Please read these Terms of Service carefully before accessing or using the Gendo Platform (as defined below) as they set out the terms and conditions which apply to your use of the Gendo Platform and the Documentation (as defined below).
The Gendo Platform is supplied to you by Gendo (as defined below) subject to your acceptance of and compliance with: (i) these Terms of Service; and (ii) Gendo’s Privacy Policy at https://www.gendo.ai/privacy-policy. By subscribing to the Gendo Platform, or accessing and/or using the Gendo Platform, you agree to these Terms of Service and the Gendo Privacy Policy which are automatically binding on you.
When you subscribe to the Gendo Platform, you will select your Plan (as defined below) and will be entitled to access and use the Gendo Platform in line with the benefits and limitations of your Plan as set out in the Plan Scope (as defined below).
The rights granted to you are limited to using the Gendo Platform and the Documentation to create computer generated images to support architectural designs (“Permitted Use”).
Where you subscribe to, access and/or use the Gendo Platform in the course of your employment or engagement with a company, corporation or other legal entity that creates architectural designs for itself or its clients (“Entity”),
you automatically bind that Entity to these Terms of Service so that references to “you” and “your” in these Terms of Service means both you personally and that Entity. You warrant and represent to Gendo that you have the authority to bind that Entity to these Terms of Service. That Entity is, without prejudice to your own obligations, responsible for your acts and omissions and for ensuring you comply with these Terms of Service.
The Gendo Platform has been designed for use by businesses rather than consumers. You warrant and represent to Gendo that you are acting in the course of your trade, business or profession and not as a consumer.
Gendo reserves the right to update these Terms of Service at any time by posting the updated set on the Gendo Platform.
If you continue to use the Gendo Platform beyond the first Billing Date (as defined below) after the updated Terms of Service are posted on the Gendo Platform, you will be deemed to have accepted the updated Terms of Service.
1. Interpretation
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
“1-off Credits”
the Credits you purchase in addition to the Plan Credits.
“Agreement”
the Order and these Terms of Service.
“Billing Date”
the date on which you are due to pay Gendo the Fees for the Plan.
“Business Day”
a day other than a Saturday, Sunday or bank or public holiday in England.
“Confidential Information”
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.5 or clause 10.6 or would be understood as confidential by a reasonable businessperson.
“Credit”
the credits allocated to you which are consumed by creating computer generated images within the Gendo Platform.
“Customisations”
means any customisations or modifications to the Gendo Platform set out in the Order.
“Documentation”
any documentation related to the Gendo Platform, including the user instructions.
“Educational Plan”
the educational plan as described in the Plan Scope.
“Effective Date”
the date set out in the Order.
“Enterprise Plan”
the enterprise plan agreed by Gendo in writing.
“Fees”
the fees payable under clause 8 (as updated by Gendo from time to time).
“Free Plan”
the free plan as described in the Plan Scope.
“Gendo”
Gendo Technology Ltd, a company incorporated in England and Wales with company number 14526185, whose registered office is at Jump Accounting, We Work, 33, Queen Street, London, United Kingdom, EC4R 1AP.
“Gendo Platform”
the artificial intelligence platform operated by Gendo which allows users to create computer generated images (including all Updates made generally commercially available by Gendo from time to time).
“Individual Plan”
the individual plan as described in the Plan Scope.
“Intellectual Property Rights”
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Model”
any artificial intelligence model or product developed, owned and/or operated by Gendo.
“Normal Business Hours”
9am to 6pm local time, each Business Day.
“Order”
the order form or similar document completed by you to subscribe to the Plan.
“Output”
the outputs generated and delivered to you by the Gendo Platform as a result of the Prompt(s).
“Permitted Use”
as defined above.
“Personal Data”
means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Plan”
the plan to which you subscribe for the Gendo Platform, being the Free Plan, the Individual Plan, the Professional Plan,
the Team Plan or the Enterprise Plan.
“Plan Credits”
the Credits allocated to you as part of the Plan.
“Plan Scope”
Gendo’s list of the features and benefits of the Plan (as updated by Gendo from time to time).
“Professional Plan”
the professional plan as described in the Plan Scope.
“Prompt”
the briefs, designs, images, sketches, models, photographs and other prompts entered into the Gendo Platform by you.
“Services”
any services provided by Gendo in relation to the Gendo Platform, including but not limited to support services.
“Team”
the group of individuals assigned to your team within the Gendo Platform as part of the Team Plan.
“Team Plan”
the team plan as described in the Plan Scope.
“Training Data”
the data, information and materials used to train the Gendo Platform and/or Gendo’s other Models.
“Updates”
any updates or upgrades to the Gendo Platform released by (or on behalf of) Gendo or its licensors from time to time.
“Virus”
any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability”
a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability.
“you”, “your”
the person who subscribes to the Plan as identified on the Order.
1.2 The headings in this Agreement shall not affect its interpretation.
1.3 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that legislation or legislative provision.
1.4 References to clauses are to the clauses of this Agreement.
1.5 In the event of any conflict between the Order and these Terms of Service, theOrder shall prevail.
2. Gendo Platform Licence
2.1 Subject to payment of the Fees and subject to clauses 2.2 and 2.3, Gendo grants you a non-exclusive, non-transferable, worldwide licence, without the right to grant sublicences, to use the Gendo Platform and the Documentation during the term of this Agreement.
2.2 The licence granted in clause 2.1 is limited to use of the Gendo Platform and Documentation for the Permitted Use and within the Plan Scope.
2.3 Gendo reserves the right to refuse to supply the Gendo Platform and Documentation and/or to terminate this Agreement on written notice to you if you are located in a country or territory into which Gendo does not supply the Gendo Platform, including countries or territories that are subject to sanctions restrictions.
2.4 You undertake that:
2.4.1 you shall keep a secure password for your use of the Gendo Platform, and that you shall keep your account login and password confidential. If you become aware that your account login or password is known to any third parties or has been compromised, you shall notify Gendo without delay so it can be deactivated; and
2.4.2 you shall permit Gendo and/or Gendo’s designated auditor to audit your use of the Gendo Platform in order to establish your compliance with this Agreement and you shall co-operate with Gendo and/or Gendo’s designated auditor inrespect of such audits.
2.5 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Gendo Platform that is unlawful, infringing or offensive.
2.6 You shall not:
2.6.1 except as may be allowed by applicable law which is incapable ofexclusion by agreement between the parties and except to the extentexpressly permitted under this Agreement:
(a) attempt to copy, modify, develop, duplicate, create derivative works from, frame, mirror, republish, download,
display, transmit, or distribute all or any portion of the Gendo Platform and/orDocumentation (as applicable) in any form or media or by any means;
(b) attempt to de-compile, reverse compile, disassemble, scan, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Gendo Platform or attempt to discover any source code or underlying ideas or algorithms of the Gendo Platform;
(c) perform penetration tests on the Gendo Platform without Gendo’s written consent;
2.6.2 access, view or use the Gendo Platform and/or Documentation in order to build a product or service which competes with the Gendo Platform;
2.6.3 use the Gendo Platform and/or Documentation to provide services to third parties (except the Outputs may be shared with third parties as permitted by the terms of this Agreement);
2.6.4 use the Gendo Platform or the Outputs to deceive, defraud or mislead anyone or for any unauthorised or unlawful purposes;
2.6.5 enter any Prompts into the Gendo Platform which Gendo determines are unlawful, offensive, disrespectful or inappropriate or use the Gendo Platform to create any Outputs which Gendo determines are unlawful, offensive, disrespectful or inappropriate;
2.6.6 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Gendo Platform and/or Documentation available to any third party;
2.6.7 attempt to obtain, or assist third parties in obtaining, access to the Gendo Platform and/or Documentation, other than as permitted under this clause 2;
2.6.8 circumvent or otherwise interfere with the authentication or security measures of the Gendo Platform or remove, obscure or alter any copyright notice, trade marks, logos or trade names or any other notices or identifications that appear on the Gendo Platform orDocumentation;
2.6.9 interfere with or disrupt the integrity or performance of the Gendo Platform or include any part of the Gendo Platform in any other service or item;
2.6.10 list or otherwise display or copy any code for the Gendo Platform;
2.6.11 allow the transfer, transmission, export or re-export of the Gendo Platform or Documentation;
2.6.12 introduce or permit the introduction of, any Virus or Vulnerability into the Gendo Platform or Gendo’s network and information systems; or
2.6.13 use automated tools to access, use or generate Outputs from the Gendo Platform.
2.7 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Gendo Platform and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Gendo.
2.8 You shall comply with the licence terms applicable to any third party or open-source software used in the Gendo Platform where you have been informed of such licence terms by Gendo.
2.9 Gendo may deactivate your account login and password where Gendo deems it reasonably necessary, including for breaches of this Agreement.
2.10 The restrictions in this clause 2 apply to each part of the Gendo Platform and to the Gendo Platform as a whole.
2.11 The rights provided under this clause 2 are granted to you only and shall not be assigned, transferred, novated or sublicensed to any other person without Gendo’s written consent.
2.12 If you access and/or use the Gendo Platform and/or Documentation outside the rights granted to you in this Agreement, then without prejudice to Gendo’s other rights and remedies, Gendo may charge you, and you shall pay Gendo, for such additional use at Gendo’s prevailing rates.
2.13 You may promote and/or demonstrate the Gendo Platform to third parties withGendo’s written consent. Where Gendo gives you its written consent:
2.13.1 you shall comply with Gendo’s instructions in respect of the promotion and/or demonstration of the Gendo Platform;
2.13.2 you shall ensure that all statements you make about the Gendo Platform as part of the promotion and/or demonstration are accurate and complete;
2.13.3 you shall ensure the Gendo Platform, and the Outputs generated as part of the promotion and/or demonstration, are kept confidential and not used for any purpose, except for the promotion and/or demonstration of the Gendo Platform;
2.13.4 all Intellectual Property Rights in the Gendo Platform, and in theOutputs generated as part of the promotion and/or demonstration, belong to Gendo; and
2.13.5 you shall cease all promotions and demonstrations of the Gendo Platform immediately on Gendo’s written request.
3. Gendo Platform and Services
3.1 Gendo shall, during the term of this Agreement, make the Gendo Platform, the Services and the Documentation available to you on and subject to the terms of this Agreement.
3.2 Gendo shall use commercially reasonable endeavours to make the Gendo Platform available 24 hours a day, seven (7) days a week, except for planned maintenance which shall be carried out outside of Normal Business Hours where practicable and unscheduled emergency maintenance.
3.3 Gendo will, as part of the Services:
3.3.1 provide you with Gendo’s customer support services during NormalBusiness Hours; and
3.3.2 implement the Updates as Gendo makes them generally commercially available from time to time.
3.4 You acknowledge that your use of the Gendo Platform is limited to the features and benefits in the Plan Scope for your Plan, and you have no right to access or use the Gendo Platform beyond such Plan Scope.
4. Credits
4.1 When you subscribe to your Plan, you will be awarded the number of PlanCredits as set out in the Plan Scope.
4.2 You can also purchase 1-off Credits from Gendo at any time at Gendo’s prevailing rates, which will be added to your Credit balance.
4.3 Each Prompt:
4.3.1 will cost you the number of Credits set out in the Plan Scope, which are deducted from your Credit balance; and
4.3.2 will create the number of computer-generated images set out in thePlan Scope within the Gendo Platform, although if the Gendo Platform does not create the required number of computer-generated images for any reason, including due to error or malfunction, then as your exclusive right and remedy, the Credits will not be deducted from your Credit balance.
4.4 On each Billing Date:
4.4.1 your Plan Credits will be topped back up to the number awarded to you under clause 4.1;
4.4.2 any unused Plan Credits are not carried forward; and
4.4.3 any unused 1-off Credits you purchased are carried forward.
4.5 Subject to clause 4.6, the Credits are for your own use, and you shall not make them available to any third party.
4.6 If you have subscribed to the Team Plan, you may share your Credits with the other members of your Team. If you are part of a Team, you can use the Credits that have been assigned to the Team.
4.7 As your Credits are used, they are deducted from your unused Plan Credits balance first, and once all the Plan Credits have been used, from your unused 1-off Credits balance.
4.8 Once you have used all your Credits, you will not be able to generate any more Outputs until you are awarded more Credits on the next Billing Date or you purchase more 1-off Credits.
4.9 You are only entitled to subscribe to the Free Plan once. If you try to sign up more than once, including by using a different email address, then without prejudice to Gendo’s other rights and remedies, Gendo can treat you as signed up to the Individual Plan and you must pay Gendo the applicable Fees for the Individual Plan on demand and/or Gendo can terminate this Agreement with immediate effect by giving you written notice.
5. Data protection
5.1 Gendo processes Personal Data in accordance with its privacy notice, which is available at https://www.gendo.ai/privacy-policy.
5.2 You shall not:
5.2.1 include any Personal Data in any Prompt; or
5.2.2 use any Prompt which a reasonable person in your position would know is likely to result in the Gendo Platform generating Personal Data as part of any Output.
6. Gendo’s obligations
6.1 You acknowledge that given the nature of the Gendo Platform and the fact it is based on artificial intelligence, which is new technology, the Gendo Platform and the Outputs are provided on an “as is”, “as available” basis, without warranty of any kind, whether express or implied, and that your use of the Gendo Platform and the Outputs are at your sole risk.
6.2 Gendo:
6.2.1 does not warrant that the Gendo Platform or the Outputs will meet your specific requirements;
6.2.2 does not warrant that your use of the Gendo Platform will be uninterrupted, timely or error-free;
6.2.3 does not warrant that any errors in the Gendo Platform will be corrected within specific timeframes; and
6.2.4 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Gendo Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 Whilst Gendo takes appropriate steps for an organisation of its size and resources to minimise the risk of the Gendo Platform containing Vulnerabilities and Viruses, Gendo cannot guarantee the same, and you acknowledge your responsibility to protect your hardware, software and network (which includes implementing appropriate firewalls and anti-virus software).
6.4 It is your sole responsibility to maintain backups of your Prompts and Outputs.In the event of any damage to your Prompts and/or Outputs or the destruction of your Prompts and/or Outputs, it is your sole responsibility to restore them from the latest back-up maintained by you in accordance with your archiving procedure. Gendo shall have no responsibility for any damage to your Prompts and/or Outputs and/or for the destruction of your Prompts and/or Outputs.
6.5 Gendo reserves the right to change the Plan Scope and/or Fees at any time by giving you at least 60 days’ written notice. If you do not want to accept the updated Plan Scope and/or Fees, you can terminate this Agreement under clause 13.2, otherwise you are deemed to have accepted the updated PlanScope and/or Fees and they are binding on you from the expiry of Gendo’s notice.
6.6 Gendo is always looking to improve the Gendo Platform which means it, and theOutputs it generates, are subject to change from time to time.
7. Your obligations
7.1 You shall:
7.1.1 provide Gendo with:
(a) all necessary co-operation in relation to this Agreement; and (b) access to such information as may be reasonably required by Gendo to perform this Agreement;
7.1.2 without affecting your other obligations under this Agreement, complywith all applicable laws, including all applicable trade control and sanctions laws, relevant to your use of the Gendo Platform, and not cause Gendo or its licensors to breach such laws;
7.1.3 carry out your responsibilities under this Agreement in a timely and efficient manner. In the event of any delays caused by you, Gendo may adjust any agreed timetable or delivery schedule as reasonably necessary;
7.1.4 ensure that your network and systems comply with the relevant specifications provided by Gendo from time to time;
and
7.1.5 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to the Gendo Platform, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your systems, network connections or telecommunications links or caused by the internet.
7.2 You acknowledge that Gendo and its licensors may collect metrics, analytics,metadata and statistics (which, for the avoidance of doubt, excludes Promptsand Outputs) related to your use of the Gendo Platform:
7.2.1 to provide the Gendo Platform and Services to you; and
7.2.2 to analyse, maintain and improve the Gendo Platform and Services, including for security purposes.
7.3 You shall not use the Gendo Platform for any purpose except the Permitted Use and within the Plan Scope.
7.4 Where the Output is created under the Free Plan or the Individual Plan, you shall ensure Gendo is credited as the source of the Output on all uses of the Output and Gendo reserves the right to apply its logos, stamps and/or watermarks to the Output.
8. Charges and payment
8.1 You shall pay the Fees to Gendo in accordance with this Agreement.
8.2 Subject to clause 8.3, you shall pay Gendo the Fees for the Plan monthly in advance and the Fees for the 1-off Credits when they are purchased.
8.3 If Gendo has agreed payment terms with you in writing, Gendo shall invoice you for the Fees for the Plan monthly in advance and for the Fees for the 1-offCredits when they are purchased.
8.4 You shall pay Gendo’s invoices within thirty (30) days of the invoice date.
8.5 If Gendo has not received payment on time, and without prejudice to any otherrights and remedies of Gendo:
8.5.1 Gendo may, without liability to you, disable your password, account and access to all or part of the Gendo Platform and Gendo shall be under no obligation to provide any or all of the Gendo Platform or Services while the invoice(s) concerned remain unpaid; and
8.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.6 All amounts stated or referred to in this Agreement:
8.6.1 shall be payable in the currency nominated by Gendo; and
8.6.2 are exclusive of sales and value added tax, which shall be added to the amounts at the appropriate rate.
8.7 You can upgrade your Plan at any time and Gendo will adjust the Fees with effect from the date of the upgrade.
8.8 You can downgrade your Plan at any time, provided the downgrade takes effect on a future Billing Date, and Gendo will adjust the Fees with effect from the applicable Billing Date.
9. Proprietary rights
9.1 You acknowledge and agree that Gendo and/or its licensors own all IntellectualProperty Rights in the Gendo Platform, the Training Data, the Services and theDocumentation. Except as expressly stated herein, this Agreement does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered),or any other rights or licences in respect of the Gendo Platform, the Training Data, the Services or the Documentation.
9.2 Where Gendo agrees to carry out Customisations, the Intellectual Property Rights in the Customisations shall belong to Gendo and are licensed to you aspart of the Gendo Platform under this Agreement.
9.3 You and/or your licensors shall own all Intellectual Property Rights in the Prompts you input into the Gendo Platform. You grant Gendo the non-exclusive, worldwide, non-transferrable licence, together with the right to grant sublicences, to:
9.3.1 where you enter the Prompts into the Gendo Platform under the Free Plan, Educational Plan or the Individual Plan:
(a) store the Prompts in the Gendo Platform on a perpetual and irrevocable basis;
(b) use the Prompts to create the Outputs during the term of thisAgreement;
(c) use the Prompts as part of the Training Data to train the Gendo Platform and Gendo’s other Models on a perpetual and irrevocable basis;
(d) use the Prompts in Gendo’s marketing materials to promote Gendo’s products and/or services on a perpetual and irrevocable basis; and
(e) use the Prompts for Gendo’s other commercial purposes on a perpetual and irrevocable basis;
9.3.2 where you enter the Prompts into the Gendo Platform under the Professional Plan or the Team Plan:
(a) store the Prompts in the Gendo Platform on a perpetual and irrevocable basis; and
(b) use the Prompts to create the Outputs during the term of this Agreement.
9.4 You shall not:
9.4.1 include any third party’s Intellectual Property Rights in any Prompt without the third party’s permission; or
9.4.2 use any Prompt which a reasonable person in your position would know is likely to result in the Gendo Platform generating a third party’sIntellectual Property Rights as part of an Output without the third party’s permission.
9.5 Gendo and/or its licensors shall own all Intellectual Property Rights in theOutputs.
9.6 Where the Outputs are created under the Free Plan, Educational Plan or the Individual Plan, Gendo grants you the non-exclusive, worldwide, perpetual, irrevocable licence to use the Outputs for your own internal or educational purposes only, which means you cannot share the Outputs with third parties.
9.7 Where the Outputs are created under the Professional Plan or the Team Plan, Gendo grants you the non-exclusive, worldwide, perpetual, irrevocable, transferrable licence, together with the right to grant sublicences, to use the Outputs for your own internal purposes and for external purposes, which means you can share the Outputs with third parties.
9.8 Subject to clause 9.9, where you enter the Prompts into the Gendo Platform under the Professional Plan or the Team Plan, Gendo confirms it will not use thePrompts or the resulting Outputs as part of the Training Data, in its marketing materials or for any other purpose except to store them within the Gendo Platform and to perform this Agreement for your benefit.
9.9 You acknowledge that because the Gendo Platform is based on artificial intelligence, which is new technology, there is a remote possibility the Gendo Platform will create the same outputs for others independent of your Prompts and Outputs.
9.10 You acknowledge you have no rights in or to the software in the Gendo Platform.
10. Confidentiality
10.1 Each party may be given access to Confidential Information from the otherparty. A party’s Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 was in the receiving party’s lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to clauses 10.3 and 10.4, each party shall hold the other party’sConfidential Information in confidence and not make the other party’s Confidential Information available to any third party or use the other party’s Confidential Information for any purpose other than for the purposes of this Agreement.
10.3 Gendo may disclose your Confidential Information to its officers, employees, contractors or agents who need to
receive it for the purposes of this Agreement (“Representatives”). Gendo shall ensure its Representatives comply with this clause 10.
10.4 Each party may disclose the other party’s Confidential Information:
10.4.1 to the extent it is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure; or
10.4.2 to its professional advisers and the courts in respect of legal proceedings, and each party shall ensure its professional advisers comply with this clause 10.
10.5 You acknowledge that the Gendo Platform, the Documentation and the results of any performance tests on the Gendo Platform, are part of Gendo’s ConfidentialInformation.
10.6 Both parties agree that:
10.6.1 where you enter the Prompts into the Gendo Platform under the Free Plan, Educational Plan or the Individual Plan, the Prompts and the resulting Outputs are not your Confidential Information; and
10.6.2 where you enter the Prompts into the Gendo Platform under theProfessional Plan or the Team Plan, the Prompts and the resulting Outputs are your Confidential Information.
10.7 You shall not:
10.7.1 include any third party’s confidential information in any Prompt in breach of any confidentiality obligations or undertakings owed to the third party; or
10.7.2 use any Prompt which a reasonable person in your position would know is likely to result in the Gendo Platform generating a third party’s confidential information as part of an Output without the third party’s permission.
10.8 Please note that where you enter the Prompts into the Gendo Platform under the Free Plan, Educational Plan or the Individual Plan, you can only use the Outputs for your own internal purposes, which means you cannot share the Outputs with third parties, as set out in clause 9.6.
10.9 If you give your written consent, Gendo may use your business name and logo(s) on Gendo’s website and marketing materials to highlight how Gendo and you are working together including in respect of a case study which shall be approved by both parties in writing. Save as set out in this clause 10.8, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11. Indemnity
11.1 You shall indemnify Gendo against all claims, actions, proceedings, losses, damages, expenses and costs (including reasonable legal fees) arising out of orin connection with any allegation or claim by any third party that:
11.1.1 Personal Data has been entered into, or created by, the Gendo Platform;
11.1.2 third-party confidential information has been entered into, or created by, the Gendo Platform; or
11.1.3 third-party Intellectual Property Rights have been entered into, or created by, the Gendo Platform, in each case as part of your Prompts or as part of the Outputs created by your Prompts.
11.2 Gendo shall:
11.2.1 give you prompt notice of any claim under clause 11.1 of which it is aware;
11.2.2 provide reasonable co-operation to you in the defence and settlement of such claim, at your expense; and
11.2.3 give you sole authority to defend or settle the claim, provided you do so promptly and using legal advisors reasonably satisfactory to Gendo.
11.3 Gendo shall indemnify you against any claim that your use of the Gendo Platform or Documentation in accordance with this Agreement infringes any third-party patent, copyright or trade mark, and shall indemnify you for any costs, legal fees and damages awarded against you pursuant to a non-appealable judgment by a court of competent jurisdiction or in settlement of such claims, provided that:
11.3.1 Gendo is given prompt written notice (in no event to exceed three (3) days) of any such claim;
11.3.2 You do not make any admission, or otherwise attempt to compromise or settle the claim and provide reasonable co-operation to Gendo in the defence and settlement of such claim, at Gendo’s reasonable expense; and
11.3.3 Gendo is given sole authority to defend or settle the claim.
11.4 In the defence or settlement of any claim, Gendo may procure the right for you to continue using the Gendo Platform and/or Documentation, replace or modify the Gendo Platform and/or Documentation so that it becomes non-infringing or, if such remedies are not, in Gendo’s reasonable opinion commercially viable, terminate this Agreement on written notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
11.5 In no event shall Gendo, its employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
11.5.1 a modification of the Gendo Platform and/or Documentation by anyone other than Gendo;
11.5.2 your use of the Gendo Platform and/or Documentation in a manner contrary to the instructions given to you by or on behalf of Gendo;
11.5.3 your use of any non-Gendo products, software, services or data; or
11.5.4 your use of the Gendo Platform and/or Documentation after notice of the alleged or actual infringement from Gendo or any appropriate authority.
11.6 You acknowledge that the Outputs are created by the Gendo Platform as a result of your Prompts and therefore Gendo gives no warranties, undertakings or assurances with regard to any Outputs.
11.7 Without prejudice to Gendo’s other rights and remedies, Gendo reserves the right to remove or disable access to any Prompt or Output which Gendo believes infringes any third-party rights.
11.8 The foregoing and clause 12.4.2 state your sole and exclusive rights and remedies, and Gendo’s entire obligations and liability, for infringement of any patent, copyright or trade mark.
12. Limitation of liability
12.1 Except as expressly provided in this Agreement:
12.1.1 you assume sole responsibility for results obtained from your use of the Gendo Platform, Services and the Documentation, and for conclusions drawn from such use. Gendo makes no guarantee or warranty that your use of the Gendo Platform, Services and/or Documentation will result in an increase in your revenue or engagements with your clients;
12.1.2 Gendo shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Gendo by you in connection with the Gendo Platform, or any actions taken by Gendo at your direction;
12.1.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
12.1.4 the Gendo Platform, the Outputs and the Documentation are provided to you on an “as is” basis.
12.2 Whilst Gendo confirms the Gendo Platform will substantially conform to the Documentation, Gendo shall not be liablefor the Outputs generated from the Gendo Platform or the decisions you make as a result of using the Gendo Platform. Without prejudice to the foregoing, you acknowledge that:
12.2.1 the Outputs generated by the Gendo Platform are entirely dependent on the Prompts entered into the Gendo Platform which are your sole responsibility;
12.2.2 Gendo cannot guarantee that the Gendo Platform will generate results which meet your requirements; and
12.2.3 the Outputs generated by the Gendo Platform should not be used as the sole basis for making business decisions. You must perform your own appraisal of your products, services and customer engagement using various resources to make sure your requirements are fulfilled.
12.3 Nothing in this Agreement limits or excludes the liability of Gendo:
12.3.1 for death or personal injury caused by its negligence;
12.3.2 for fraud or fraudulent misrepresentation; or
12.3.3 for any other liability that cannot be lawfully limited or excluded.
12.4 Subject to clause 12.3:
12.4.1 Gendo shall not be liable whether in tort (including for negligence orbreach of statutory duty), contract, indemnity, misrepresentation,restitution or otherwise:
(a) for any loss of profits, loss of business, cost of procurement of substitute products or services, depletion of goodwill and/or similar losses or pure economic loss; or
(b) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
12.4.2 Gendo’s total aggregate liability for all claims, whether in tort (including negligence or breach of statutory duty), contract, indemnity, misrepresentation, restitution or otherwise, arising under or in connection with the performance or contemplated performance of this Agreement, shall be limited to the amount of the Fees paid by you to Gendo under the relevant Order during the 12 months preceding the date the first claim is made.
12.5 The parties acknowledge and agree that as the Free Plan is provided to you without charge, it means Gendo’s liability under clause 12.4 is nil.
13. Term and termination
13.1 This Agreement shall commence on the Effective Date and shall continue until it is terminated in accordance with these Terms of Service.
13.2 You may terminate this Agreement at any time by giving Gendo written notice and this Agreement shall end on receipt of the notice by Gendo (for the Free Plan or Educational Plan) or on the next Billing Date following receipt of the notice by Gendo (for all other Plans).
13.3 Gendo may terminate this Agreement at any time with immediate effect by giving you written notice.
13.4 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
13.4.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen(14) days after being notified in writing to make such payment;
13.4.2 the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of ten (10) Business Days after being notified in writing to do so;
13.4.3 the other party is declared bankrupt or insolvent under applicable law;
13.4.4 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
13.4.5 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
13.5 On termination of this Agreement for any reason:
13.5.1 except for perpetual licences, all licences granted under this Agreement shall immediately terminate and you shall cease all use of the Gendo Platform and the Documentation;
13.5.2 except as licenced under perpetual licences, each party shall return and make no further use of any property, documentation and other items (and all copies of them) belonging to the other party;
13.5.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced; and
13.5.4 clauses which expressly or impliedly survive termination continue in force, including clauses 9, 10, 11, 12,
13.5, and 14 to 26 (inclusive).
13.6 Gendo except where this Agreement is terminated by Gendo under clause 13.3 or by you in accordance with clause
13.4.2. In such instance, you shall become entitled to a refund of:
13.6.1 the Fees for the Plan paid by you to Gendo on a pro rata basis calculated by reference to the remaining time period between the date of termination and the next Billing Date; and
13.6.2 the Fees for the 1-off Credits to the extent they are unused.
13.7 You acknowledge that Gendo may suspend access to the Gendo Platform and the Services where Gendo reasonably believes its business or operations are at risk of harm, where you have breached this Agreement or where Gendo reasonably concludes that continued performance would cause it to breach applicable law.
14. Non-compete
You undertake to Gendo that you will not at any time during the term of thisAgreement or for five (5) years from the Effective Date (whichever is less) shall not be liable to you for the refund of any Fees paid in advance, develop, promote, supply or sell (directly or indirectly) any product or service which is similar to, or which competes with, the Gendo Platform.
15. Force majeure
Gendo shall have no liability to you under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Gendo or any other party), failure of a utility service or transport or telecommunications network, act of God, Covid-19, pandemic, endemic, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.
16. Conflict
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Order, the Order shall prevail.
17. Variation
Except as expressly set out in this Agreement, no variation to this Agreement shall be effective unless it is in writing and signed by the parties on a new Order.
18. Waiver
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Severance
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
20. Entire agreement
20.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in thisAgreement.
21. Assignment
21.1 You shall not, without the prior written consent of Gendo, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement.
21.2 Gendo may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement and you shall promptly enter into such agreements as Gendo reasonably requires to give effect to any such assignment or transfer.
22. No partnership or agency
This Agreement is being entered into on a principal-to-principal basis. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. Third party rights
This Agreement does not confer any rights on any third party pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
24. Counterparts
This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
25. Notices
25.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address or main business address, or sent by email to the other party’s email address as set out in the Order, or such other address or email address as may have been notified by that party for such purposes.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender) provided a delivery failure notification is not received by the sender.
25.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Governing Law and Jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims)shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of England and Wales.
