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- INTERPRETATION
- The Contract
- Supply of Services
- Customer Obligations
- Additional User Subscriptions
- The Services
- Data Protection
- LOCAI's Obligations
- Customer's Obligations
- Third Party Providers
- Charges and Payment
- Intellectual Property Rights
- Confidentiality
- Indemnity
- Limitation of Liability
- Term and Termination
- Force Majeure
- Variation
- Waiver
- Rights and Remedies
- Severance
- Entire Agreement
- Assignment
- No Partnership or Agency
- Third Party Rights
- Notices
- Governing Law
- Jurisdiction
These terms and conditions (the “T&C”) describe the general terms under which LOCAI Ltd. (hereinafter also referred to as “LOCAI”, “We”, “Our” “Us”) provides an individual or entity, who purchases our Service(s) (hereinafter also referred to as “You”, “Your”, “Yourself”) and their Authorised Users, access to and use of Our Service(s).
You and Us will be individually referred to as “Party” and collectively as “Parties”.
1. INTERPRETATION
1.1
The definitions and rules of interpretation in this clause apply in the Agreement.
| Adapted Software | any modifications or adaptations to the Software, including any Output which is stored, contained or embedded in the Software or its underlying model(s), and including data produced by and resulting from the Customer’s use of the Software or the training of the Software on Customer Data |
| Affiliate | in respect of a person, any persons that Control, are Controlled by or are under common Control with that person from time to time, where “Control” means in relation to a person, the power (whether direct or indirect) to direct or cause the direction of its affairs, whether by means of holding shares, possessing voting power, exercising contractual powers or otherwise |
| Agreement | the Order Form, these T&C, the relevant Product Schedule(s) and any other documents which the parties expressly incorporate into the contract for the supply of Services and/or Deliverables by LOCAI to the Customer |
| Authorised Users | those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 4.3.4 |
| Business Day | a day that is not a Saturday, Sunday or public holiday in the United Arab Emirates |
| Confidential Information | has the meaning set out in clause 13.1 |
| Customer Data | the data inputted by the Customer, Authorised Users or LOCAI on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services |
| Customer Materials | any Customer Data, and any other materials supplied by the Customer to LOCAI under or in connection with the Agreement |
| Customer Personal Data | has the meaning set out in clause 7.1 |
| Documentation | any user guides, online help, release notes, training materials and other documentation provided or made available from time to time by LOCAI to Customer regarding the use or operation of the Service |
| Effective Date | the date of the Agreement |
| Fees | the fees payable by the Customer to LOCAI, as set out in the Order Form |
| Initial Term | the initial term of the Agreement as set out in the Order Form |
| Insolvent | a party is Insolvent where it goes into compulsory liquidation (not being a voluntary liquidation for the purpose of reconstruction or amalgamation); or has any attachment order or other seizure under execution or other legal process in respect of its assets; or has a receiver or trustee appointed for it or over any of its assets, undertaking or income; or ceases to trade or appears in DMU’s reasonable opinion to be likely to cease to trade; or is unable to pay its debts as they fall due; or is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction |
| Intellectual Property Rights | all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, confidential information (including know-how and trade secrets), registered trade marks, registered designs, utility models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in any countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions |
| Order Form | the order form that is entered into between LOCAI and the Customer specifying the Services and/or Deliverables to be provided by LOCAI to the Customer |
| Output | any data and materials arising solely and as a direct result of the use of the Software by the Customer |
| Permitted Purpose | the purpose, if any, set out in the Order Form |
| Product Schedule | the schedule setting out the terms and conditions which apply to a particular Service which the Customer takes as described in the Order Form, if any |
| Renewal Period | the period described in clause 16.1 |
| Services | the subscription services provided by LOCAI to the Customer under the Agreement |
| Software | the online software applications provided by LOCAI as part of the Services |
| Specification | the specification of the Services set out at Order Form |
| Term | has the meaning given in clause 16.1 (being the Initial Term together with any subsequent Renewal Periods) |
| Territory | the territory, if any, set out in the Order Form |
| User Subscriptions | the user subscriptions purchased by the Customer pursuant to clause 11.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Agreement |
| 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, and the term Vulnerabilities shall be interpreted accordingly |
1.2
Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.
1.3
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person’s legal and personal representatives, successors or permitted assigns].
1.4
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.
1.8
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
1.9
A reference to writing or written includes email but excludes fax.
1.10
References to clauses are to the clauses of these terms.
1.11
To the extent only of any conflict or inconsistency between these terms and any other documents incorporated into the Agreement, the order of precedence will be as follows:
1.11.1
the Order Form (highest priority);
1.11.2
the relevant Product Schedule(s), if any;
1.11.3
these terms any other documents expressly incorporated into the Agreement (lowest priority).
2. The Contract
2.1
The Order Form, when signed by both parties, constitutes a contract for the supply of Services and/or Deliverables by LOCAI to the Customer on these Conditions and the terms and conditions set out in the relevant Product Schedule, if any. For the avoidance of doubt, LOCAI is under no obligation to enter into any contract.
2.2
These terms and the terms and conditions set out in the relevant Product Schedule are the only terms and conditions on which LOCAI will supply any services and goods to the Customer and will apply to the exclusion of all other terms and conditions including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in any contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.3
Delivery or commencement of the performance of the Services will be deemed conclusive evidence of the Customer’s acceptance of these Conditions and the terms and conditions set out in the relevant Order Form.
3. Supply of Services
3.1
Subject to the Customer purchasing the User Subscriptions in accordance with clause 5.3 and clause 11.1, the restrictions set out in this clause 3 and the other terms and conditions of the Agreement, during the Term:
3.1.1
LOCAI shall provide the Services and the Documentation to the Customer for the Permitted Purpose on and subject to the terms of the Agreement; and
3.1.2
the Customer shall be entitled to use the Services and the Documentation on and subject to the terms of the Agreement.
3.2
LOCAI may, in its sole discretion, offer to the Customer free of charge services other than the Services, such as beta releases of services and temporary access to premium features of services. All such services are offered on and subject to the terms of the Agreement. LOCAI may terminate such services at any time, in its sole discretion, unless otherwise agreed in writing by the Parties
4. Customer Obligations
4.1
The Customer shall devote reasonable time and patience to understanding how to operate the Software and shall use the Software in accordance with the Documentation and with all reasonable instructions of LOCAI relating to the use of the Software. Should the Customer have any doubts as to the operation of the Software, these shall be raised as soon as practicable and in writing with LOCAI.
4.2
The Customer shall comply with all applicable laws relating to its use of the Software and shall not use the Software for any unlawful purposes.
4.3
In relation to the Authorised Users, the Customer undertakes that:
4.3.1
the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
4.3.2
it will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
4.3.3
each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than once every three (3) months and that each Authorised User shall keep their password confidential;
4.3.4
it shall maintain a written, up to date list of current Authorised Users and provide such list to LOCAI within 5 Business Days of LOCAI’s written request from time to time;
4.3.5
it shall permit LOCAI or LOCAI’s designated auditor to gain (physical and remote electronic) access to, and take copies of, the list and record referred to in clause 4.3.4 to audit the Services in order to establish the name and password of each Authorised User and to the Customer’s IT systems to audit compliance with the Agreement. Each such audit may be conducted no more than once per quarter, at LOCAI’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
4.3.6
if any of the audits referred to in clause 4.3.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to LOCAI’s other rights, the Customer shall promptly disable such passwords and LOCAI shall not issue any new passwords to any such individual; and
4.3.7
if any of the audits referred to in clause 4.3.5 reveal that the Customer has underpaid any sum, including Fees, to LOCAI then without prejudice to LOCAI’s other rights the Customer shall pay to LOCAI an amount equal to such underpayment, as calculated where applicable in accordance with the prices set out in the Order Form, within 10 Business Days of the date of the relevant audit.
4.4
The Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Services that:
4.4.1
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.4.2
facilitates illegal activity;
4.4.3
depicts sexually explicit images;
4.4.4
depicts sexually explicit images
4.4.5
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.4.6
is otherwise illegal or causes damage or injury to any person or property; and LOCAI reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
4.5
The Customer shall not:
4.5.1
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Agreement:
4.5.1.1
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
4.5.1.2
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or
4.5.2
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
4.5.3
use the Services and/or Documentation to provide services to third parties;
4.5.4
subject to clause 23.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or
4.5.5
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under the Agreement; or
4.5.6
introduce, or permit the introduction of, any Virus or Vulnerability into the Services or LOCAI’s network and information systems.
4.6
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify LOCAI.
4.7
The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
5. Additional User Subscriptions
5.1
Subject to clauses 5.2 and 5.3, the Customer may, from time to time during the Term, purchase additional User Subscriptions in excess of the number set out in the Order Form and LOCAI shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Agreement.
5.2
If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify LOCAI in writing. LOCAI shall, in its absolute discretion, evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where LOCAI approves the request, LOCAI shall activate the additional User Subscriptions within [number] days of its approval of the Customer’s request.
5.3
If LOCAI approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of LOCAI’s invoice, pay to LOCAI the relevant fees for such additional User Subscriptions as set out in clause 11 and the Order Form and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by LOCAI for the remainder of the Initial Term or then current Renewal Period (as applicable).
6. The Services
6.1
LOCAI shall provide the Services in accordance with the Specification.
6.2
LOCAI warrants that it has trained and tested the Software as set out in the Specification. The Customer acknowledges that the Software has not been trained or tested for any specific use by the Customer and no further warranties or undertakings are provided as to the training and testing of the Software for the Customer’s Permitted Purpose.
6.3
LOCAI warrants that the Software shall operate materially in accordance with the Specification, provided that it is used by the Customer pursuant to the Agreement. Otherwise, the Customer disclaims (and acknowledges to be excluded) any express or implied rights or obligations in respect of the Software’s performance which are not expressly set out in the Agreement, including any terms, warranties or conditions as to the satisfactory quality or fitness for purpose of the Software and the accuracy of any output of the Services. The Customer accepts that LOCAI has made or makes no other representations or undertakings regarding the operation and adequacy of the Services, including whether the Services meet the Customer’s individual requirements. Any express or implied rights or obligations in respect of the Software’s performance, including any terms, warranties or conditions as to the satisfactory quality or fitness for purpose of the Software, are excluded. Customer acknowledges that the Agreement is for the provision of software as a service and LOCAI will not be delivering copies of any software to Customer as part of the Services.
6.4
LOCAI shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
6.4.1
planned maintenance; LOCAI will use reasonable endeavours to notify the Customer in advance of such planned maintenance;
6.4.2
unscheduled maintenance, provided that LOCAI has used reasonable endeavours to give the Customer at least one Business Day’s notice in advance of such maintenance where practicable to do so.
6.5
LOCAI will take reasonable steps to ensure that the Documentation is updated to reflect any changes in the Software, and will provide such updated Documentation to the Customer, as soon as reasonably possible after the change. The Documentation will be supplied “as is”. No warranties or undertakings are provided as to the content or quality of the Documentation and, save as expressly provided in this clause 6.5, LOCAI has no obligation to update the Documentation or provide further Documentation, including to adapt it to the Customer’s use.
6.6
LOCAI has no obligation to provide Software updates or upgrades to the Customer but where so provided it may do so without notice or prior permission. Any such upgrades or updates so provided will become subject to the terms and conditions of the Agreement.
6.7
LOCAI reserves the right to deploy a circuit-breaker capable of interrupting and stopping the operation of the Software. LOCAI shall be entitled to deploy the circuit-breaker in any circumstances where LOCAI, acting reasonably, considers it is necessary to do so or to comply with applicable law. The Customer shall not be entitled to any compensation or refunds in any circumstances where LOCAI deploys the circuit-breaker in accordance with this clause 6.7.
6.8
LOCAI shall at its sole discretion be entitled to equip the Software with a means of recording information about the Software's operation, including the Customer’s use of the Software.
6.9
The Customer acknowledges that LOCAI does not maintain dedicated back up or disaster recovery facilities and the Customer should ensure that it maintains at all times any backups of Customer Data which it may require.
7. Data Protection
7.1
In performing the Services and its other obligations under the Agreement LOCAI and, where applicable, its third-party AI service providers, will process personal data as further described in the Privacy Policy ('Customer Personal Data') as a data processor on behalf of the Customer. The Customer expressly instructs LOCAI to process the Customer Personal Data, including:
7.1.1
to collect, store, organise, adapt, alter, modify, retrieve, exchange, use, share, classify, disclose, make available, align, combine, restrict, block, erase, create models and destroy the Customer Personal Data to the extent necessary to provide the Services hereunder, including granting access to the Platform to the Customer’s users;
7.1.2
to transfer, including transferring outside the UAE, to LOCAI’s third party AI service providers the Customer Personal Data to the extent necessary to provide the Services under the Agreement, and for the AI service providers to duly anonymise the Customer Personal Data and use it to train and improve the AI system used in relation to the Services.
7.2
LOCAI is hereby authorised to process the Customer Personal Data as set out in this clause for the Term. Upon the termination of the Agreement, LOCAI shall, at the option of the Customer, delete or return the Customer Personal Data to the Customer.
7.3
LOCAI shall process the Customer Personal Data in a manner that complies with the provisions of Federal Decree-Law No. 45/2021 on the Protection of Personal Data.
7.4
The Customer warrants it holds the necessary consent and/or other legal grounds for LOCAI to process the Customer Personal Data pursuant to this clause. The Customer will indemnify LOCAI against all losses, liabilities, damages, costs (including reasonable legal and other professional costs) and expenses that LOCAI will incur or suffer arising out of or in connection with the Customer’s failure to comply with its obligation under the applicable data protection law.
8. LOCAI's Obligations
8.1
LOCAI shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.
8.2
LOCAI’s obligations at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to LOCAI’s instructions, or modification or alteration of the Services by any party other than LOCAI or LOCAI’s duly authorised contractors or agents. If the Services do not conform with the terms of clause 8.1, LOCAI will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.
8.3
LOCAI does not warrant that:
8.3.1
the Customer’s use of the Services will be uninterrupted or error-free;
8.3.2
the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
8.3.3
the Software or the Services will be free from Vulnerabilities or Viruses.
8.4
LOCAI is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.5
The Agreement shall not prevent LOCAI from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
8.6
LOCAI warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
8.7
LOCAI shall follow any archiving procedures for Customer Data as set out in the Documentation, as may be amended by LOCAI in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against LOCAI shall be for LOCAI to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by LOCAI in accordance with the archiving procedure described in the Documentation. LOCAI shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by LOCAI to perform services related to Customer Data maintenance and back-up, for which it shall remain fully liable).
9. Customer's Obligations
9.1
The Customer shall:
9.1.1
provide LOCAI with:
9.1.1.1
all necessary co-operation in relation to the Agreement, including providing any information and assistance which LOCAI may reasonably require;
9.1.1.2
all necessary access to such information as may be required by LOCAI;
9.1.1.3
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
9.1.2
without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
9.1.3
carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner; in the event of any delays in the Customer’s provision of such assistance as agreed by the parties, LOCAI may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.1.4
ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;
9.1.5
obtain and maintain all necessary licences, consents and permissions necessary for LOCAI, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
9.1.6
ensure that its network and systems comply with the relevant specifications provided by LOCAI from time to time;
9.1.7
be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to LOCAI’s website or other relevant system, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9.2
The Customer warrants that there will be human oversight of the use of the Software at all times in which it is in use and shall use the Software responsibly and ethically at all times.
9.3
The Customer shall not use the Software in any way which may damage the reputation of LOCAI.
9.4
The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9.5
The Customer shall notify LOCAI in writing as soon as it becomes aware of any actual or suspected unauthorised installation or use of the Software (including any installation or use in excess of the number of User Subscriptions).
9.6
Any third party software supplied as part of, or in addition to, the Software may be subject to any additional terms and conditions notified to the Customer. The Customer agrees to comply with any terms and conditions relating to such third party software.
10. Third Party Providers
10.1
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. LOCAI makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not LOCAI. LOCAI recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. LOCAI does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
11. Charges and Payment
11.1
The Customer shall pay the Fees to LOCAI for the User Subscriptions in accordance with this clause 11.
11.2
The Customer shall on the Effective Date provide to LOCAI valid, up-to-date and complete credit card details or approved purchase order information acceptable to LOCAI and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
11.2.1
its credit card details to LOCAI, the Customer hereby authorises LOCAI to bill such credit card:
11.2.1.1
on the Effective Date for the Fees payable in respect of the Initial Term;
11.2.1.2
subject to clause 16.1, on each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period;
11.2.2
its approved purchase order information to LOCAI, LOCAI shall invoice the Customer:
11.2.2.1
on the Effective Date for the Fees payable in respect of the Initial Term;
11.2.2.2
subject to clause 16.1, at least 30 days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.
11.3
If LOCAI has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of LOCAI:
11.3.1
LOCAI may, on no less than 5 Business Days’ notice to the Customer and without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and LOCAI shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
11.3.2
LOCAI may at its sole discretion, apply interest which shall accrue on a daily basis on such due amounts at an annual rate equal to [3]% over the then current base lending rate of the Central Bank of the United Arab Emirates from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
11.4
All amounts and fees stated or referred to in the Agreement:
11.4.1
shall be payable in [UAE Dirhams];
11.4.2
are, subject to clause 15.5, non-cancellable and non-refundable;
11.4.3
are exclusive of value added tax, which shall be added to LOCAI’s invoice(s) at the appropriate rate.
11.5
LOCAI shall be entitled to increase the Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 5.3 at the start of each Renewal Period upon 90 days’ prior notice to the Customer.
11.6
If this Agreement expires or is terminated before the end of any period for which Fees have been paid, LOCAI will refund to the Customer the proportion of the Fees which relates to the period following expiry or termination.
12. Intellectual Property Rights
12.1
The Customer acknowledges and agrees that LOCAI and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, under or in any Intellectual Property Rights or any other rights or licences in respect of the Services or the Documentation.
12.2
The parties acknowledge and agree that all rights, title and interest in and to any Intellectual Property Rights arising as a result of implementation or integration of the Software in or in relation to the Customer’s Environment, or in any Adapted Software, shall belong to and remain vested in (or automatically upon creation, vest in) LOCAI.
12.3
Subject to the terms of the Agreement and payment of the Fees, LOCAI hereby grants to the Customer a non-exclusive, non-transferable licence, without the right to grant sublicences, to permit the Authorised Users to access and use the Services and the Documentation during the Term for the Permitted Purpose in the Territory, to use solely internal business operations or for the Customer’s own personal use, as applicable.
12.4
LOCAI confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
12.5
In relation to Output:
12.5.1
the parties hereby agree that, to the extent possible, all Intellectual Property Rights in the Output shall belong to the Customer;
12.5.2
the Customer hereby grants to LOCAI a non-exclusive, transferable, worldwide, perpetual and irrevocable licence, together with the right to grant sublicences, to use the Output for further training, developing and improving the Software, its algorithms and models and to exercise or perform LOCAI’s rights, remedies and obligations under the Agreement.
12.6
The parties hereby agree that in relation to Customer Materials:
12.6.1
any and all Intellectual Property Rights arising in relation to the Customer Materials are retained by the Customer;
12.6.2
the Customer hereby grants a non-exclusive, transferable, worldwide, perpetual and irrevocable licence, together with the right to grant sublicences, for LOCAI (and each of its direct and indirect sub-contractors) to use, copy and otherwise utilise the Customer Materials as required to develop or provide the Services, including the Software and/or the Adapted Software, for further developing and improving its algorithms and models and to exercise or perform LOCAI’s rights, remedies and obligations under the Agreement;
12.6.3
the Customer hereby grants to LOCAI a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license, together with the right to grant sublicences, to use, copy and otherwise utilise the Customer Materials as necessary to commercialise, sell and support the Software and/or the Adapted Software with LOCAI’s other existing and future customers;
12.6.3.1
provided that the Customer Materials are or have become part of the Software;
12.6.3.2
to the extent that they are incorporated in the Software and/or the Adapted Software; and
12.6.3.3
provided that they are anonymized, non-identifiable, and reduced to mathematical constructs.
12.7
LOCAI may use any feedback and suggestions for improvement relating to the Software, the Adapted Software or the Services provided by LOCAI ('Feedback') without charge or limitation. The Customer acknowledges and agrees that any Intellectual Property Rights arising in the Feedback or the related improvements will be owned exclusively by LOCAI, and the Customer hereby assigns absolutely and with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to LOCAI any such Intellectual Property Rights.
12.8
The Customer hereby waives (and shall ensure that all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to LOCAI under the Agreement.
13. Confidentiality
13.1
Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to, or obtained by, the other party and that party’s Representatives whether before or after the date of the Agreement in connection with the Agreement, including but not limited to:
13.1.1
the terms of the Agreement or any agreement entered into in connection with the Agreement;
13.1.2
any information that would be regarded as confidential by a reasonable business person relating to:
13.1.2.1
the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any Affiliate of the disclosing party);
13.1.2.2
the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any Affiliate of the disclosing party);
13.1.3
any information developed by the parties in the course of carrying out the Agreement and the parties agree that:
13.1.3.1
details of the Services, and the results of any performance tests of the Services, shall constitute LOCAI Confidential Information;
13.1.3.2
Customer Data shall constitute Customer Confidential Information.
13.2
“Representatives” means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
13.3
The provisions of this clause shall not apply to any Confidential Information that:
13.3.1
is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
13.3.2
was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
13.3.3
was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
13.3.4
the parties agree in writing is not confidential or may be disclosed; or
13.3.5
is developed by or for the receiving party independently of the information disclosed by the disclosing party.
13.4
Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
13.4.1
use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Agreement (Permitted Purpose); or
13.4.2
disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 13.
13.5
A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
13.5.1
it informs such Representatives of the confidential nature of the Confidential Information before disclosure;
13.5.2
at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
13.6
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by applicable law, by any governmental or other regulatory authority (including, without limitation, any relevant securities exchanges) 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 13.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.7
Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Agreement are granted to the other party, or are to be implied from the Agreement.
13.8
On termination or expiry of the Agreement, each party shall:
13.8.1
destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
13.8.2
erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
13.8.3
certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 16 (Termination).
13.9
LOCAI may refer to the Customer by name as a customer in respect of the Services for the purpose of promoting or marketing LOCAI and its services.
13.10
Except as expressly stated in the Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
13.11
The above provisions of this clause 13 shall continue to apply after termination [or expiry] of the Agreement.
14. Indemnity
14.1
The Customer shall defend, indemnify and hold harmless LOCAI against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
14.1.1
the Customer is given prompt notice of any such claim;
14.1.2
LOCAI provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense;
14.1.3
the Customer is given sole authority to defend or settle the claim.
14.2
If any claim is made against the Customer that the Customer’s use of the Services or Documentation in accordance with the Agreement infringes any Intellectual Property Rights of any third party, LOCAI may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
14.3
In no event shall LOCAI, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged infringement is based on:
14.3.1
a modification of the Services or Documentation by anyone other than LOCAI;
14.3.2
the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by LOCAI;
14.3.3
the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from LOCAI or any appropriate authority;
14.3.4
the Customer’s breach of the Agreement.
14.4
The foregoing and clause 15.3.2 state the Customer’s sole and exclusive rights and remedies, and LOCAI’s (including LOCAI’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.
15. Limitation of Liability
15.1
Except as expressly and specifically provided in the Agreement:
15.1.1
the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. LOCAI shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to LOCAI by the Customer in connection with the Services, or any actions taken by LOCAI at the Customer’s direction;
15.1.2
all warranties, representations, conditions and all other terms of any kind whatsoever implied by law are, to the fullest extent permitted by applicable law, excluded from the Agreement;
15.1.3
the Services and the Documentation are provided to the Customer on an “as is” basis.
15.2
Nothing in the Agreement excludes the liability of LOCAI:
15.2.1
for death or personal injury caused by LOCAI’s negligence;
15.2.2
for fraud or fraudulent misrepresentation.
15.3
Subject to clause 15.1 and clause 15.2:
15.3.1
LOCAI shall have no liability for any:
15.3.1.1
loss of profits,
15.3.1.2
loss of business,
15.3.1.3
wasted expenditure,
15.3.1.4
depletion of goodwill and/or similar losses,
15.3.1.5
loss or corruption of data or information, or
15.3.1.6
any special, indirect or consequential loss, costs, damages, charges or expenses;
15.3.2
LOCAI’s total aggregate liability to the Customer (including in respect of the indemnity at clause 14.2), in respect of all breaches of duty occurring within any contract year shall not exceed one hundred per cent (100%) of the total Fees paid in the contract year in which the breaches occurred. A contract year means a 12 month period commencing on the Effective Date or any anniversary of it.
15.3.3
If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, LOCAI’s total liability for those claims shall not exceed one hundred per cent (100%) of the highest of the annual Fees paid in each of the contract years in which the breaches occurred.
15.4
References to liability in this clause 15 include every kind of liability arising under or in connection with the Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.5
Nothing in the Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of LOCAI’s Intellectual Property Rights.
16. Term and Termination
16.1
The Agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Term and, thereafter, the Agreement shall be automatically renewed for successive similar periods (each a Renewal Period), unless:
16.1.1
either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or
16.1.2
otherwise terminated in accordance with the provisions of the Agreement;
16.2
and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.
16.3
Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
16.3.1
the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
16.3.2
the other party commits a material breach of any other term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
16.3.3
the other party becomes Insolvent; each party will notify the other party immediately upon becoming Insolvent;
16.3.4
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
16.3.5
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 the Agreement is in jeopardy.
16.4
On termination of the Agreement for any reason:
16.4.1
all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
16.4.2
each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
16.4.3
the Customer shall return to LOCAI or, at LOCAI's request, irrevocably delete and destroy any copies of or object code related to the Software, including any and all Adapted Software, in the Customer's possession or control and certify in writing to LOCAI that this has been done;
16.4.4
LOCAI may destroy or otherwise dispose of any of the Customer Data in its possession; and
16.4.5
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.
17. Force Majeure
17.1
Neither party shall be in breach of the Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for three months, the party not affected may terminate the Agreement by giving 30 days’ written notice to the affected party.
18. Variation
18.1
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. Waiver
19.1
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.2
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
20. Rights and Remedies
20.1
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21. Severance
21.1
If any provision or part-provision of the 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 the Agreement.
21.2
If any provision or part-provision of the Agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire Agreement
22.1
The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
22.2
Each party acknowledges that in entering into the 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 the Agreement.
22.3
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
22.4
Nothing in this clause shall limit or exclude any liability for fraud.
23. Assignment
23.1
The Customer shall not, without the prior written consent of LOCAI, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
23.2
LOCAI may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
24. No Partnership or Agency
24.1
Nothing in the 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).
25. Third Party Rights
25.1
Unless it expressly states otherwise, the Agreement does not give rise to any rights for any third party to enforce any term of the Agreement.
25.2
The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person.
26. Notices
26.1
Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:
26.1.1
delivered by hand or by commercial courier at its registered office (if a company) or its principal place of business (in any other case); or
26.1.2
sent by email to the address provided by the Customer or to the following addresses (or an address substituted in writing by the party to be served):
26.1.2.1
Party 1: [ADDRESS].
26.1.2.2
Party 2: [ADDRESS].
26.2
Any notice shall be deemed to have been received:
26.2.1
if delivered by hand, at the time the notice is left at the proper address;
26.2.2
if sent by commercial courier, at 9.00 am on the second Business Day after collection by or delivery to the commercial courier of the notice;
26.2.3
if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
26.3
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.
27. Governing Law
27.1
The 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 interpreted in accordance with the law of the Abu Dhabi Global Market, United Arab Emirates ('ADGM').
28. Jurisdiction
28.1
The Parties agree that any and all claims, disputes, or controversies arising from or related to the Agreement (including non-contractual disputes or claims) shall be exclusively settled through binding arbitration conducted in ADGM. The arbitration shall be conducted in accordance with the rules and procedures established by the ADGM Arbitration Centre, and the decision rendered by the arbitrator(s) shall be final and binding upon the Parties. The arbitration proceedings shall be conducted in English. The arbitrator(s) shall be allowed to order in its award that all or part of the legal or other costs incurred by a party be paid by another party, unless the parties agree otherwise in writing. For the avoidance of doubt, legal and other costs shall include without limitation attorneys' fees, costs for expert witnesses, costs to have witnesses travel to the arbitration and costs for copying and presenting exhibits.