by the Customer to access or use the Services and the Documentation in accordance with this Agreement;
User License means each user subscription purchased by the Customer (the number and type of which are set out in each applicable Order Form) which entitles Users to access and use the Exenai Platform in accordance with this Agreement;
Virus means any item, software, device or code which is intended by any person to, or which is likely to, or which may: impair or prevent the operation of any software or computer systems; cause loss of, or corruption or damage to any software or computer systems or data; prevent access to any software or computer system or data; or damage the reputation of Exenai.
1.2 The word "including" and similar shall not limit any preceding category.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular and a reference to one gender shall include a reference to the other genders.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2. Basis of Agreement
2.1 Subject to any variation under clause 2.2, any contract formed by Exenai and the Customer will be on the terms of this Agreement to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 Any variation to this Agreement and any representations about the Services shall have no effect unless expressly agreed in writing and signed by duly authorised signatories of Exenai and the Customer.
2.3 Receipt by the Customer of an Order Form completed by Exenai and incorporating these Exenai Service Terms and Conditions shall not constitute an offer but an invitation to treat.
2.4 Signature (whether by hand or electronically) of an Order Form by the Customer constitutes an offer by the Customer to purchase the Services specified in the Order Form on the terms and conditions contained in this Agreement.
2.5 No order placed by the Customer shall be deemed to be accepted by Exenai until Exenai has accepted such an offer by signing and dating the Order Form or, if sooner, Exenai has commenced provision of the Services to the Customer. This shall be the “Effective Date” of this Agreement.
2.6 In the event of any conflict between the documents forming this Agreement, they shall be interpreted in the following order of precedence:
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The terms contained in an Order Form;
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The Special Terms;
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The terms and conditions set out in the main body of these Exenai Service Terms and Conditions; and
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The Schedules to these Exenai Service Terms and Conditions
3. User Licenses
3.1 Subject to the Customer purchasing the User Licenses and paying the applicable Fees, Exenai grants to the Customer a non-exclusive, non-transferable right to use, and to permit the Customer Users and Community Users to use, the Exenai Platform for the Term on the terms of this Agreement and solely for the business purposes and benefit of the Customer.
3.2 The types of User License are defined by reference to the type of User licensed by the Customer as specified in the Order Form.
3.3 In relation to the Users, the Customer undertakes that:
3.3.1 the maximum number of Users that it authorises to access and use the Exenai Platform shall not exceed the number and type of User Licenses it has purchased from time to time;
3.3.2 it will not allow any User License to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Exenai Platform provided that a User License may not be reassigned more than four times in any calendar month; and
3.3.3 each User shall keep a secure password for his use of the Services and that each User shall keep his or her password confidential.
3.4 Prior to use of the Exenai Platform, all Users are required to acknowledge and accept the terms of the Exenai User Notice.
3.5 The Customer shall be responsible for any breach of the terms of this Agreement and/or the Exenai User Notice by any of its Affiliates, Users and any other person who accesses the Services using Customer access credentials or systems (whether permitted to do so by the Customer or not).
3.6 The Customer shall not (and shall ensure that its Users shall not) use the Exenai Platform in breach of the AUP. If the Exenai Platform is used with Customer credentials in a manner which infringes the AUP or this Agreement, or if the Customer otherwise infringes this Agreement, Exenai may suspend access to the Exenai Platform until the Customer has demonstrated that the relevant infringement has been remedied. The Customer's payment and other obligations shall continue to apply during any period of suspension pursuant to this clause.
3.7 The Customer shall promptly notify Exenai of any unauthorised access to or use of the Exenai Platform.
4. Exenai Platform and Support Services
4.1 Exenai shall, during the term of the Agreement, provide the Exenai Platform and make available the Documentation to the Customer on and subject to the terms of the Agreement.
4.2 Exenai may make operational changes to the Services without giving prior notice to the Customer and may control, direct and establish technical procedures for the use and supply of the Services provided that such operational changes do not detrimentally affect the performance of the Services.
4.3 Exenai offers Customers options to utilise or purchase (as applicable) different Products within the Exenai Platform. These Products and service options are specified in the Order Form and described in the Documentation. Additional terms and conditions may apply to certain Products and service options which will be included as Special Terms if applicable.
4.4 Exenai shall use commercially reasonable endeavours to provide the Exenai Platform with a minimum availability of 99.95% excluding:
4.4.1 scheduled downtime for maintenance of the hosting facilities by Exenai’ sub-contractors;
4.4.2 scheduled downtime for maintenance by Exenai of its data and web applications;
4.4.3 emergency downtime required to maintain the Exenai Platform carried out between the hours of 20.00 and 05:00 in the jurisdiction in which the data centre requiring maintenance is located;
4.4.4 agreed downtime in order to upgrade the Customer to a new version of the Software or to provide maintenance or Professional Services, for example, data cleansing, to the Customer;
4.4.5 downtime caused by the Customer, its Users or a force majeure event; and
4.4.6 downtime of the internet and other network service providers.
Scheduled downtime under clause 4.4.1 shall be no more than 4 hours in any one calendar month for each particular hosting facility and under clause 4.4.2 no more than 4 hours in any one calendar month and shall be undertaken outside core business hours (9am to 5pm) in the jurisdiction in which the data centre requiring scheduled maintenance is located. Exenai shall provide notice in advance of such downtime.
4.5 Exenai will provide the Customer with Exenai standard customer support services in accordance with the provisions set out in Schedule 1 and the Exenai Support Policy in effect at the time. Exenai may amend the Support Policy in its sole and absolute discretion from time to time.
5. Professional Services
5.1 Unless otherwise specified in the Order Form, the scope of Professional Services ordered by the Customer and the Fees payable for the Professional Services shall be as set out in the Order Form.
5.2 Where specified in the Order Form, before commencing some or all of the Professional Services, the parties shall agree a Statement of Work. The Statement of Work shall be prepared by Exenai for agreement with the Customer and will include the scope of the Professional Services covered by it and, as agreed by the parties, may include a project plan, details of any Customer dependencies, project management details, a change management process, an acceptance procedure and details of any Deliverables to be supplied by Exenai to the Customer. The Statement of Work must be agreed and signed by the parties prior to the commencement of the Professional Services or the supply of any Deliverables by Exenai to the Customer. Each agreed Statement of Work shall form part of this Agreement.
5.3 Exenai shall provide the Professional Services and supply the Deliverables in accordance with the terms of the Agreement including any applicable Statement of Work. Exenai shall use reasonable endeavours to provide the Professional Services and Deliverables (if any) by any estimated dates detailed in the Order Form or relevant Statement of Work. For the avoidance of doubt, unless specified otherwise, any dates will be estimates only.
6. Exenai Property
6.1 As between the parties, Exenai retains all right, title and interest, including without limitation all patent, copyright, trademark, trade secret, database rights and other intellectual property and proprietary rights, in and to (i) the Services (including the Software, in object code and source code form) and the Documentation, (ii) any Deliverables furnished by Exenai to the Customer as part of the Professional Services, and (iii) any and all improvements, modifications, translations and derivative works of any of the foregoing (collectively, “Exenai Property”).
6.2 The Customer does not acquire any right, title or interest in or to Exenai Property except as expressly set out in this Agreement.
6.3 Upon payment in full of all amounts due for the Professional Services, the Customer is granted a non-exclusive, non-transferable license, for the duration of the term of the Agreement, to use any Deliverables furnished by Exenai to Customer as part of the Professional Services solely with, and in connection with Customer’s internal business use.
6.4The Customer shall not:
6.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (and shall not exercise any legal right to carry out such actions without first requesting any information required for the purpose of creating interoperable software from Exenai);
6.4.2 access all or any part of the Services and/or Documentation in order to build a product or service which competes with the Services; or
6.4.3 use the Services and/or Documentation to provide services to third parties other than as may be expressly permitted in this Agreement; or
6.4.4 subject to clause 14.2, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise attempt to obtain, or assist third parties (excluding Users), access to the Services and/or Documentation other than as provided under clause 3.
6.5 Exenai shall defend the Customer, its officers, directors and employees against any claim that the Services and the Documentation infringes any United Kingdom, EU or USA patent effective as of the Effective Date, copyright, trade mark or database right, and shall indemnify the Customer for any amounts awarded against the Customer in judgement or settlement of such claims, provided that:
6.5.1 Exenai is given prompt notice of any such claim;
6.5.2 the Customer provides reasonable co-operation to Exenai in the defence and settlement of such claim, at Exenai’ expense; and
6.5.3 Exenai is given sole authority to defend or settle the claim.
6.6 In the defence or settlement of any claim, Exenai may procure the right for the Customer to continue using all or part of the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
6.7 In no event shall Exenai, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
6.7.1 a modification of the Services or Documentation by anyone other than Exenai; or
6.7.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Exenai; or
6.7.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Exenai or any appropriate authority.
6.8 Subject to clauses 12.2 and 12.3, the foregoing states the Customer's sole and exclusive rights and remedies, and Exenai' (including Exenai’ employees', agents', sub-contractors' and Affiliates’) entire obligations and liability, for infringement of any patent, copyright, trade mark or database right.
7. Customer Data and Data Processing
7.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data, including ensuring that it is permitted to provide the Customer Data to Exenai for processing as permitted by this Agreement. The Customer warrants to Exenai that where it supplies personal data (as defined in clause 7.6 below) to Exenai for processing pursuant to this Agreement, it has appropriate consents, including the consent to use location information, from the individuals concerned to enable Exenai to carry out the Services in accordance with the terms of the Agreement. The Customer grants Exenai, its Affiliates and sub-contractors a non-exclusive, non-transferable license to use the Customer Data in any manner necessary in connection with the provision of the Services. The Customer acknowledges and agrees that for the purposes of the performance and improvement of the Services, Exenai may collect and analyse anonymised Customer Data for application performance and service usage analysis.
7.2 The Customer shall defend, indemnify and hold harmless Exenai and its directors, employees, agents, sub-contractors and Affiliates 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 use of the Customer Data in accordance with the Agreement. This indemnity shall not be subject to the limits or exclusions of liability set out in the Agreement. Exenai shall ensure:
7.2.1 the Customer is given prompt notice of any such claim, (except that a delay in such notice shall not release Customer from its indemnification obligation except to the extent Customer is materially prejudiced by the delay;
7.2.2 Exenai provides reasonable cooperation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
7.2.3 the Customer is given authority to defend or settle the claim (provided that any settlement must be approved by Exenai (such approval will not be unreasonably withheld)).
7.3 Exenai shall, in providing the Services, comply with its Privacy Policy. The Customer acknowledges that the nature of the Services is such that Exenai must be permitted to modify the Privacy Policy from time to time. If Exenai modifies the Privacy Policy, Exenai shall notify the Customer through the Exenai Platform or by email.
7.4 In the remainder of this clause 8, the terms “controller”, “processor”, “data subject” and “personal data” will bear the meanings given to them in General Data Protection Regulation (“GDPR”) and the Data Protection Act 2018
7.5 To the extent that Exenai processes personal data about any living individual (Personal Data) in the course of providing the Services, it will do so only as a data processor acting on behalf of the Customer (as data controller) and in accordance with the requirements of its Privacy Policy and this Agreement.
7.6 Exenai shall:
7.6.1 only carry out processing of any Personal Data on the Customer's lawful instructions;
7.6.2 process the Personal Data only for the purpose of providing the Services; and not divulge the whole or any part of the Personal Data to any person, except to the extent necessary for the proper performance of this Agreement or otherwise in accordance with the Customer’s lawful instructions; and
7.6.3 implement appropriate Technical and Organisational Measures to protect Personal Data against unauthorised or unlawful processing and accidental loss or damage.
7.7 Exenai shall:
7.7.1 subject to clause 7.8 below, not subcontract any processing of the Personal Data without the prior written authorisation of the Customer;
7.7.2 ensure that access to the Personal Data is limited to those employees or authorised sub-contractors who need access to the Personal Data to meet Exenai’ obligations under this Agreement and that all employees and authorised sub-contractors are informed of the confidential nature of the Personal Data;
7.7.3 comply with its obligations under any applicable Data Protection Law;
7.7.4 promptly notify the Customer in writing of any notices in connection with the processing of any Personal Data, including subject access requests, and, at the Customer’s expense, provide such information and assistance as the Customer may reasonably require; and
7.7.5 promptly notify the Customer in writing if any Personal Data has been disclosed in non-compliance with this clause 8 and do all such acts and things as the Customer considers reasonably necessary in order to remedy or mitigate the effects of such disclosure.
7.8 The Customer acknowledges and authorises the storage of Personal Data on servers located at third party facilities provided by companies under contract to Exenai, which is defined in Schedule 2. For the purposes of the provision of the Services, the Customer authorises the processing of Personal Data by any Affiliate of Exenai and by selected sub-contractors under contract to Exenai.
7.9 The Customer acknowledges and agrees that the provisions of the Privacy Policy apply to any Personal Data which may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and Exenai' other obligations under this Agreement. The applicable provisions in the Privacy Policy depend on the services purchased by the Customer pursuant to the Order Form.
8. Exenai Warranties
8.1 Exenai warrants that:
8.1.1 the provision of the Exenai Platform and the Support Services will be performed with reasonable skill and care;
8.1.2 the Software will perform substantially as described in the Documentation provided that the Customer has complied with its obligations under clause 9.1.5; and
8.1.3 the Professional Services will be performed with reasonable skill and care and the Deliverables will perform in accordance with their specification as set out in the Order Form or Statement of Work as applicable for a period of 90 days from the Start Date or, where the Customer is already using the Exenai Platform, from the date of delivery of each Deliverable.
These warranties shall not apply to the extent that any non-conformance is caused by use of the Services contrary to Exenai’ instructions, or modification or alteration of the Services by any party other than Exenai or its duly authorised contractors or agents.
8.2 Exenai’s sole and exclusive liability:
8.2.1 if the Exenai Platform does not conform with the warranty in clause 8.1.1, is for Exenai to use all reasonable commercial endeavours to correct any such non-conformance promptly;
8.2.2 if the Support Services do not conform with the warranty in clause 8.1.1, is for Exenai to correct such non-conformity in accordance with the provisions of the Support Services Policy;
8.2.3 if the Software does not conform with the warranty in clause 8.1.2, and provided that the Customer has given written notice of such defect or fault (including information that may be necessary to assist Exenai in identifying and resolving such defect or fault), shall, in Exenai’s sole discretion, be to either repair or replace the Software or to provide the Customer with a work around which provides the performance as described in the Documentation; and
8.2.4 for any failure of the Professional Services to conform to the undertaking in clause 8.1.3 shall be for Exenai to correct or re-perform the non-conforming Professional Services.
The provisions in this clause 8.2 constitute the Customer's sole and exclusive remedy for any breach of the warranties set out in clause 8.1.
8.3 Exenai shall comply with all applicable laws and regulations with respect to its activities under this Agreement.
8.4 Except as expressly set out in this Agreement:
8.4.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Exenai shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Exenai by the Customer in connection with the Services, or any actions taken by Exenai at the Customer's direction;
8.4.2 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; and
8.4.3 the Services and the Documentation are provided to the Customer on an "as is" basis.
8.5 For the avoidance of doubt, Exenai:
8.5.1 does not warrant that the Customer's use of the Services will be uninterrupted or error-free or that the Services, Deliverables, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
8.5.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services, Deliverables and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.6 Exenai shall not be responsible for any delay caused by the Customer or any third party under contract with the Customer.
9. Customer Obligations
9.1 The Customer shall:
9.1.1 provide Exenai with:
a) all necessary cooperation in relation to this Agreement (including following all reasonable instructions and procedures given by Exenai relating to the Services); and
b) all necessary access to such information as may be required by Exenai
in order to provide the Services, including Customer Data, security access information and Customer Materials;
9.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;
9.1.3 where appropriate, use an up-to-date Virus scanning program on any Licensed Device or any other device through which it accesses the Exenai Platform;
9.1.4 obtain and shall maintain all necessary licenses, consents, and permissions necessary for Exenai, its contractors and agents to perform their obligations under this Agreement;
9.1.5 ensure that its network and systems together with any equipment, software and communication lines required for the Customer to use the Exenai Platform meet the minimum requirements necessary to use the Exenai Platform; and
9.1.6 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Exenai Platform, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
9.2 The Customer shall comply with the terms of the Order Form and any relevant Statement of Work and shall promptly provide Exenai with all assistance (including Customer dependencies and information) required by Exenai in respect of the performance of the Professional Services. The Customer warrants that any such information shall be accurate to the best of the Customer's knowledge and belief. The Customer acknowledges that if it does not comply with its obligations under this clause, Exenai may not be able to perform the relevant Professional Services and supply the Deliverables as specified in the Order Form or any relevant Statement of Work and will have no liability in respect thereof.
9.3 The Customer shall at no extra cost to Exenai provide Exenai (and Exenai' personnel) with safe access to appropriate office accommodation and facilities as required to enable Exenai to perform the Professional Services.
10. Fees
10.1 Fees
10.1.1 The Fees for the services provided by the Exenai Platform for the initial license term shall be as set out in the Order Form and shall commence from the Start Date. The Fees for the Exenai Platform shall increase by 4% for each new license renewal term. Exenai may increase the Fees by a different amount for each renewal term by giving no less than sixty (60) days' notice to the Customer and any increase shall only be effective from the date of the renewal term.
10.1.2 Where the Customer adds additional User Licenses to this Agreement in accordance with clause 3.3, the Customer shall be billed for such User Licenses from the date of purchase until the end of the Term in accordance with the payment terms set out in the Order Form.
10.1.3 If the Customer's use of the Exenai Platform exceeds the scope of use agreed in this Agreement at any time, including by permitting more than the agreed number or type of Users to access the Exenai Platform, then the Customer shall pay additional Fees on demand calculated by the number of additional Users, their type and the Products they are using multiplied by the then-current Exenai list price for the relevant Products for the full initial license term and/or renewal term (as applicable).
10.1.4 Fees for Professional Services or any other Services shall be as set out in the Order Form. Where certain Professional Services are to be billed on a time and materials basis, they shall be billed at the rates set out in the Order Form or Statement of Work. The Fees for Professional Services shall be adjusted in the event the scope of service changes. The Customer shall reimburse Exenai for actual and verifiable out-of-pocket expenses (including travel and related expenses) reasonably incurred by Exenai in connection with the Professional Services.
10.2 Invoices
10.2.1 Subject to the terms of a relevant Order Form, Exenai shall invoice the Customer for Fees for the Exenai Platform annually, quarterly or monthly in advance on the first day of the relevant period, or such other day in the period as Exenai may select.
10.2.2 Where a Customer adds new Users during the course of a billing period, the Customer shall be charged Fees for such Users in accordance with clause 10.1.2 and may be invoiced part in arrears and part in accordance with clause 10.2.1 in respect of such Users.
10.2.3 Exenai shall invoice the Customer for Fees for the Professional Services and any other Services in accordance with the terms of the Order Form or on completion of each Deliverable if not specified.
10.3 Payment
10.3.1 All invoices in respect of Fees for the Exenai Platform, Professional Services or any other Service are due and payable within thirty (30) days from the date of invoice, in the currency specified in the applicable Order Form. All payments shall be made in full (without deduction or set-off) to the credit of a bank account designated by Exenai in the Invoice.
10.3.2 If the Customer fails to make payment on the due date, Exenai reserves the right to charge interest which shall accrue on a daily basis on the unpaid amount at a rate equal to 4% per annum above the base rate of Starling Bank Limited from time to time, commencing on the due date and continuing until fully paid.
10.3.3 If the Customer fails to make payment on the due date, without prejudice to any other right or remedy available to Exenai, in respect of such failure, Exenai may, at its option:
a) suspend access (including all User access) to the Exenai Platform until payment of the due amount (including any interest accrued in accordance with clause 10.3.2) has been received; or
b) upon giving thirty (30) days' written notice to the Customer, terminate this Agreement.
10.3.4 All prices quoted to the Customer are quoted exclusive of amounts in respect of value added tax chargeable for the time being (VAT) or any other applicable local sales taxes, which Exenai shall charge and the Customer shall pay. The Customer shall be responsible for all taxes, charges and duties applicable to each transaction, including without limitation any sales, use, value added, customs, excise, withholding and similar taxes and duties imposed by any government entity (including any federal, state, provincial or local government entity), excluding taxes based on Exenai’ net income.
11. Confidentiality
11.1 Each party agrees that, for a period of five (5) years from receipt of any Confidential Information hereunder, it shall:
11.1.1 use such Confidential Information only for the purpose for which it was provided by the disclosing party (“Purpose”);
11.1.2 maintain such Confidential Information in confidence and not disclose it except to its employees, affiliates, contractors, sub-contractors, consultants or advisors (“Representatives”) who have a need to know such Confidential Information for the Purpose, provided that:
a) such Representatives are bound by written obligations consistent with the provisions of this clause 11;
b) the receiving party shall be responsible for any breach by its Representatives; and
c) use the same degree of care as it uses to protect its own confidential information of a similar nature, but not less than reasonable care.
11.1.3 The Customer agrees that the Services (including without limitation their design, layout, architecture and code), Documentation, feedback and Deliverables shall be deemed and treated as the Confidential Information of Exenai in perpetuity, regardless of the applicability of any exceptions in clause 11.2, and the Customer shall implement reasonable security measures in accordance with good industry practice to protect the same.
11.2 The obligations under clause 11.1 will not apply with respect to information that the receiving party can demonstrate:
11.2.1 was in its possession at the time of receipt hereunder, without any obligation of confidentiality with respect thereto;
11.2.2 is or becomes generally available to the public through no breach of clause 11.1 by the receiving party or its Representatives;
11.2.3 following receipt hereunder, is received from a third party under no duty of confidentiality; or
11.2.4 is independently developed by or for the benefit of the receiving party without use of or resort to Confidential Information of the disclosing party.
11.3 The receiving party may disclose Confidential Information to the extent required to comply with applicable law or judicial or governmental order or process, provided that the receiving party, to the extent legally permitted, promptly notifies the disclosing party in writing, and in advance, of such required disclosure and reasonably cooperates with the disclosing party, at the disclosing party’s expense, in its efforts to limit such disclosure or obtain a protective order or other confidential treatment with respect thereto.
11.4 Notwithstanding the terms of clause 11.1 and 11.2 and 11.3 above, Exenai shall be entitled to reference the Customer as being a customer of the Company in relation to its marketing activities.
12. Limitation on Liability
12.1 Nothing in this Agreement shall limit or exclude either party's liability for (a) death or personal injury caused by its negligence, or the negligence of its Affiliates, employees, agents or sub-contractors; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be excluded or limited by law.
12.2 To the maximum extent permitted by law and subject to clause 12.1, in no event shall Exenai or its Affiliates, licensors, sub-contractors or other suppliers be liable to the Customer (or any person claiming under or through the Customer) for any:
12.2.1 lost business or lost revenues;
12.2.2 lost profits;
12.2.3 loss of goodwill;
12.2.4 loss of anticipated savings;
12.2.5 business interruption;
12.2.6 loss of business information; or
12.2.7 any special, incidental, indirect, punitive, exemplary or consequential damages,
regardless of the form of action, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with this Agreement, including without limitation the use of or inability to use or access the Service, even if advised of the possibility of such damages.
12.3 To the maximum extent permitted by applicable law and subject to clauses 12.1 and 12.2, in no event shall Exenai and its Affiliates’ maximum aggregate liability under or in connection with this Agreement (and any applicable Order Form), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, exceed:
12.3.1 with respect to the Exenai Platform, a sum equal to the Fees payable by the Customer for the Exenai Platform during the 12 month period when the claim arose; and
12.3.2 with respect to the Professional Services, the amount equal to the Fees payable for such services pursuant to the applicable Order Form.
12.4 For the avoidance of doubt, Exenai shall not be responsible for any loss, damage, costs, expenses or other claims of the Customer or any User or any third party resulting from the suspension of access to the Exenai Platform in accordance with clauses 3.7 or 10.3.3(a).
13. Term and Termination
13.1 Term of the Agreement
13.1.1 The term of this Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with the termination rights set out in this clause.
13.2 Exenai Platform Term and Renewal
13.2.1 The term of access to the Exenai Platform shall commence on the Start Date and shall continue for the initial license term specified in the applicable Order Form, unless terminated earlier in accordance with this Agreement. If no initial license term is indicated in an applicable Order Form, the initial term shall be one year. The license term shall automatically renew for consecutive one-year periods unless either party delivers written notice to the other party of its intent not to renew the license term at least thirty (30) days prior to the end of the initial license term or then-current renewal term.
13.3 Termination
13.3.1 Either party may terminate this Agreement or an individual Statement of Work:
a) upon fourteen (14) days prior written notice if the other party has materially breached this Agreement, and failed to cure such breach within such period; or
b) immediately upon written notice if:
i) the other party becomes insolvent or makes a voluntary arrangement with its creditors;
ii) a petition is filed, a notice is given, a resolution is passed or an order is made or a party has a petition or order filed against it, under any applicable laws relating to bankruptcy, administration, liquidation, insolvency or in connection with the winding up of that other party;
iii) the other party ceases or threatens to cease to carry on business in the ordinary course; or
iv) any event occurs, or proceeding is taken, with respect to the other party (in any jurisdiction) that has equivalent or similar effect to any of the events mentioned in clause 13.3.1(b) (i) to (iii)(inclusive).
13.3.2 Exenai may terminate this Agreement if a controlling interest in the Customer is acquired by another party who is deemed by Exenai to be a direct competitor of Exenai.
13.4 Effect of Termination
13.4.1 On termination of this Agreement, all User Licenses granted pursuant to this Agreement shall immediately terminate.
13.4.2 Termination of this Agreement shall also automatically terminate all Statement of Work. Termination of an individual Statement of Work will not automatically terminate this Agreement or any other Statement of Work.
13.4.3 On termination of this Agreement, and/or any Statement of Work, all payment obligations incurred by the Customer through to the effective date of termination shall survive and be payable in accordance with their payment terms.
13.4.4 On termination of this Agreement, each party shall destroy and certify the destruction of, all of the other party’s Confidential Information and all copies thereof in its and its Affiliates’ possession. Upon termination of any Services, the Customer shall destroy and certify the destruction of all copies of the Software and Documentation in the Customer’s, its Affiliates’ or any third party’s possession.
13.4.5 On termination of this Agreement, Exenai will retain Customer Data stored in the Exenai Platform for a period of 60 days after the termination date so that the Customer may extract the Customer Data. After the 60 day retention period ends, the Customer’s account will be disabled and Exenai will delete the Customer Data.
13.4.6 The obligations of the parties under clauses that are of a continuing nature and capable of surviving termination of this Agreement shall continue in full force and effect notwithstanding such termination.
14. General
14.1 Notices
14.1.1 All notices required under this Agreement shall be in writing and delivered personally or sent by certified, registered or express mail (return receipt requested, postage prepaid) or internationally recognized overnight delivery service which tracks receipt, or by email, and shall be deemed given upon personal, confirmed or documented delivery. Notices shall be provided to the Customer at its address specified in the Order Form and to Exenai at the address in the Order Form. Alternatively, Exenai may give notice by communicating using the Services.
14.1.2 Either party may, by written notice to the other, designate another address for receipt of notices.
14.2 Assignment
14.2.1 Neither party shall, without the prior written consent of the other, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
14.3 No Third Party Beneficiaries
14.3.1 The Customer acknowledges that certain licensors of third party software distributed to the Customer hereunder are direct and intended third party beneficiaries of this Agreement and are entitled to enforce their agreements directly against Customer. In no event shall Exenai’ licensors be deemed parties to this Agreement and neither the Customer nor any third party including Affiliates shall have a right to raise claims pursuant to this Agreement against such third party licensors. Nothing in this Agreement shall be construed as giving any right, remedy or claim under this Agreement to any other person or entity who is not a party to this Agreement.
14.4 Force Majeure
14.4.1 Except for obligations to make payments hereunder, neither party will be liable for any delay or non-performance of its obligations under this Agreement caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, acts of terrorism, fires, floods, severe storm, failure of the Internet or other supplies or otherwise.
14.5 Entire Agreement; Conflict; Amendment; Waiver; Severability
14.5.1 This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supersedes all prior oral or written agreements, representations, understandings, arrangements or communications between the parties, with respect to the subject matter hereof.
14.5.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
14.5.3 Any failure or delay by a party to enforce or exercise any rights or remedy under this Agreement or by law shall not be deemed a waiver of any other right or remedy.
14.5.4 If a court of competent jurisdiction determines that any term or provision of this Agreement is illegal or unenforceable in whole or in part, such term or provision shall to that extent not be deemed to form part of this Agreement but the validity and enforceability of the
14.6 Governing Law and Jurisdiction
14.7 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 and construed in accordance with the laws of England. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1
Standard Support Services
1. Scope of Support
1.1 Exenai will provide its standard support services for the Exenai Platform and the Software to the Customer in accordance with the Exenai Support Policy and on the following terms:
1.1.1 remotely via telephone or other remote access service as specified in the Exenai Support Policy;
1.1.2 in the English language only; and
1.1.3 during the Support Hours only, which are from 09:00 to 18:00 Monday to Friday UK time excluding Recognised Holidays.
1.2 Exenai’ support services may be accessed:
1.2.1 by Customer Users only and certain services may only be accessed by the Customer’s named Customer Administrator;
1.2.2 by the methods set out in the Exenai Support Policy.
2. In order to be eligible for Exenai Support Services, the Customer’s computer hardware, operating systems, network and communications channels (including internet speed and connectivity) must meet the minimum requirements necessary to use the Exenai Platform.
3. Exenai will support the Exenai Platform and the Software. The Customer is responsible for all and any issues concerning its computer hardware, operating systems, network or communications channels (including internet speed and connectivity).
4. Exenai reserves the right to charge the Customer at its then current rates for the provision of Professional Services for any Support Services provided to the Customer outside of the parameters of this Schedule.
5. Exenai aims to respond to requests for Support Services made in accordance with the terms of this Schedule and the Exenai Support Policy on the basis set out below, based on the Problem Class (severity) assigned.
1 – CRITICAL
A problem has occurred where the Exenai Platform has completely stopped functioning and all Users are unable to access the platform; or where a substantial portion of Customer Data is at a significant risk of loss or corruption; or that compromises overall system integrity or data integrity (i.e. causing a system crash, loss or corruption of data) and significantly impacts operations in a production environment, and where no workaround is immediately available.
Response Time: 1 hour
2 – HIGH
A problem has occurred where major functionality is severely impaired. Operations can continue in a restricted fashion, although long-term productivity might be adversely affected, and where no workaround is immediately available.
Response Time: 8 hours
3 – NORMAL
A problem has occurred where there has been a limited adverse effect on business operations, or where a workaround is available
Response Time: 48 hours
4 – LOW
A problem has occurred where business operations have not been adversely affected; or a minor condition or documentation error that has no significant effect on operations; or a suggestion for new features or enhancements.
Response Time: 5 hours
Exenai aims to resolve all support requests as quickly and efficiently as possible, however some problems may require a software upgrade. Where a software upgrade is required, Exenai will inform the Customer of the planned timescales for any such release (if planned). Where the problem will not be resolved by issue of an upgrade or where there are no plans to issue an upgrade, Exenai will provide advice to the Customer as to the nature of the problem and how it might be worked around.
Without prejudice to the provisions contained above, Exenai will use its best endeavours to meet the response criteria defined above. Exenai makes no commitment that it will be able to meet these criteria or that it will be able to resolve every problem of the Customer
Schedule 2
Third Party Facilities and Data Processors.
1. Exenai Platform Cloud Servers
The Exenai Platform cloud servers are hosted and managed by Hetzner Online GmbH.
The primary data centre for these servers is Falkenstien and the secondary backup data centre is Nuremberg, keeping both data centres inside Germany and the EU.
1.1 Service Provider Information
Hetzner Online GmbH
Industriestr. 25
91710 Gunzenhausen
Germany
Telephone.: +49 (0)9831 505-0
Website: https://www.hetzner.com
Email: info@hetzner.com
Ansbach Registration Office, HRB 6089
VAT Reg. No. DE 812871812
CEO: Martin Hetzner, Stephan Konvickova, Günther Müller
Legals: https://www.hetzner.com/legal/legal-notice
1.2 Data Processing Agreements
Data processing agreement from Jan 9, 2023
1.3 TÜV RHEINLAND AUDIT REPORT
Every year, TÜV Rheinland performs an audit and writes a report on Hetzner Online GmbH to ensure that we at Hetzner are in compliance with our Data Protection Agreement (DPA). This audit is done in accordance with Appendix 2 of the DPA and with Art. 32 of the GDPR and its Recitals (amendments).
Audit report from Mar 1, 2023 (requires approval to share)
1.4 Technical and Organisational Measures
TECHNICAL AND ORGANIZATIONAL METHODS
IN ACCORDANCE WITH ART. 32 OF THE GDPR AND AMENDMENTS.