1. Application of this agreement
1.1. This Agreement applies to your use of the Services (as that term is defined below). By signing (or submitting to us) an Order Form for the provision of the Services, clicking I agree (or similar) in the course of an online sign-up process, or accessing or using the Services:
1.1.1. you agree to this Agreement; and
1.1.2. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to this Agreement on that person’s behalf and that, by agreeing to this Agreement on that person’s behalf, that person is bound by this Agreement.
1.2. We are not bound by this Agreement until we have accepted it. Our acceptance occurs on the when we notify you by email that we accept your Order Form, or commence supplying the Services to you (whichever is the earlier). If, after we have become accepted this Agreement, you submit a subsequent Order Form to us, we are not bound by that Order Form until we notify you by email that we accept that Order Form, or commence supplying the relevant Services to you (whichever is the earlier).
1.3. This Agreement applies to the exclusion of any standard terms you may have for the purchase of goods or services and any terms included, or incorporated by reference, in any request for quote, purchase order or other correspondence between us.
1.4. If you do not agree to this Agreement, you are not authorised to access and use the Services, and you must immediately stop doing so.
1.5. If there is any conflict between the documents that form part of this Agreement, they will have precedence in the descending order of priority set out below:
1.5.1. the Data Processing Addendum;
1.5.2. the Schedules to this Master Subscription Agreement;
1.5.3. the main body of this Master Subscription Agreement; and
1.5.4. the Order Form.
1.6. We may from time to time agree to provide you with professional services (e.g. design, development, implementation, training and testing and maintenance of Conversational AI Instances and Conversational Material) under a statement of work signed by both parties.
Our provision of professional services under a statement of work is governed by our professional services agreement (accessible at https://www.ambit.ai/legal) or another separate agreement with you. This Agreement does not govern our provision of professional services under a statement of work.
2. Changes
2.1. We may change the terms in this Master Subscription Agreement at any time:
2.1.1. as we consider (acting reasonably) is required as a result of any change in applicable laws;
2.1.2. where the change has no material adverse effect on you; or
2.1.3. as set out in clause 4.6.2.
2.2. Where we make a change referred to in clause 2.1 (Agreement Change), we will notify you of the change by email and by posting a notice within the Platform User Interface (Change Notice). Unless stated otherwise, any change takes effect from the date set out in the notice.
2.3. You may object to an Agreement Change on reasonable grounds by notifying us within 10 days of our Change Notice. Your notice of objection to the Agreement Change must explain the reasonable grounds for your objection. The parties must discuss your concerns about the Agreement Change in good faith with a view to resolve the objection to the Agreement Change in a commercially reasonable manner.
2.4. You are responsible for ensuring you are familiar with the latest Master Subscription Agreement. By continuing to access and use the Services from the date on which the Terms are changed, you agree to be bound by the changed Master Subscription Agreement.
2.5. This Master Subscription Agreement was last updated on 1 July 2021.
3. Interpretation
In this Agreement:
Authorised Partner means our authorised resellers, distributors, integration partners and similar.
Agreement means this Master Subscription Agreement, including the Data Processing Addendum, the Schedules and the Order Forms.
Business Day has the meaning given in the Published Service Levels.
Business Hours has the meaning given in the Published Service Levels.
Chat Channel means a third party messaging or chat service through which a Chatter can interact with a Conversational AI Instance using the Platform Services.
Chatter means an individual who interacts with a Conversational AI Instance provided using the Platform Services.
Chatter Terms of Use means a written terms of use or agreement between you and the Chatter governing the Chatter’s use of the Conversational AI Services (which may be by way of a click-through terms of use or similar, provided the terms bind the Chatter).
Chatter Data means all data and information (including Chatter Personal Information) contributed by a Chatter during a Conversation.
Chatter Personal Information means all personal information about a Chatter.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Underlying Systems. Your Confidential Information includes the Content.
Content means all data, content, and information (including personal information) owned, held, used or created by you or your Permitted Users or on your or your Permitted Users’ behalf that is stored or processed using, or inputted into, the Platform Services, including the content of the Conversational Material, but excluding the Chatter Data.
Conversation means an interaction between Chatter and a Conversational AI Instance using the Conversational AI Services.
Conversational AI Instance means a chatbot or other conversational artificial intelligence instance.
Conversational AI Services means Conversational AI Instances that utilise the Platform Services.
Conversational Material means the written language and conversational direction for a Use Case implemented into a Conversational AI Instance as the framework for directing Chatter engagement through Conversations.
Data Processing Addendum means our data processing addendum accessible at https://www.ambit.ai/legal .
Extended Hours has the meaning given in the Published Service Levels.
Fees means the fees for Paid Services (including any feature of Paid Services that you subsequently subscribe to), as set out in the Order Form or as agreed otherwise in writing with us, and as may be updated from time to time in accordance with clause 10.7.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
Free Services means the Platform Services provided to you under a free trial or other non paying plan (which may include services or functionality made available to you to try at your option at no additional charge which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or similar), as set out in an Order Form or otherwise made available by us to you.
Good Industry Practice means, in relation to an undertaking, the exercise of that degree of skill and care which would reasonably be expected from an experienced operator engaging in the same or a similar undertaking.
GDPR means the General Data Protection Regulation of the European Union and the equivalent laws of the United Kingdom.
Including and similar words do not imply any limit.
Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.
Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Minimum Terms means the minimum terms set out in the Schedule.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Order Form means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between you and us, including any documents attached to that document or order.
Out of Hours has the meaning given in the Published Service Levels.
Overage Charges means the applicable Fees for use of the Services in excess of the limits stated in the Order Form.
Paid Service means a Platform Service offered under a fees-based plan.
a party includes that party’s permitted assigns.
Permitted Users means your personnel and, if you are a company, your Related Companies and your Related Companies’ personnel who are authorised to access and use the Platform User Interface on your behalf in accordance with clause 8.1.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Personal information means information about an identifiable, living person, and includes personal data, personally identifiable information and equivalent information under applicable privacy and data protection laws.
Personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Platform Services means the products and services that are ordered by you under an Order Form or provided to you as Free Services and that are made available online by us, including associated offline or mobile components, but excluding Support Services.
Platform User Interface means the user interface areas of the Platform Services that are accessible by you and your Permitted Users using a User ID.
Product Documentation means the product description statement, architectural documentation and/or other product information relating to the Platform Services that we provide to you.
Published Service Levels means the service level documentation for the Platform Services set out in the Product Documentation.
Related Company has the meaning has the meaning given in section 2(3) of the Companies Act 1993 (read as if the expression “company” in that subsection included any body corporate of any jurisdiction).
Sales Tax means sales tax, value added tax, goods and services tax, or equivalent tax payable under any applicable law.
Services means the Platform Services and the Support Services.
Supplementary Terms means the supplementary terms that apply where you use certain Chat Channels in conjunction with the Platform Services, as set out in the Schedules.
Support Services means non-automated services that are provided by us and/or our Authorised Partners to support and maintain the Platform Services and to assist you in your use of the Platform Services.
Start Date means the date we accept this Agreement in accordance with clause 1.2.
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Platform Services, including any third party solutions, systems and networks.
Use Case means the Conversational AI Instance use cases set out in the Order Form or as otherwise agreed in writing with us.
User ID means a unique name and/or password allocated to you or a Permitted User to allow you or that Permitted User to access certain parts of the Platform Services.
We, us or our means Ambit AI Limited, a New Zealand company (company number 6262668).
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
4. Services
4.1. We will provide the Services:
4.1.1. in accordance with this Agreement, Good Industry Practice and applicable laws; 4.1.2. exercising reasonable care, skill and diligence; and
4.1.3. using suitably skilled, experienced and qualified personnel.
4.2. We must provide Platform Services for use for production purposes in accordance with the Product Documentation in all material respects. We may change the Product Documentation at any time by notifying you of the change by email and/or by posting a notice through the Platform User Interface, provided the change has no material adverse effect on you. Unless stated otherwise, this change will take effect from the date set out in the notice.
4.3. We may, if specified in the Order Form or otherwise agreed with you, provide you with Platform Services for development, testing and/or sandbox purposes. You acknowledge that:
4.3.1. Platform Services provided for development, testing and/or sandbox purposes: 4.3.1.1. may not comply with the Product Description; and
4.3.1.2. are provided on an as is basis; and
4.3.2. without limiting our obligations under clause 13, all liability, conditions, warranties and guarantees relating to any Platform Services provided for development, testing and/or sandbox purposes are excluded by us to the maximum extent permitted by law.
4.4. Our provision of the Services to you is non-exclusive. Nothing in this Agreement prevents us from providing the Services to any other person.
4.5. Subject to clause 4.6, we must use reasonable efforts to ensure the Platform Services are available on a 24/7 basis. However, it is possible that on occasion the Platform Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Planned outages will occur outside Business Hours only. We will publish through the Platform User Interface or notify you by email in advance of any planned outage.
4.6. We may, if specified in the Order Form, make available optional services that enable the Platform Services to be delivered using Chat Channels and/or inter operate with a range of third party service features (Integration Add Ons). We do not make any warranty or representation on the availability or performance of those features. Without limiting the previous sentence:
4.6.1. if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make the relevant Chat Channel or Integration Add On available to you. If we cease the availability of a Chat Channel or Integration Add On:
4.6.1.1. where we are charging you a fee for that Chat Channel or Integration Add On as a separate item from the Fees for the core Platform Services (Add On Fee):
- we will cease charging you any portion of the Add On Fee that represents a pass through of third party costs incurred by us for the use of the third party feature, with effect from the date the third party feature provider ceases charging us that fee; and
- we will cease charging you any portion of the Add On Fee that is not a pass-through of third party costs, with effect from the date we cease the availability of the Integration Add On; and
4.6.1.1. no other refund, discount or other compensation shall be payable by us; and
4.6.2. if a third party feature provider changes the terms on which it provides that feature to us, we may change the terms in this Agreement as we consider necessary (acting reasonably) to reflect that change in accordance with clause 2.2, and you may object our change to the terms in this Agreement in accordance with clause 2.3.
5. Free services
Where you or your Permitted Users use Free Services:
5.1. the Free Services are provided on an as is basis, and, despite any other provision in this Agreement, all liability, conditions, warranties and guarantees in relation to the Free Services are excluded by us to the maximum extent permitted by law;
5.2. no Fees are payable for the right to access and use the Free Services;
5.3. the right to access and use the Free Services will end at the end of the advertised trial or availability period (if applicable);
5.4. either party may terminate your and your Permitted Users’ right to access and use the Free Services at any time by giving notice to the other party;
5.5. nothing in this Agreement requires:
5.5.1. you, on termination of the Free Services, to subscribe to Paid Services or any other service provided by us; or
5.5.2. us, on termination of the Free Services, to provide you or your Permitted Users with access and use of the Services or any other service, unless you have subscribed to Paid Services; and
5.6. except as set out in this clause 5, this Agreement applies to your and your Permitted Users’ access and use of the Free Services.
6. Support
6.1. If the Order Form specifies that we are providing Support Services to you, we will provide Support Services in accordance with:
6.1.1. clauses 6.5 to 6.10; and
6.1.2. the Published Service Levels.
6.2. If the Order Form specifies that you are receiving Support Services from an Authorised Partner:
6.2.1. clauses 6.5 to 6.10 do not apply; and
6.2.2. the terms of which the Support Services will be provided will be as agreed between you and the Authorised Partner.
6.3. Where you require Support Services, you may place a request for Support Services in accordance with clause 6.6.3. (Support Request). Subject to the remainder of this clause 6, on receipt of a Support Request, we will:
6.3.1. provide telephone and email support in the form of consultation, assistance and advice; and
6.3.2. use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue).Resolution may include providing a work around.
6.4. We may change the Published Service Levels from time to time by changing the Product Documentation in accordance with clause 4.2, provided the change has no material adverse effect on you.
6.5. Support Services during Business Hours are included in the Fees. Support Services during Extended Hours and/or Out of Hours may be included in the Fees and/or subject to an additional charge, as set out in the Order Form. If we agree to provide Support Services outside of the hours agreed to in the Order Form, we will invoice you for (and you must pay for) those Support Services at the rates set out in the Order Form.
6.6. Our provision of Support Services is conditional on:
6.6.1. there being no overdue Fees (excluding, to avoid doubt, Fees that have been disputed in accordance with clause 10.5) that have not been paid within 30 days of us giving you notice of the overdue amount;
6.6.2. you first using reasonable efforts to resolve the issue using any documentation or other information made available by us (including through the Platform User Interface) to enable you and your Permitted Users to use the Platform Services;
6.6.3. you logging a request for support via email, telephone, or other method as supplied by us; and
6.6.4. you providing us with all information and access reasonably required to enable us to provide the requested Support Services.
6.7. Our Support Services do not include the development or provision of new features or functionality (including new Use Cases, Conversational Material or integrations).
6.8. Nothing in this Agreement requires us to provide Support Services where support is required as a result of:
6.8.1. a breach of this Agreement by you or a Permitted User; or
6.8.2 the use of the Platform Services in a manner or for a purpose not reasonably contemplated by this Agreement and not otherwise authorised in writing by us.
6.9 Any response and/or resolution times provided by us (in this Agreement or otherwise) are targets only and we will have no liability to you for any failure to meet those response and/or resolution times.
7. Product enhancements
At your request, we may from time to time agree to develop or provide new features or functionality, subject to:
7.1 you and us agreeing (or you and us agreeing with an Authorised Partner) the terms and conditions that are to apply to the development and/or provision of such features or functionality. In some cases, a statement of work may need to be entered into to govern the development and/or provision of such features or functionality (and any such statement of work between you and us will be governed by our Professional Services Agreement at https://www.ambit.ai/legal or another separate agreement with you); and
7.2 you paying the applicable fees.
8. Your obligations
8.1 You may authorise any member of your personnel and, if you are a company, any Related Company and any member of your Related Companies’ personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each Permitted User’s compliance with clauses 8.2 and 8.3 and any other reasonable condition notified by us to you.
8.2 You and your Permitted Users must:
8.2.1 use the Services in accordance with this Agreement solely for:
8.2.1.1 in the case of Paid Services, the Use Cases;
8.2.1.2 your and, if you are a company, your Related Companies’ own business purposes; and
8.2.1.3 lawful purposes (including complying with any anti-spam laws and regulations); and
8.2.2 except expressly as set out in this Agreement, not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
8.3 When accessing the Platform Services, you and your Permitted Users must:
8.3.1 keep your and their User IDs secure including not disclosing it or permitting any third party to use it, and notify us immediately on becoming aware that any person has unauthorised access or use of your or their User ID;
8.3.2 not impersonate another person or misrepresent authorisation to act on behalf of others or us;
8.3.3 correctly identify the sender of all electronic transmissions;
8.3.4 not attempt to undermine the security or integrity of the Platform Services or the Underlying Systems;
8.3.5 not use, or misuse, the Platform Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Platform Services;
8.3.6 not attempt to view, access or copy any material or data other than: 8.3.6.1 that which you and they are authorised to access; and
8.3.6.2 to the extent necessary for you and them to use the Services in accordance with this Agreement;
8.3.7 neither use the Platform Services in a manner, nor transmit, input or store any Content, that breaches any third party right (including Intellectual Property Rights and rights of privacy or publicity) or is Objectionable, incorrect or misleading;
8.3.8 not remove any copyright notice, trade mark or other proprietary indication appearing on or in relation to the Platform Services; and
8.3.9 not decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of any software from object code except to the extent expressly permitted by applicable law or treaty despite this limitation.
8.4 Prior to making any Conversational AI Services available to a Chatter, you must have ensured that the Chatter has accepted your Chatter Terms of Use. This obligation will be satisfied if you comply with the guidance provided by us as to the means of achieving this. Your Chatter Terms of Use must:
8.4.1 be consistent with this Agreement; and
8.4.2 be no less protective of us than the Minimum Terms.
8.5 You must have a published privacy policy that sets out how you collect, use, hold and process personal information obtained by you through Conversations.
8.6 Without limiting clause 8.3 and except as set out in clause 8.4, no individual other than a Permitted User may access or use the Platform User Interface.
8.7 A breach of any of this Agreement by any of your Related Companies or your or your Related Companies’ personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of this Agreement by you.
8.8 You are responsible for ensuring you have:
8.8.1 all equipment, facilities and services (including internet access) required to enable you to access and use the Platform Services; and
8.8.2 all licenses, authorisations and consents required for you, your Permitted Users and your Chatters to use the Platform Services, including to use, store and input Content and Chatter Data into, and process and distribute Content and Chatter Data through, the Platform Services.
9. Content and Chatter Data
9.1 You acknowledge that we (including our personnel) may collect, use, hold and process:
9.1.1 Content and Chatter Data to perform our obligations and exercise our rights under this Agreement during the term of this Agreement and for a decommissioning period of no more than 30 days following its expiry or termination;
9.1.2 anonymous material from Conversations to build and improve the natural language models and algorithms contained within the Platform Services through the use of machine learning processes, including that:
9.1.2.1 through the use of machine learning techniques, anonymous material from Conversations may be incorporated into the natural language models and algorithms that are used by the Platform Services to understand and generate natural language;
9.1.2.2 such models and algorithms may, both during the term of this Agreement and following its expiry or termination:
- be used within the Platform Services;
- be further improved through the use of machine learning processes; and • produce conversational material the same as, or similar to, your Conversational Material.
9.2 You acknowledge and agree that:
9.2.1. we may use anonymous Content, Chatter Data and information about your, your Permitted Users’ and Chatters’ use of the Platform Services to generate anonymous, aggregated statistical and analytical data (Analytical Data);
9.2.2 we may use Analytical Data for our internal research, analytical and product development purposes, and to conduct statistical analysis and identify trends and insights, including publishing Analytical Data and supplying Analytical Data to third parties, both during the term of this Agreement and following its expiry or termination; and
9.2.3. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
9.3. We do not require, and have no intention to collect, use, hold or process, any Chatter Personal Information for our own business purposes. However, you acknowledge that Chatters may provide personal information during a Conversation where they have not been requested to do so and it would not be reasonably expected that they would do so. We will not be liable to you, or held to be in breach of this Agreement, for collecting, using, holding or processing Chatter Data that is Chatter Personal Information for our own business purposes if we were not aware, and would not reasonably be expected to be aware, that the Chatter Data was Chatter Personal Information. If we become aware that we are collecting, using, holding or processing Chatter Data that is Chatter Personal Information for our own business purposes, we will immediately delete or anonymise the relevant Chatter Data. If you have reason to believe we are collecting, using, holding or processing Chatter Data that is Chatter Personal Information for our own business purposes, please contact us at legal@ambitai.com.
9.4. Except as otherwise required by applicable law or the Data Processing Addendum, we will not be required to delete Content or Chatter Personal Information contained in archived computer system backups made in accordance with our standard security and/or disaster recovery procedures.
9.5. To the extent permitted by law the parties acknowledge and agree that:
9.5.1. in collecting, holding and processing Chatter Personal Information through the Services in accordance with this Agreement, we are acting as your agent for the purposes of the New Zealand Privacy Act 2020 and as a service provider and data processor for the purposes of any other applicable privacy law (including the GDPR, if applicable);
9.5.2. the Data Processing Addendum applies to Chatter Personal Information; and
9.5.3. you must arrange all consents and approvals (including, in respect of any Chatter Personal Information, all necessary consents from the relevant individual) that are necessary for us to collect, use, hold and process the Content and Chatter Data in accordance with this Agreement and the Data Processing Addendum.
9.6. While we will take standard industry measures in accordance with Good Industry Practice to back up all Content and Chatter Data stored using the Platform Services, you agree to keep a separate back-up copy of all Content that is uploaded by you onto the Platform Services and any Chatter Data you require.
9.7. You agree that we may store and access Content and Chatter Data provided to us for testing purposes (including any personal information included in that Content and Chatter Data) in non-production environments in secure servers in the United States, Europe, Australia and New Zealand.
9.8. You agree that we may store and access Chatter Personal Information in secure servers in countries that are members of the European Union, the United Kingdom, Australia and New Zealand only, unless otherwise agreed in writing.
9.9. You agree that we may delete, edit or remove Content and Chatter Data and other personal information if we consider (acting reasonably) that we are required to do so to comply with applicable law.
10. Fees
10.1 You must pay us the Fees:
10.1.1 unless otherwise set out in the Order Form, in advance of the Services being enabled or provided or the subscription period to which the Fees relate (as applicable) (except for Overage Charges and additional Support Services provided under clause 6.5, which are payable on the terms stated in the Order Form); and
10.1.2 electronically in cleared funds without any set-off or deduction.
10.2 Fees for Platform Services may be based on the size of the Conversational AI Instances and conversational material that you are using from time to time and Platform Services may be subject to usage limits and Overage Charges (e.g. concurrent sessions, monthly messages), as set out in the Order Form.
10.3 The Fees exclude Sales Tax, which you must pay on taxable supplies.
10.4 Unless otherwise set out in the Order Form, we will invoice you for the Fees annually in advance (except for Overage Charges and Support Services provided under clause 6.5, which will be invoiced monthly in arrears).
10.5 You may withhold payment of an invoice or part of an invoice that you dispute in good faith. You must notify us of the dispute within 30 days of becoming aware of the issue and pay any undisputed portion of the disputed invoice in accordance with clause 10.1. Any disputed invoice must be dealt with in accordance with the process set out in clause 17.
10.6 We may charge interest on overdue amounts. Before charging interest, we will give you notice of the overdue amount. If you do not pay the overdue amount within 10 days of our notice, interest will be calculated from the 10th day after the date of the notice to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
10.7 We may increase the Fees by giving at least 30 days’ notice, provided that any Fees increase will not take effect until the expiry of the initial term set out in clause 16.1a or as otherwise set out in the Order Form. If you do not wish to pay the increased Fees, you may terminate this Agreement on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate this Agreement in accordance with this clause, you are deemed to have accepted the increased Fees.
11. Intellectual property
11.1 Subject to clauses 11.2 and 11.3, title to, and all Intellectual Property Rights in, the Services, and all Underlying Systems is and remains our property (and the property of our licensors). You must not dispute that ownership.
11.2 Title to, and all Intellectual Property Rights in, the Content remains your property (or, where applicable, the property of your licensors). You grant us a worldwide, non-exclusive, fully paid up, non-transferable (except as set out in clause 18.12), irrevocable license to use, store, copy, modify, make available and communicate, and to allow our third party service providers that provide, host or maintain the Underlying Systems to use, store, copy, modify, make available and communicate, the the Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Agreement.
11.3 Title to, and all Intellectual Property Rights in, the Chatter Data (as between the parties) remains the property of the Chatter. You must ensure that the Chatter grants us a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Chatter Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Agreement and subject to the Data Processing Addendum.
11.4 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
11.5 If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
11.5.1 all Intellectual Property Rights in anything we create as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
11.5.2 we may use or disclose the feedback for any purpose.
11.6 You acknowledge that the Platform Services may link to third party websites or feeds that are connected or relevant to the Platform Services. Any link from the Platform Services does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
12. Indemnities
12.1 We indemnify you from and against any claim or proceeding brought against you to the extent that claim or proceeding alleges that your use of the Platform Services in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to you:
12.1.1 promptly notifying us in writing of any IP Claim;
12.1.2 making no admission of liability and not otherwise prejudicing or settling the IP Claim, without our prior written consent; and
12.1.3 giving us complete authority and information required for us to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for our account.
12.2 The indemnity in clause 12.1 does not apply to the extent that an IP Claim arises from or in connection with:
12.2.1 a breach of this Agreement by you or a Permitted User;
12.2.2 the use of the Platform Services in a manner or for a purpose not reasonably contemplated by this Agreement and not otherwise authorised in writing by us;
12.2.3 any Content or Chatter Data; or
12.2.4 the combination or use of the Platform Services with any other device, service, software or system not provided by us if such infringement would not have arisen but for that combination or use.
12.3 If at any time an IP Claim is made, or in our reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, we may (at our option):
12.3.1 obtain for you the right to continue using the items that are the subject of the IP Claim;
12.3.2 modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing; or
12.3.3 if we cannot achieve the remedies in clauses 12.3a and 12.3b using commercially reasonable efforts, terminate this Agreement.
12.4 You indemnify us harmless against any liability, claim, proceeding, cost, expense (including the reasonable actual legal fees charged by our attorneys) and loss of any kind suffered or incurred by us arising from:
12.4.1 any actual or alleged claim by a third party that any Content or Chatter Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Content or Chatter Data is Objectionable, incorrect or misleading;
12.4.2 any warranty, representation or indemnity given by you to a Chatter or relating to the Platform Services which is inconsistent with the terms of this Agreement or the Minimum Terms; or
12.4.3 any breach of your obligations under clause 8.4.
13. Confidentiality
13.1 Each party must, unless it has the prior written consent of the other party:
13.1.1 keep confidential at all times the Confidential Information of the other party;
13.1.2 effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
13.1.3 disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 13.1.1 and 13.1.2.
13.2 The obligation of confidentiality in clause 13.1 does not apply to any disclosure or use of Confidential Information:
13.2.1 for the purpose of performing a party’s obligations, or exercising a party’s rights, under this Agreement;
13.2.2 required by law (including under the rules of any stock exchange);
13.2.3 which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
13.2.4 which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
13.2.5 by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than clause 13.1.
13.3 We may use your name and logo on our marketing website(s)
(currently https://www.ambit.ai and https://www.ambithub.com) and in any other marketing or publicity material for the purpose of identifying that you are or have been our customer. Any such usage must be in accordance with any usage and marketing guidelines provided by you from time to time and must not be Objectionable or otherwise commercially harmful to you.
14. Warranties
14.1 Each party warrants that it has full power and authority to enter into, and perform its obligations, under this Agreement.
14.2 To the maximum extent permitted by law:
14.2.1 our warranties are limited to those set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
14.2.2 except as set out in this Agreement, we make no representation concerning the quality of the Services and do not promise that the Services (including information generated through your use of the Services) will:
14.2.2.1 meet your requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility you may have; or
14.2.2.2 be secure, free of viruses or other harmful code, uninterrupted or error free.
14.3 You agree and represent that you are acquiring the Services, and accepting this Agreement, for the purpose of a business and that no consumer protection legislation applies to the supply of the Services to you or this Agreement.
14.4 Where legislation or rule of law implies into this Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Agreement. However, our liability for any breach of that condition or warranty is limited, at our option, to:
14.4.1 supplying the Services again; and/or
14.4.2 subject to clause 15.1, paying the costs of having the Services supplied again.
15. Liability
15.1 Each party’s maximum aggregate liability under or in connection with this Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you relating to the Services in the 12 month period prior to the date of the first event giving rise to liability.
15.2 Neither party is liable to the other under or in connection with this Agreement or the Services for any:
15.2.1 loss of profit, revenue, savings, business, use, and/or goodwill; or 15.2.2 consequential, indirect, incidental or special damage or loss of any kind.
15.3. To the extent we have liability for loss or corruption of data, our sole liability for that loss or corruption is to restore, reload or reconstruct the data from the most recent available good back-up, whether made by you or us.
15.4 We are not liable to you under or in connection with this Agreement for:
15.4.1 any loss, liability or damage incurred by you under any provision (including an indemnity) in your Chatter Terms of Use or in connection with any other warranty, representation or indemnity given by you to a Chatter which is inconsistent with the terms of this Agreement or the Minimum Terms; or
15.4.2 if any undisputed Fees have not been paid.
15.5 Clauses 15.1 and 15.2 do not apply to exclude or limit our liability: 15.5.1 under the indemnity in clause 12.1;
15.5.2 for breach of Intellectual Property Rights;
15.5.3 under or in connection with this Agreement for:
15.5.3.1 personal injury or death;
15.5.3.2 fraud, wilful or unlawful misconduct; or
15.5.3.3 breach of clause 13; or
15.5.4 that cannot be excluded or limited at law.
15.6 Clause 15.2 does not apply to limit your liability:
15.6.1 to pay the Fees;
15.6.2 under the indemnities in clause 12.4; or
15.6.3 for breach of Intellectual Property Rights;
15.6.4 for those matters stated in clause 15.5.3.
15.7 Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.
15.8 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement or the Services.
16. Term, termination and suspension
16.1 Unless terminated earlier in accordance with this Agreement and unless otherwise set out in the Order Form, this Agreement:
16.1.1 starts on the Start Date and continues for the initial term set out in the Order Form, or if there is none, an initial term of 12 months; and
16.1.2 at the end of the initial term or any subsequent term, continues for successive terms of 12 months unless a party gives 30 days’ notice that this Agreement will terminate on the expiry of the then current term.
16.2 Either party may, by notice to the other party, immediately terminate this Agreement if the other party:
16.2.1 breaches any material provision of this Agreement and the breach is not:
16.2.1.1 remedied within 30 days of the receipt of a notice from the first Party requiring it to remedy the breach; or
16.2.1.2 capable of being remedied; or
16.2.2 becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
16.3 In addition to our other rights of termination, either party may terminate this Agreement immediately on notice if required to enable that party to comply with any change to applicable laws or regulations.
16.4 Termination of this Agreement does not affect either party’s rights and obligations that accrued before that termination.
16.5 On termination of this Agreement:
16.5.1 you must pay all Fees for the Services provided to you prior to that termination; and
16.5.2 by you under clause 16.2, we will refund prepaid Fees to the extent those Fees relate to any period after termination.
16.6 No compensation is payable by us to you as a result of termination of this Agreement for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid except as set out in clause 16.5 or as required by law.
16.7 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of this Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
16.8 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Platform Services and/or delete, edit or remove the relevant Content or Chatter Data if we consider (acting reasonably) that:
16.8.1 you or any of your personnel have:
16.8.1.1 undermined, or attempted to undermine, the security or integrity of the Platform Services or any Underlying Systems;
16.8.1.2 used, or attempted to use, the Platform Services:
- for improper purposes; or
- in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Platform Services;
16.8.1.3 transmitted, inputted or stored any Content or Chatter Data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and rights of privacy or publicity), or that is or may be Objectionable, incorrect or misleading; or
16.8.1.3 otherwise materially breached this Agreement; and
16.8.2 either:
16.8.2.1 an immediate restriction, suspension, deletion, edit or removal is required in order to protect the security or integrity of the Platform Services or any Underlying Systems or to comply with applicable law; or
16.8.2.2 any such matter is not remedied within 10 days of the receipt of a notice from us requiring you to remedy the matter.
17. Disputes
17.1 Both parties must use their best efforts to resolve any dispute that may arise under, or in connection with, the Agreement through good faith negotiations.
17.2 If the parties are unable to resolve a dispute by negotiation within a reasonable period of time, either party may require the dispute to be escalated for resolution by their chief executives or equivalent officers.
17.3 If a dispute is unable to be resolved under clause 17.2 within 10 Business Days of escalation or such longer period as the parties agree, either party may refer the dispute to mediation by notice to the other party, in which case:
17.3.1 The mediation will be subject to the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. (AMINZ).
17.3.2 The mediation will be conducted in Auckland, New Zealand by an independent mediator and at a fee agreed to by each party.
17.3.3 The cost of the mediator will be borne in equal proportions by the parties.
17.3.4 If the parties cannot agree on the mediator and/or the mediator’s fee within 5 Business Days of the referral of the dispute to mediation, the mediator will be selected, and/or the mediator’s fee will be determined, by the President of AMINZ.
17.4 Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
17.5 This clause 17 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
18. General
18.1 Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure.
18.2 Neither party will, during the term of this Agreement and for 6 months after its expiry or termination (Restraint Period), without the prior written consent of the other party, directly or indirectly solicit or offer employment or any contract for services to any of the other party’s personnel, or solicit or entice any member of the other party’s personnel to terminate their position, employment or relationship with the other party.This clause does not restrict a party from hiring any person who has responded to a genuine published advertisement of a position with that party that is not targeted at the particular individual and without any other solicitation.
18.3 No person other than you and us has any right to a benefit under, or to enforce, this Agreement.
18.4 For us to waive a right under this Agreement, that waiver must be in writing and signed by us.
18.5 Subject to clause 9.5.1., we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.
18.6 If we need to contact you, we may do so by email. You agree that this satisfies all legal requirements in relation to written communications.
18.7 This Agreement, and any dispute relating to this Agreement or the Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with this Agreement or the Services.
18.8 Clauses which, by their nature, are intended to survive termination of this Agreement, including clauses 9.1, 11, 12, 13, 14, 15, 16.5 to 16.8 and 18.7, continue in force.
18.9 If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from this Agreement. The remainder of this Agreement will be binding on you and us.
18.10 Except as expressly set out otherwise in this Agreement, any variation to this Agreement must be in writing and signed by both parties.
18.11 Neither party may assign, novate or transfer any right or obligation under this Agreement other than to a Related Company without the other party’s prior written consent, that consent not be unreasonably withheld. Each party remains liable for its obligations under this Agreement despite any approved assignment or transfer.
Schedule 1: Minimum terms
- Subject to paragraph 2 of these Minimum Terms, we (and our licensors) own all Intellectual Property Rights in the Platform Services.
- The Chatter owns all Intellectual Property Rights in the Chatter Data.
- The Chatter must use the Platform Services for lawful personal or internal business purposes only and must not copy, reproduce, reverse-engineer, decompile, disassemble, resell, distribute or modify the Platform Services without our written consent except to the extent expressly permitted by law.
- The Chatter Terms of Use must include a copy of the privacy policy referred to in clause 8.5 of this Agreement or provide the Chatter with a means of accessing that privacy policy (e.g. a web link to that policy).
- The Chatter Terms of Use must obtain all necessary consents, approvals and licences (including, in respect of any personal information, all necessary consents from the relevant individual) that are necessary for us to collect, use, hold and process Chatter Data in accordance with this Agreement.
- Subject to paragraph 8 of these Minimum Terms, the Chatter Terms of Use must include exclusions of our warranties that are no less protective of us than the warranty exclusions set out in clause 14.2 of this Agreement.
- Subject to paragraph 8 of these Minimum Terms, the Chatter Terms of Use must include limitations of our liability that are no less protective of us than the limitations on liability set out in clause 15 of the Agreement.
- The Chatter Terms of Use must not exclude or limit any guarantee, warranty or liability that cannot be excluded or limited at law.
- The Chatter Terms of Use is to provide that all of the above terms are for the benefit of, and are enforceable by, us against the Chatter.
To avoid doubt, there is no requirement for the Chatter Terms of Use to refer to us by name – a reference to your supplier will suffice.
Schedule 2: Supplementary terms for Facebook Chat Channels
1. Interpretation
In this Schedule:
Chatter Facebook Data means any data (including a Chatter’s content or information, and whether personally identifiable or anonymous), that you access through use of the Facebook Chat Services, e.g. user data from a Chatter’s Facebook page.
Facebook means Facebook, Inc. and/or any of its Related Companies.
Facebook Chat Services means any services provided by Facebook that you use as a Chat Channel in conjunction with the Platform Services.
Facebook Online Terms means:
- Facebook’s Terms at www.facebook.com/terms.php;
- Facebook’s Commercial Terms at www.facebook.com/legal/commercial_terms; and • Facebook’s Platform Policy at https://developers.facebook.com/policy.
Facebook Supplemental Terms means any supplemental terms that Facebook requires that you and/or we enter into in connection with your and/or our use of the Facebook Chat Services.
Service Provider means any service provider, other than us and our service providers, that you use directly or indirectly in connection with the Chatter Facebook Data and/or the Facebook Chat Services.
2. Application
2.1 Unless stated otherwise in the Order, this Schedule applies when you use Facebook Chat Services in conjunction with the Platform Services.
2.2 Any access to or use of Chatter Facebook Data is subject to, and you agree to comply with, the Facebook Online Terms and this Schedule, including the privacy and data obligations (e.g., use and transfer restrictions and deletion obligations) set out in the Facebook Online Terms and this Schedule.
2.3 This Schedule does not limit your obligations or Facebook’s rights under the Facebook Online Terms, and it includes privacy and data obligations on you that are additional to those in the Facebook Online Terms.
3. Chatter Facebook data
3.1 You must make available your user terms and privacy policy as required by the Facebook Online Terms.
3.2 You represent, warrant and covenant that your user terms and privacy policy do not and will not supersede, modify, or be inconsistent with the Facebook Online Terms or this Schedule.
3.3 You authorise us to access and use, and we agree to only access and use, Chatter Facebook Data that we access in the course of providing the Platform Services to you in accordance with:
3.3.1 the Facebook Online Terms and any Facebook Supplemental Terms that apply to us. 3.3.2 the Facebook Online Terms and any Facebook Supplemental Terms that apply to us. 3.4 meet or exceed industry standards given the sensitivity of the Chatter Facebook Data;
3.4.1 are compliant with applicable law (including data security and privacy laws, rules and regulations); and
3.4.2 are compliant with applicable law (including data security and privacy laws, rules and regulations); and
3.4.3 Following the discovery of any suspected or actual Unauthorised Data Use, you must: 3.5 Following the discovery of any suspected or actual Unauthorised Data Use, you must: 3.5.1 immediately notify us and Facebook of the incident, and the notice must describe: 3.5.1.1 the nature of the Unauthorised Data Use;
3.5.1.2 when the Unauthorised Data Use occurred;
3.5.1.3 your corrective action to respond to the Unauthorised Data Use; and
3.5.1.4 promptly take appropriate actions in compliance with applicable laws to address and remedy such incident (including notifying the affected users in compliance with applicable laws and taking any other actions reasonably requested by us and Facebook).
3.5.2 promptly take appropriate actions in compliance with applicable laws to address and remedy such incident (including notifying the affected users in compliance with applicable laws and taking any other actions reasonably requested by us and Facebook).
4. Compliance reviews
4.1 You must use commercially reasonable efforts to obtain permission from any Service Providers for us, Facebook and/or the Auditors (as applicable) to perform the Compliance Review.
4.2 You must use commercially reasonable efforts to obtain permission from any Service Providers for us, Facebook and/or the Auditors (as applicable) to perform the Compliance Review.
4.3 Any Compliance Review will be conducted during normal business hours and with at least 5 business days’ prior written notice, unless urgent circumstances, such as indications of unauthorised access to or use of personal data, require immediate access.
4.4 Any Compliance Review will be conducted during normal business hours and with at least 5 business days’ prior written notice, unless urgent circumstances, such as indications of unauthorised access to or use of personal data, require immediate access.
4.5 you must reimburse us and/or Facebook (as applicable) for all reasonable costs and expenses of the Compliance Review and all re-reviews (if the non-compliance was material);
4.5.1 you must immediately remedy such non-compliance;
4.5.2 upon completion of such remediation, your authorised officer must certify in writing to us and/or Facebook (as applicable) that you have addressed the non-compliance, and that you are now in compliance, and should you become aware of any additional non compliance following your certification you will let us and/or Facebook (as applicable) know immediately but no later than 10 days after the discovery of such non-compliance; and
4.5.3 upon our and/or Facebook’s written request, we and/or Facebook may re-review you in accordance with this section 4 until you are in compliance.
4.6 This section 4 does not limit any rights or remedies we or Facebook have by law, in equity or under the Facebook Online Terms to ensure compliance, or address any non compliance, with the Facebook Online Terms.
5. Service providers
5.1 You must ensure that any Service Providers comply with the Facebook Online Terms and this Schedule (including any data security obligations) as if such Service Providers were in your place, and you are responsible and liable for such Service Providers’ acts and omissions (e.g., each of your Service Providers’ acts and omissions will be deemed your acts or omissions for the purposes of the Facebook Online Terms and this Schedule).
5.2 We and/or Facebook may at any time prohibit the use of any Service Provider in connection with the Chatter Facebook Data and/or the Facebook Chat Services, effective upon notice to you, and you must immediately comply with any such prohibition.
5.3 You must maintain an up-to-date list of each of your Service Providers and the types of Chatter Facebook Data shared with such Service Providers and upon our and/or Facebook’s request you must provide us and/or Facebook (as applicable) with such information.
5.4 You must maintain an up-to-date list of each of your Service Providers and the types of Chatter Facebook Data shared with such Service Providers and upon our and/or Facebook’s request you must provide us and/or Facebook (as applicable) with such information.
6. Relationships with Facebook
6.1 require that you agree to the Facebook Online Terms and/or Facebook Supplemental Terms before accessing or using the Chatter Facebook Data and/or the Facebook Chat Services in conjunction with the Platform Services; and
6.1.1 limit, suspend or terminate your access to or use of the Chatter Facebook Data and/or the Facebook Chat Services in conjunction with the Platform Services until you have agreed to the Facebook Online Terms and, if applicable, the Facebook Supplemental Terms.
6.1.2 limit, suspend or terminate your access to or use of the Chatter Facebook Data and/or the Facebook Chat Services in conjunction with the Platform Services until you have agreed to the Facebook Online Terms and, if applicable, the Facebook Supplemental Terms.
6.2 We may terminate your access to and use of the Chatter Facebook Data and/or the Facebook Chat Services in conjunction with the Platform Services if you no longer have an active account with Facebook or upon written notice from Facebook.
6.3 We may terminate your access to and use of the Chatter Facebook Data and/or the Facebook Chat Services in conjunction with the Platform Services if you no longer have an active account with Facebook or upon written notice from Facebook.
