Begini and Client (as defined in a Statement of Work) are each a “Party” and together, the “Parties”.
Unless the context otherwise requires, the following definitions apply in this Agreement:
“Affiliate” means any business entity that, from time to time, directly or indirectly controls, is controlled by, or is under common control with a Party.
“Agreement” means these Master Terms, as may be amended or supplemented from time to time by the Parties, as evidenced in a writing and duly executed by both the Parties, together with its Annexes.
“API” means Application Programming Interface allowing applications to communicate with one another.
“Applications” means web pages, software applications, code, information, data, and/or Intellectual Property owned or controlled by Client that are used by Client or their Client Users and Customers for interacting with the Services.
“Background IPR” means Intellectual Property Rights which are pre-existing at the Effective Date, or Intellectual Property Rights created after the Effective Date other than as a result of a Deliverable that is exclusive for the Client as explicitly set out in a Statement of Work.
“Begini’s Marks” means and includes all names, marks, brands, logos, designs, trade dress, slogans and other designations Begini uses in connection with its business, services and products.
“Begini Model” means Begini’s generally existing, standard and configured Models used in its SaaS Services from time to time.
“Begini Score” means a specific, generally available credit risk score Model(s) that calculates credit risk.
“Begini Technology” means Begini’s proprietary software and any of Begini’s standard SaaS Services that the Client can access through Begini’s website, and any and all APIs, SDK buttons, widgets, Technical Features, content, applications, programs, code, and specifications provided by Begini in connection with delivery of the Services.
“Bespoke IPR” means Intellectual Property Rights which are developed or created exclusively for the Client in this Agreement, such as an Application or Client Custom Model.
“Content” means data, information, files, software, scripts, images, graphics, audio, video, text, and any other object or information, whether in written or audio form (e.g., voice messages), transmitted to Begini by Client or its Customers through use of the Services.
“Client” means the party defined as such in a Statement of Work to which these master terms apply.
“Client Information” means all information provided to Begini by Client under the terms of this Agreement necessary or desirable for Begini to offer the Services.
“Client Marks” means and includes all names, marks, brands, logos, designs, trade dress, slogans and other designations Client uses in connection with its business, services and products, including its co-branded marks.
“Client Custom Model” means a Model developed or configured by Begini specifically and exclusively for the Client, as defined in a Professional Services Statement of Work. A Client Custom Model includes a model containing only Client or Client-provided elements, or a combination of both Parties’ Feature Library used in combination and configured to produce the Output agreed between the Parties.
“Client User” means the individuals who use the Begini Technology as part of the delivery of Services and/or Contract Deliverables to the Client, including (i) employees and agents of the Client, and (ii) third party consultants, including any systems integrator and its employees and agents, and any other independent contractor.
“Customer” means the individual consumer or person who uses the Begini Technology as part of the delivery of Services to Client.
“Customer Information” means information, including personally identifiable information and data held by third party service providers (e.g. ISPs) provided to Begini by Customers, either directly or by the Client, necessary or desirable for Begini to offer the Services, with the express permission of the Customer.
“Customer Interaction Data” means data collected by Begini that is generated directly by the Customer (e.g., responses to questionnaires and other online forms), and data about the Customer’s interaction with the Begini Technology (e.g., time taken to complete questionnaires, type of mobile device used).
“Deliverables” means the tangible work product delivered by Begini to Client, as agreed in writing in a Professional Services Statement of Work.
“Feature Library” means the library of possible variables/features that the Parties may agree to select for inclusion in a Model.
“Intellectual Property” or “Intellectual Property Rights” collectively means all of the following legal rights, title, or interests in or arising under the laws of the United Kingdom, any state, any other country or international treaty regime, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired, including all renewals thereof: (i) patents, patent applications and patent rights, including any such rights granted upon any reissue, reexamination, division, extension, provisional, continuation or continuation-in-part applications, and equivalent or similar rights anywhere in the world in inventions and discoveries; (ii) rights associated with works of authorship, computer code and literary property rights, including but not limited to copyrights, copyright applications and copyright registrations, database rights and moral rights; (iii) rights relating to know-how or trade secrets, including but not limited to rights in industrial property, Client, vendor and prospect lists and all associated information or databases and other Confidential Information; (iv) industrial designs, industrial models, utility models, certificates of invention and other indicia of invention ownership; (v) trademarks, service marks, logos, trade dress, Internet addresses (URLs), trade names and service names, whether or not registered, and the goodwill associated therewith; (vi) Client Custom Models, (vi) financial and mathematical models, algorithms and formulae applied in the provision of the Services, (vii) any rights analogous to those set forth in this definition, and (viii) any other proprietary rights relating to intangible property anywhere in the world.
“Model” means the unique set of characteristics and numeric weights, including elements of a Feature Library, algorithms, variables and/or equations developed by Begini and delivered using Begini Technology, from which an Output is generated, such as a Begini Score or Traits.
“Output” means any analytic output that is output by a Model when data relating to a Customer is input into a specific Model.
“Performance Data” means Customers’ transaction and repayment data, including but not limited to payment start date, arrears data, repayment amounts, outstanding balances, changes in credit line, or any other data that indicate the Customer’s compliance with or breach of the terms of the products or services that are provided by Client to the Customer that have been enabled by Begini’s Services.
“Professional Services” means those Services, excluding the SaaS Services, provided by Begini to the Client set out in the Professional Services Statement of Work, including but not limited to implementation, initial set up, configuration, software development, maintenance not provided remotely, project management and other services requiring dedicated effort from Begini’s personnel.
“SaaS Services” means the Services specified in a SaaS Statement of Work, consisting of virtual, remote access provided to the Client by Begini to Begini’s standard hosted products using Begini’s Technology.
“Services” means the SaaS Services and/or the Professional Services provided to Client by Begini, as agreed and described in a Statement of Work, that are provided under the terms of this Agreement.
“Service Fee” means the fee, payable by Client for the Services provided by Begini and described in the relevant Statement of Work.
“Statement of Work” means a written document signed by the Parties that describes the SaaS Service and/or the Professional Services, that Begini will provide to the Client subject to this Agreement.
“Technical Features” means web applications, mobile applications, plugins, SDKs, integration points, APIs and/or a Client portal.
“Term” means the period from the Effective Date until any expiration or termination of this Agreement in accordance with Clause 10.
2.1 Content.
Client is and shall be solely responsible for the legality, reliability, integrity, accuracy, quality, creation, editorial content, control, and all other aspects of Content. Client represents and warrants that as delivered, used, and/or displayed, the Content (i) will not infringe, misappropriate or otherwise violate any Intellectual Property Right or other right of any third party, and (ii) will comply with all applicable laws.
2.2 Lawful Purposes.
Client agrees that it will use the Deliverables and access the SaaS Services only for lawful purposes and in accordance with this Agreement. Client shall comply with all applicable laws and government regulations when using or engaging the Services or Outputs, including without limitation, compliance with applicable international export and privacy laws and other applicable laws regarding the transfer and/or transmission of data.
2.3 Unauthorised Use.
Client will use the Deliverables and access the SaaS Services for internal purposes only and will not disclose any Deliverable or Output or permit access to the SaaS Services to any other party except as expressly permitted in this Agreement. The Client will be responsible for, and shall pay any applicable Service Fees associated with, any unauthorised use by Client or Customers of the SaaS Services and Client’s account. If Client becomes aware of such unauthorised use, Begini will block the misused credentials and issue to Client, at Client’s request, replacement API keys and credentials for use with the SaaS Services. Client Users shall be entitled to access the SaaS Services to assist in Client’s internal administration, provided that such Client Users shall at all times comply with the terms of this Agreement.
2.4 No Harmful Code.
Client represents and warrants to Begini that, to its knowledge, no Content shall be knowingly transmitted by Client through the Begini Technology containing any program, routine or device which is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door (collectively, “Harmful Code”).
3.1 Service Fees and Taxes.
All payments under this Agreement shall be made free and clear of any present or future (i) charges and fees relating to such payments (including, without limitation, those levied by the paying and payee bank or other financial institutions); and (ii) any tax levied by any duly constituted taxing authority including, without limitation, any withholding, sales, gross receipts, value-added taxes, tax surcharges, direct or indirect government assessment fees or any other tax imposition on the Service. If a withholding or deduction is required to be made by the Client by law, it shall pay Begini such additional amount as will ensure that Begini receives the same total amount that it would have received if no such withholding or deduction had been required. In no event shall Client be liable to pay any tax levied from Begini’s corporate income relating to the provision of the Services. Begini may invoice Client through one or more of its Affiliates and Client shall be responsible for paying any and all amounts due under this Agreement to such Begini Affiliate from which Client receives an invoice.
3.2 Late Payments.
If any undisputed Service Fee is not paid on the due date for payment, Begini will notify the Client of such delay in payment and shall be entitled to charge a late payment charge of two percent (2%) monthly or twenty-four per cent (24%) (or any other amount that does not exceed the maximum rate permitted under applicable law) annually from the date due until such amount is paid.
3.3 Dispute Notification and Resolution.
If the Client disputes in good faith any portion of Begini’s invoice, the Client may withhold payment for such amounts until the dispute is resolved as stipulated herein, however, it must pay all undisputed amounts of the Service Fee by the due date. Client shall inform Begini of any such good faith dispute within seven (7) days of receipt of the disputed invoice (“Dispute Notification”), clearly setting out the disputed portion of the Service Fee and the reason for disputing such portion. The Parties will exercise reasonable efforts to resolve the dispute within fifteen (15) days from the date of the Dispute Notification. If the Parties are not successful in resolving the dispute, the Parties shall follow the procedures set out at Clause 7.
3.4 Payment.
Client shall pay all undisputed Service Fees net seven (7) calendar days after the date Client receives the invoice. Client shall provide the details of a “Contact Person” to whom all invoices may be addressed, including name, job title, email and telephone number. The Parties may specify appropriate payment details in a Statement of Work. Client’s payments under this Agreement are unconditional, without right of set-off, deduction or other modification. Invoices that remain unpaid for more than 14 days beyond their due-date, and have not been flagged “under dispute” as described in Section 3.3, shall trigger an automatic right for Begini to bar or limit Client’s usage of the Services, to limit the Services access hours to specific hours or specific users, or withhold data results from delivery.
4.1 Background IPR.
Nothing in this Agreement shall affect the Parties’ ownership rights to their Background IPR. All Background IPR and any updates, upgrades or modifications thereof, developed by Begini and its licensors under this Agreement during the Term (including, without limitation, customisation and Intellectual Property originally developed by Begini) shall remain the property of Begini or its licensors. This Agreement does not confer to Client any right of ownership in the Services. Client acknowledges that the Services are proprietary in nature and owned exclusively by Begini or Begini’s licensors. Client shall maintain the confidentiality of any Background IPR of Begini and only use such Background IPR as permitted in this Agreement. To the extent required for Client to gain the benefit of the Services, Begini hereby grants a non-exclusive, non-sub-licensable, non-assignable, limited, revocable right to use the Begini Background IPR in the agreed territory during the Term. To the extent required to allow Begini to perform the Services, Client hereby grants a non-exclusive, non-assignable, limited, revocable right to use the Client Background IPR in the agreed territory during the Term.
4.2 Bespoke IPR.
All Bespoke IPR shall be set out in detail in the applicable Professional Services Statement of Work and shall vest on creation in, and be the absolute property of, the Client. Any such Bespoke IPR shall comply with the agreed specifications but shall otherwise be provided AS IS and without further warranty, in accordance with Clause 8.3. Bespoke IPR may arise in relation to Applications developed specifically for the Client, but no Bespoke IPR shall arise from Begini’s configuration of its Models (that do not contain any elements of the Client’s Feature Library) for the Client. The combination of elements from both Parties’ Feature Libraries shall be treated as Client’s Bespoke IPR. Begini shall not disclose, release or sell to any persons or otherwise deal with the same in any manner whatsoever without the Client’s written consent. Client hereby grants an exclusive, non-sub-licensable, non-assignable, limited, revocable right to use the Bespoke IPR in the agreed territory during the Term to allow Begini to provide the Services.
4.3 Permitted Use.
Begini hereby grants Client permission to use the Deliverables and Output provided that (a) their use is solely for generating reports for Client’s internal business purposes strictly in compliance with the agreed scope of use under this Agreement, (b) no modifications are made to such Deliverables or Output, including combining the Deliverables or Output with other information or creating derivative works from the Deliverables or Output, (c) Client shall not disclose, release or sell the Deliverables or Output to any third party, including to Customers, (d) Client shall not reverse engineer, decompile, disassemble or otherwise replicate or emulate the functionality of the Deliverables, Output or underlying Model(s), and (e) Client shall at all times ensure that its use of the Deliverables and Outputs complies with applicable legal and regulatory requirements. Client may not use Outputs in isolation for credit granting or denial, credit monitoring, account review, insurance underwriting, employment or housing decisions, but may use Outputs as part of its credit decisioning process and in the creation of its own proprietary credit scores/scoring but may not expose Begini as a data source, input or driver of credit granting or denial, credit monitoring, account review, insurance underwriting, employment or housing decisions. The Client shall be granted access to the SaaS Services in accordance with the standard terms of use for each such SaaS Service, as notified to Client from time to time. The foregoing permissions will terminate automatically and without any notice if the Agreement is terminated or Client breaches this Agreement, and Begini may revoke this permission at any time upon notice to Client.
4.4 Begini Marks.
Client acknowledges that Begini is the exclusive owner of all rights related to or arising from Begini’s Marks, and agrees that any use of Begini’s Marks by Client (to the extent permitted hereunder) will be solely for and will inure solely to Begini’s benefit. Except as otherwise expressly stated in this Agreement, nothing in this Agreement will be construed as conferring any license to Begini’s Marks.
4.5 Client Marks.
Begini acknowledges that Client is the exclusive owner of all rights related to or arising from Client Marks, and agrees that any use of Client Marks by Begini (to the extent permitted hereunder) will be solely for and will inure solely to Clients benefit. Except as otherwise expressly stated in this Agreement, nothing in this Agreement will be construed as conferring any license to Client’s Marks.
4.6 Restrictions.
Client shall not: (i) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Begini Technology or Services, modify, adapt, create derivative works based upon, or translate, the Services or any other material or documentation owned and/or provided by Begini or (ii) copy, install or use the Services or Begini Technology on any of its computer systems, servers, or networks without Begini’s prior written consent.
4.7 Use of Client Marks.
Client hereby grants to Begini permission to use the trademarks, trade names and service marks owned and used by Client in the conduct of providing Services, including but not limited to the display of such marks on customised versions of screens and printouts displayed by the Services and for general business purposes such as (i) white papers and case studies; (ii) analyst/press briefings; (iii) press releases and/or joint press releases (in accordance with Clause 13.7); (iv) quotes/testimonials; (v) tradeshows; and (vi) references.
4.8 Right to Provide and License to Customer Information and Client Information.
The Client hereby warrants and represents that it has at all material times the requisite authority and consents to provide the Client Information and, if applicable, the Customer Information. It hereby grants to Begini the perpetual, worldwide, royalty free, irrevocable, non-exclusive right to use the Client Information and Customer Information for the provision, improvement, and development of the Services, statistical, historical and market analysis. Begini will only use the Customer Information in accordance with its Privacy Policies and Terms of Use (set out here https://www.begini.co/legal shall not at any time use the Customer Information to identify individuals, or to use any data gathered about Customers under this Agreement to sell, promote, advertise to or otherwise engage such Customer directly, or to sell or make available such Customer Information to the Client’s competitors. Begini reserves the absolute right and discretion to amend, from time to time, its Privacy Policies and/or Terms of Use. If required by law, the Client shall ensure that it does not provide any Client Information or Customer Information in a personally identifiable format and Begini shall have no liability arising from the receipt of such personally identifiable information or other protected personal data arising from Client’s failure to comply with such legal requirements.
4.9 Begini Technology Security.
Begini shall use commercially reasonable efforts to monitor and protect against unauthorised access to Content while hosted on or within the API. Client acknowledges, however, that the portion of the API through which Content will pass and the servers on which Content will be stored will not be segregated or in a separate physical location from servers on which Begini’s other Clients’ content is or will be transmitted or stored. Begini protects its Clients’ data in a manner consistent with industry best practices.
4.10 Ownership of Output, Customer Information and Customer Interaction Data
All Intellectual Property Rights in the Output shall vest immediately on creation in Begini. Begini hereby grants to Client an exclusive, non-sub-licensable, non-assignable, limited, revocable right to use the Output for internal business purposes in the agreed territory during the Term, subject to the terms of this Agreement and provided Customer has paid all fees related to the Output. The Parties acknowledge that the Output does not contain any personally identifiable information, and Begini may use the Output for the improvement of its Services as permitted under Clause 6.8. The Client and/or the Customer shall own the Intellectual Property Rights in the Customer Information and Begini may use the Customer Information in accordance with the licence granted at Clause 6.8. Begini shall own all Customer Interaction Data collected by Begini or provided by the Customer (directly or via the Client), including all responses to questionnaires, information relating to the Customer and its contacts, if applicable, and all other data gathered through the Customers’ interaction with Begini Technology and the Services, and shall be entitled to commercialise, merge, create derivative works from and otherwise deal with such Customer Information in an unrestricted, legally-compliant manner. To the extent any personally identifiable information may be contained in the Customer Interaction Data, such personally identifiable information shall at all times remain the property of the Customer or Client and shall be licensed to Begini under the terms of Clause 4.8) The Client shall have no proprietary rights in, or right to use, the Customer Interaction Data.
5.1 Terms of this Agreement are Confidential.
Each Party agrees that the terms of this Agreement will be treated as Confidential Information, provided that each Party may disclose the terms of this Agreement: (i) as may be required by law or regulatory authority, if the affected Party notifies the other Party of such requirement prior to such disclosure in sufficient time to enable the other Party to seek a protective order covering such disclosure; (ii) to legal counsel of the Parties, provided such counsel is informed of the obligation to keep such disclosure in confidence with the same degree of care as the Party’s other Confidential Information; (iii) in connection with the requirements of an initial public offering or securities filing provided such Party reasonably seeks confidential treatment of the terms and conditions of this Agreement as appropriate; (iv) to accountants, banks and financing sources and their advisors; and (v) in connection with a merger or acquisition or proposed merger or acquisition or similar.
5.2 Continuing Obligation and Return of Materials.
The confidentiality obligations in this Clause 4 shall remain in effect for three (3) years following termination or expiry of this Agreement, unless the disclosing Party specifically and in writing agrees to release all or part of Confidential Information from the confidentiality obligations imposed herein. On termination of the Agreement, the receiving Party shall promptly return all materials to the disclosing Party (in written, electronic or other form) containing or constituting Confidential Information, including any copies, reproductions or other images, except for a copy that may be kept for record-keeping purposes and as required by law, in which case the confidentiality obligations under this Clause 8 shall remain in effect; and (b) the receiving Party shall not use Confidential Information in any way for any purpose.
5.3 Remedies.
Each Party acknowledges that the failure to perform its duties under this Clause 4 may cause the other Party to suffer irreparable injury for which the injured Party may not have an adequate remedy available at law. Accordingly, the injured Party may seek to obtain injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting a bond or security and without prejudice to such other rights as may be available under this Agreement or under applicable law. Except as otherwise expressly provided in this Agreement, all remedies in this Agreement are cumulative and in addition to (not in lieu of) any other remedies available to a Party at law or in equity.
6.1 Compliance with internal policies.
Begini shall at all times comply with its internal policies and procedures for the handling of Client Information, Customer Information and Customer Interaction Data, as set out in its standard policies at https://www.begini.co/legal, as amended from time to time.
6.2 Processing Personally Identifiable Information.
If Begini processes personally identifiable information in relation to the Client or Customer, it shall do so in compliance with any applicable law and in accordance with industry best practice. The Client shall ensure that it complies with all applicable data protection law requirements when engaging the Customer, and in providing any Client Information or Customer Information to Begini. If required by law, Client shall provide anonymised or aggregated data, or otherwise ensure it does not provide personally identifiable or sensitive data in a format that would place Begini in breach of law or regulation on receipt.
6.3 Back-up.
Begini shall follow its archiving procedures for Client Information and Customer Information as set out in its Back-Up Policy. In the event of any loss or damage to such information, the Client’s sole and exclusive remedy shall be for Begini to use reasonable commercial endeavours to restore the lost or damaged information from the latest back-up of such information maintained by Begini in accordance with the archiving procedure described in its Back-Up Policy. Begini shall not be responsible for any loss, destruction, alteration or disclosure of Client Information or Customer Information caused by any third party (except those third parties sub-contracted by Begini to perform services related to maintenance and back-up).
7.1 Term.
Upon expiration of the Initial Term, a Statement of Work shall renew automatically for additional twelve (12) month periods (each, a “Renewal Term”, together with the Initial Term, the “Term”), unless at least thirty (30) days’ notice of non-renewal is given by either Party to the other prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable.
7.2 Termination.
A Statement of Work may be terminated as follows:
7.3 Effect of Termination.
Upon any termination of a SOW for any reason: (i) All unpaid Service Fees due shall become due and payable at termination, and any Service Fees paid in advance for Services not yet provided at termination shall be reimbursed to the Client, subject to Begini’s right to set off amounts paid in advance to satisfy outstanding Service Fees; (ii) each Party’s respective rights (including but not limited to all licenses granted under this Agreement) and obligations under a SOW shall automatically terminate; (iii) Begini shall (a) immediately cease using all affected Client property and equipment, (b) remove all Client property from the cloud and Begini’s computers and systems; (c) irretrievably destroy all copies of Client Confidential Information and Intellectual Property in Begini’s possession; (iv) Client shall (a) cease all distribution and use of the Begini Technology, Deliverables and Services; (b) expunge the Begini information, including Begini Technology, Begini Marks and Outputs and/or any portion thereof, including any electronic copies thereof, from all of Client’s computer and other electronic systems; and (c) return all hard copies of materials containing such Begini information and/or any portion thereof to Begini.
7.4 Transition.
Immediately upon notice of termination of a SOW for any reason whatsoever, each Party shall provide cooperation to the other Party as reasonably necessary to effect the (a) orderly and efficient transition of the Contract Deliverables and Services to the other Party or a third party to the extent that such third party is not a competitor, and (b) winding down of the Contract Deliverables and Services in the Agreement, as determined mutually by the Parties. During the transition, the terms and conditions of the Agreement (including Client’s payment obligations) shall continue to govern the Parties’ respective rights and obligations to one another.
8.1 Indemnification by Begini.
Begini shall defend Client and its directors, officers and employees from and against all claims, demands, suits or proceedings made or brought against Client, and shall pay or reimburse Client for any and all damages, costs and expenses payable by Client to the party bringing such action to the extent that they are awarded in a final judgment or agreed to in settlement, relating to (a) a result of a claim against Client alleging that the Client’s compliant use of the Services directly infringes the Intellectual Property Rights of a third party, (b) any fraudulent act/omission by Begini, or (c) any breach of Clause 8.1(d) by Begini; provided that Client: (i) gives written notice of the claim promptly to Begini, (ii) gives Begini sole control of the defense and settlement of the claim, (iii) provides to Begini all available information and assistance, and (iv) has not compromised or settled such claim without Begini’s prior written consent. Begini shall have no liability to, and Client shall indemnify Begini with respect to, any third-party or Customer claims relating to any and all information submitted by Customers, including any claims relating to lending or other decisions made by the Client.
8.2 Indemnification by Client.
Client shall defend Begini and it directors, officers and employees from and against all claims, demands, suits or proceedings made or brought against Begini, and shall pay or reimburse Begini for any and all damages, costs and expenses payable by Begini to the party bringing such action to the extent that they are awarded in a final judgment or agreed to in settlement, relating to (a) a claim against Begini alleging that Client’s website, Application or any Content infringes the Intellectual Property Rights of a third party, (b) a claim against Begini alleging that the storage or transmission of any Content by Begini in the course of performing the Services violates any law, rule, regulation or court order, (c) any use of the Services by Client or its Customers that is in violation of this Agreement or any terms of use of which they have been notified, or breach of Client’s representations, warranties, or covenants herein, or (d) any willful and malicious transmission by Client or its Customers of any harmful code to or through the Begini Technology; provided that Begini: (i) gives written notice of the claim promptly to Client, (ii) gives Client sole control of the defense and settlement of the claim, (iii) provides to Client all available information and assistance, and (iv) has not compromised or settled such claim without Client’s prior written consent.
8.3 Limitation Limit.
In no event shall Begini’s liability arising out of or related to this Agreement exceed the sum of Service Fees actually paid by Client during the twelve (12) month period immediately preceding the date the applicable cause of action arose. In no event shall either Party have any liability to the other for any lost profits, loss of data, business interruption, or costs of procurement of substitute goods or services, or for any indirect, special, incidental or consequential damages however caused and under any theory of liability (including negligence) and whether or not such Party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy provided herein.
8.4 Legal Restriction on Limitation.
Notwithstanding the provisions of this Clause 7, neither Party may restrict, exclude or limit any liability that is not permitted at law.
9.1 Begini Warranty.
Begini warrants to Client that (a) it and its Affiliate, if applicable, are duly organised and validly existing under the laws of the country of incorporation and Begini and its Affiliate, if applicable, have full power and authority to execute, deliver and perform all of the obligations hereunder according to the terms of the Agreement, (b) this Agreement is enforceable in accordance with the terms hereof and the persons executing this Agreement on behalf of Begini are duly empowered and authorised to execute this Agreement and perform all its obligations in accordance with the terms herein, (c) it shall perform the Services and its obligations hereunder in a commercially reasonable, professional and workmanlike manner, (d) the Services, Output and the Deliverables provided by Begini to the Client under this Agreement does/will not infringe or violate the Intellectual Property Rights or other right/s of any third party, and (e) there are no legal proceedings instituted against Begini materially impacting the provision of Services hereunder.
9.2 Client Warranty.
Client warrants to Begini that (a) it and its Affiliates, if applicable, are duly organised and validly existing under the laws of the country of incorporation and Client and its Affiliates, if applicable, have full power and authority to execute, deliver and perform all of the obligations hereunder according to the terms of the Agreement, (b) this Agreement is enforceable in accordance with the terms hereof and the persons executing this Agreement on behalf of Client are duly empowered and authorised to execute this Agreement and perform all its obligations in accordance with the terms herein, (c) it shall perform the Services and its obligations hereunder in a commercially reasonable, professional and workmanlike manner, (d) the Client under this Agreement does/will not infringe or violate the Intellectual Property Rights or other right/s of any third party, and (e) there are no legal proceedings instituted against Client materially impacting the performance of its obligations hereunder.
9.3 DISCLAIMER.
THE SERVICES, OUTPUT, DELIVERABLES, BEGINI TECHNOLOGY AND BESPOKE IPR ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS AND BEGINI DOES NOT WARRANT THAT THEY SHALL MEET CLIENT’S BUSINESS REQUIREMENTS, THAT ANY OUTPUT WILL GUARANTEE CUSTOMER PERFORMANCE, OR THAT THE USE THEREOF SHALL BE UNINTERRUPTED OR ERROR-FREE. BEGINI MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THEM OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CLIENT UNDER THIS AGREEMENT, UNLESS SPECIFICALLY AGREED IN A STATEMENT OF WORK. BEGINI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.1 Internal Dispute Resolution Procedure.
A Party shall not commence arbitration proceedings in respect of a dispute arising out of this Agreement unless it has complied with this Clause 10.1. A Party claiming that a dispute has arisen in relation to this Agreement shall notify the other party to the dispute giving details of the dispute (a “Dispute Notice”). Within 5 days of receipt of a Dispute Notice, the Parties shall convene a meeting between their respective authorised representatives, and the Parties shall use reasonable endeavours to resolve the dispute at that meeting. If the Parties fail to resolve the dispute at the initial meeting, then the Parties shall within ten (10) business days following the date of receipt of the Dispute Notice convene a meeting between senior stakeholders of each Party, and the Parties shall use reasonable endeavours to resolve the dispute at that meeting in good faith. If any dispute under this Agreement remains unresolved for fifteen (15) or more business days from the date of receipt of the Dispute Notice, the dispute resolution process under this Clause 10.1 is at an end, and either Party will be free to commence arbitration proceedings in respect of that dispute in accordance with Clause 10.2.
10.2 Arbitration.
Any dispute or claim must be referred to arbitration following the exhaustion of the internal dispute resolution procedure at Clause 7.1, including issues about this Agreement or its subject matter or formation, whether in tort, contract, under statute, or otherwise, including any question regarding its existence, validity, interpretation, breach, or termination, and including any non-contractual claim, will be finally and exclusively resolved by arbitration under the arbitration rules of the International Chamber of Commerce (“Rules”) in London, England. The arbitral tribunal, to be appointed in accordance with the Rules, will consist of one (1) arbitrator. However, if either Party asserts the amount in controversy exceeds USD $1,000,000 (one million US dollars), then the tribunal will consist of three (3) arbitrators. The language of the arbitration will be English. Any award rendered by the arbitral tribunal will be made in writing and will be final and binding on the Parties. The Parties will carry out the award without delay. Judgment upon any award or order may be entered in any court having jurisdiction. All aspects of the arbitration will be considered confidential. The Parties agree to submit to arbitration under this Clause 10.2 and each Party waives its right to institute any action, litigation or proceeding in the court system.
11.1 Assignment.
Except as set out below, neither Party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, that either Party may assign or otherwise transfer its interests in this Agreement without such consent in connection with a merger, corporate reorganisation, transfer or sale of all or substantially all of its assets. Begini may assign, sub-contract or delegate the performance of Services to Affiliates, but where performance or non-performance of any such Affiliate remains the obligation of Begini. Any attempted assignment in violation of this Clause shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.2 Survival.
Clauses 4, 5, 6, 7, 8, 9, 10, 11, any defined terms, and any payment obligations incurred prior to the expiration or termination of this Agreement shall survive the termination or expiration of this Agreement for any reason.
11.3 Waiver and Amendment.
No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both the Parties. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
11.4 Audit.
Subject to applicable law, the Parties shall maintain a complete audit trail and maintain records and supporting documentation of all financial and non-financial transactions relating to this Agreement for a period of no less than five (5) years after termination or expiry of this Agreement. Each Party shall have the right, on not less than fifteen (15) business days’ notice, to inspect the records relating strictly to this Agreement only to verify that such records are accurate and complete. The Parties shall not be permitted to conduct an audit more frequently than once in any twelve (12) month period, and shall ensure any such audit does not cause undue business interruption. The Parties shall bear their own costs for such audits, and any discrepancies found that require a balancing payment from one Party to the other shall be made promptly following conclusion of the audit. Any external auditors conducting an audit shall be required to enter into a confidentiality agreement containing terms no less stringent than contained in this Agreement. The Parties may agree enhanced monitoring of the Client’s use of Client Custom Models, details of which shall be set out in a Statement of Work.
11.5 Publicity.
Neither Party shall make a public statement relating to the entry into this Agreement without the prior consent of the other Party in each instance, such consent not to be unreasonably withheld, conditioned or delayed.
11.6 Governing Law.
This Agreement will be governed by and construed and enforced in accordance with the laws of England, excluding its principles of conflicts of law.
11.7 Relationship of Parties.
This Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between the Parties for any purpose. Neither Party has the authority (nor shall it hold itself out as having authority) to bind the other Party, and neither Party shall make any agreements or representations on the other’s behalf without its prior written consent.
11.8 Third Party Rights.
This Agreement does not confer any rights on any person or party (other than the Parties to this Agreement, signatories to a Statement of Work and, where applicable, their successors and permitted assigns).
11.9 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of Begini, the Client and their respective legal successors.
11.10 Acceptance.
Any action of the Client in availing any Services from Begini shall be deemed to convey Client’s absolute and unconditional acceptance to this Agreement. By performing any of the said actions, the Client is deemed to have provided its consent to be bound by this Agreement.
11.11 Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain unaltered in full force and effect.
11.12 Force Majeure.
For a period of up to thirty (30) days after a Force Majeure Event, neither Party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including, but not limited to, orders or other governmental directives, disease epidemics that restrict the movement of citizens, goods, services, livestock, agricultural products, etc. on a national or global scale, acts of God, acts of the common enemy, third-party mechanical breakdowns, fire explosions, fiber optic cable interruptions, interruption or failure of telecommunication or digital transmission links, internet failures or delays which cause a delay or failure of performance (each, a “Force Majeure Event”); provided, however, that lack of funds shall not be deemed to be a reason beyond a Party’s reasonable control. The Parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a delay in the performance of this Agreement, and the non-performing Party shall use its best efforts to resume performance following such Force Majeure Event.
11.13 Headings and References.
The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
11.14 Authority; Counterparts.
Each Party’s signature is by an authorised representative of such as Party and constitutes such Party’s acceptance of this Agreement and its agreement to be bound hereby. This Agreement may be executed and delivered by the Parties in counterparts (each of which will be considered for all purposes an original) and by e-mail transmission in PDF format, and when a counterpart has been executed and delivered by each of the Parties, by e-mail in PDF format or otherwise, all such counterparts will together constitute one (1) agreement.
11.15 Complete Agreement; Amendment.
Each Party acknowledges that it has read this Agreement, other documents referred to herein and any Statements of Work, understands them, and agrees to be bound by their terms, and further agrees that they are the complete and exclusive statement of the agreement between the Parties which supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the Parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both Parties.
11.16 Notices.
All notices, demands or consents required or permitted under this Agreement shall be delivered via email to the addresses set out on the signature page(s) below. Notice shall be considered delivered and effective on the first business day in the location of receipt following transmission.
11.17 Inconsistency.
In the event of any inconsistency between the provisions of this Agreement and the provisions of any Statement of Work, the Statement of Work shall prevail to the extent of such consistency.
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