Terms of Use

Introduction

These Terms of Use (the "terms") apply to applicants for, and holders of, an EchoAgent account (an "account"), and the services supplied in relation to that account (the "services"). Please read these terms carefully before opening an account, as they form a part of the contract between us. By accessing or using any EchoAgent services you are agreeing to these terms. We may change all or parts of these terms from time to time. You agree that by accessing or using any of the services at any time after such a change, you will be confirming your acceptance of the new version of these terms.

1. Definitions

• Customer: Such person or persons as the Client may contract with for the sale of Products.
• Confidential Information: Any non-public, proprietary, or confidential information disclosed by one Party to the other Party, whether in writing, orally, or by any other means, and includes but is not limited to trade secrets, business plans, financial information, customer lists, and the terms of this Agreement.
• Data Protection Legislation: The General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 and any national implementing laws, regulations, and secondary legislation, as amended or updated from time to time.
• Intellectual Property Rights: All patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
• Order Form: Digital order form signed or electronically signed by an authorised signatory of the Client, indicating agreement to our commercial offer.
• Products: Any and all products or services made available for purchase, by the Client, to Customers using the SaaS Product licensed under this agreement.
• Shared Personal Data: Personal Data received by the receiving party from or on behalf of the disclosing party, or otherwise made available by the disclosing party under this agreement.
• Platform: Our proprietary cloud-based software platform and any associated applications.
• Services: The Platform and any related support or maintenance services, including training, consulting, and any other services provided by us.
• Term: The agreed duration of this Agreement as specified on the Order Form.
• User: Any employee, contractor, customer, or agent of the Client who is authorised by you to access and use the Platform.
• Fees: Amount due from you to us in consideration for use of the Platform.

2. Provision of Services

• 2.1. We shall:
• 2.1.1. Provide you with access to the Platform and any related Services as described in the Order Form;
• 2.1.2. Use commercially reasonable efforts to ensure the availability, security, and performance of the Platform;
• 2.1.3. Implement appropriate technical and organisational measures to protect the Data and Confidential Information against unauthorised access, disclosure, alteration, or destruction;
• 2.1.4. Provide you with any updates, upgrades, or enhancements to the Platform which are made generally available to our customers at no additional charge.
• 2.2. Service Level Agreement:
• 2.2.1. Uptime and availability: We shall use commercially reasonable efforts to ensure that the Platform is available and accessible 24 hours a day, 7 days a week, with an uptime of at least 95% per calendar month.
• 2.2.2. Maintenance and Updates: We shall perform routine maintenance and updates to the Platform as necessary to ensure continued operation and performance. Such maintenance and updates shall be performed during scheduled maintenance windows, which we will communicate to you at least 7 business days in advance.

3. Your Responsibilities

• 3.1. You shall:
• 3.1.1. Provide us with accurate and complete information necessary for the provision of the Services, including any required technical specifications, system requirements, or other documentation;
• 3.1.2. Use commercially reasonable efforts to ensure that your Users comply with all applicable laws, regulations, and terms of this Agreement when using the Platform;
• 3.1.3. Be responsible for maintaining the confidentiality of any login credentials provided by us, and promptly notify us of any unauthorised access or use;
• 3.1.4. Be responsible for obtaining and maintaining all necessary hardware, software, and internet connectivity required to access and use the Platform.
• 3.2. You shall not:
• 3.2.1. Modify, reverse engineer, decompile, or disassemble the Platform;
• 3.2.2. Sublicense, rent, lease, or distribute the Platform to any third party;
• 3.2.3. Use the Platform for any purpose other than its internal business operations;
• 3.2.4. Use the Platform in a manner that violates any applicable laws or regulations.

4. Payment and Term

• 4.1. In consideration for the Services provided, you agree to pay the fees set forth in the Order Form.
• 4.2. Payments shall be made in accordance with the payment terms specified in the Order Form. You agree to be responsible for any sales taxes, duties, or other charges imposed by any government authority in connection with this Agreement.
• 4.3. You agree to accept invoices raised by us in line with this Agreement, and not to raise your own invoices for transactions covered by this agreement.
• 4.4. You agree to pay the Fees within 30 days of receiving an invoice. Failure to pay on time will result in the Platform being deactivated, and an interest rate of 5% per month applied to any outstanding invoices.
• 4.5. The Term of this Agreement is set by the renewal date specified on the Order Form. The Agreement shall roll over into a monthly duration unless termination notice is given in accordance with the Termination clause below.

5. Intellectual Property

• 5.1. We retain all rights, title, and interest in and to the Platform and any related intellectual property, including but not limited to copyrights, patents, trademarks, and trade secrets.
• 5.2. You are granted a limited, non-exclusive, non-transferable, revocable licence to access and use the Platform solely for your internal business purposes, in accordance with the terms of this Agreement.

6. Processing Personal Data

• 6.1. Both you and us shall be Data Controllers in respect of any Personal Data shared between the parties under this agreement (the "Shared Personal Data").
• 6.2. Both parties agree to only process the Shared Personal Data for the purposes of:
• 6.2.1. Providing the Products to End Users and/or Customers;
• 6.2.2. Complying with obligations under the Data Protection Legislation;
• 6.2.3. Complying with the legal obligations; or
• 6.2.4. Where consent is gained from the End User and/or Customer each party shall be able to process the Personal Data in accordance with such consent.
• 6.3. Both parties shall ensure that any Shared Personal Data is collected and processed in accordance with the Data Protection Legislation.
• 6.4. Each party shall be separately responsible for compliance with its obligations under the Data Protection Legislation, in its capacity as Data Controller, in respect of:
• 6.4.1. The security of the Personal Data when it is under its control;
• 6.4.2. Any transfers of the Personal Data outside the EEA for which that party is responsible;
• 6.4.3. Any requests received from individuals in respect of their rights under the Data Protection Legislation exercised in respect of the Personal Data in that party's possession and/or control.
• 6.5. Neither party shall, by its acts or omissions, cause the other party to breach its respective obligations under the Data Protection Legislation.
• 6.6. You consent to us processing customer data, directly or using 3rd parties, for the purposes of providing the Products to End Users and / or Customers. Anonymised data may be processed for the purposes of statistical analysis, product development and content. Such anonymous data will not include any attributes that uniquely identify individuals, for example name, email address or phone number.
• 6.7. Both parties agree to the OpenAI API data usage policy, available to view at: https://openai.com/policies/api-data-usage-policies.

7. Warranties and Disclaimers

• 7.1. You warrant that you have the necessary rights and authority to enter into this Agreement, and that your use of the Platform will comply with all applicable laws and regulations.
• 7.2. Except as expressly provided in this Agreement, we disclaim all warranties, express or implied, including but not limited to: warranties of merchantability, fitness for a particular purpose, and non-infringement.

8. Indemnity

• 8.1. Each party shall indemnify and hold the other party and any of its employees or officers harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, that party or any of its employees or officers as a result of or in connection with:
  • 8.1.1. Any alleged or actual infringement, of any third party's Intellectual Property Rights or other rights arising out of the promotion or the use or supply of the Products by the Client;
  • 8.1.2. Any breach of the Data Protection Legislation as a result of the Client failing its obligations under clause 6 of this Agreement; and
  • 8.1.3. Any liability, loss, damage, injury, cost or expense sustained by a Customer or any third party as a result of the supply or use of the Products or any other goods or services supplied by the Client.
• 8.2. The provisions of this clause 8 shall survive termination of this agreement, however arising.

9. Limitation of Liability

• 9.1. In no event shall either party be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages, including but not limited to: damages for loss of profits, revenue, goodwill, data, or business opportunities, arising out of or in connection with this Agreement, even if advised of the possibility of such damages, except where expressly allowed within this Agreement.
• 9.2. Each party's aggregate liability for all claims arising out of or in connection with this contract, whether in contract, tort, or otherwise, shall not exceed the total amount paid or payable by the Client to us under this Agreement during the twelve (12) month period immediately preceding the date on which the claim arose.
• 9.3. The limitations of liability set forth in this Section 9 shall not apply to:
• 9.3.1. A Party's breach of its confidentiality obligations under Section 10; or
• 9.3.2. A Party's infringement, misappropriation, or violation of the other Party's intellectual property rights.
• 9.4. Nothing in this agreement shall limit or exclude our liability for:
• 9.4.1. Death or personal injury caused by our own negligence, or the negligence of our employees, agents or subcontractors; or
• 9.4.2. Fraud or fraudulent misrepresentation.
• 9.5. Except as set out in this agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.

10. Confidentiality

• 10.1. Each party undertakes that it shall not at any time during this Agreement, and for a period of two (2) years after termination, disclose to any person any Confidential Information of the other party.
• 10.2. Each party may disclose the other party's Confidential Information:
  • 10.2.1. To its employees, officers, representatives, or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, or advisers to whom it discloses the other party's confidential information comply with this Clause 10; and
  • 10.2.2. As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
• 10.3. No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

11. Termination

• 11.1. This Agreement shall commence on the date agreed in the Order Form and shall continue for an initial term defined on the Order Form (the "Initial Term"), unless terminated earlier in accordance with this Section 11. Thereafter, the Contract shall automatically renew for successive renewal terms of equal duration to the Initial Term (each a "Renewal Term"), unless either party provides written notice of non-renewal at least 7 days before the end of the then-current term. The Initial Term and any Renewal Terms shall collectively be referred to as the "Term".
• 11.2. Without prejudice to any other rights or remedies which we may have, we may terminate this Agreement immediately on giving written notice to you if:
  • 11.2.1. You are in breach of your obligations under this Agreement;
  • 11.2.2. You commit a material breach of any of the terms of this Agreement and (if such a breach is remediable) fail to remedy that breach within 30 days of being notified of the breach;
  • 11.2.3. You suspend, or threaten to suspend, payment of your debts, are unable to pay your debts as they fall due, admit inability to pay your debts or (being a company) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
  • 11.2.4. You commence negotiations with all, or any class of, your creditors with a view to rescheduling any of your debts, or make a proposal for, or enters into any compromise or arrangement with, your creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party;
  • 11.2.5. A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of your business other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party;
  • 11.2.6. An application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over your business;
  • 11.2.7. A floating charge holder over your assets has become entitled to appoint, or has appointed, an administrative receiver;
  • 11.2.8. A person becomes entitled to appoint a receiver over your assets, or a receiver is appointed over your assets;
  • 11.2.9. A creditor or encumbrancer of the Client attaches or takes possession of, or a distress, execution, sequestration, or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  • 11.2.10. Any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause;
  • 11.2.11. You suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of your business; or
  • 11.2.12. There is a change of control of your business (as defined in section 574 of the Capital Allowances Act 2001).
• 11.3. Upon termination or expiration of this Agreement for any reason:
  • 11.3.1. Your access to and use of the Platform shall immediately cease;
  • 11.3.2. You shall promptly pay all outstanding Fees up to the effective date of termination or expiration;
  • 11.3.3. Each party shall return or destroy, as directed by the disclosing party, all Confidential Information of the other party in its possession or control; and
  • 11.3.4. We shall, at your request and expense, return or securely delete all Data in our possession or control, subject to any applicable legal or regulatory retention requirements.

12. Force Majeure

12.1. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement (other than the payment of money) due to any cause beyond its reasonable control, including but not limited to acts of God, war, terrorism, riots, embargoes, strikes, labour disputes, shortages of materials, fire, flood, earthquake, explosion, power outages, governmental actions, or failures of telecommunications or internet service providers (a "Force Majeure Event"), provided that the affected Party promptly notifies the other Party and uses its best efforts to mitigate the impact of the Force Majeure Event.

13. Waiver

• 13.1. Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
• 13.2. No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that right or remedy.

14. Severance

14.1. If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.

15. Entire Agreement

15.1. This Agreement and the information contained within the Order Form together constitute the entire agreement between the parties and supersedes and extinguishes all previous drafts, arrangements, understandings, or agreements between them, whether written or oral, relating to the subject matter of this Agreement.

16. Assignment

• 16.1. You shall not, without our prior written consent, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of your rights or obligations under this agreement.
• 16.2. We may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.

17. No Partnership or Agency

• 17.1. Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other party in any way (including the making of any representation or warranty, the assumption of any obligation or liability, and the exercise of any right or power).
• 17.2. Each party confirms it is acting on its own behalf and not for the benefit of another person.

18. Rights of Third Parties

18.1. No one other than a party to this agreement and their permitted assignees shall have any right to enforce any of its terms.

19. Notices

• 19.1. A notice or other communication given to a party under or in connection with this agreement:
  • 19.1.1. Shall be in writing in English (or accompanied by a properly prepared translation into English);
  • 19.1.2. Shall be signed by or on behalf of the party giving it, and shall be sent to:
    • 19.1.2.1. In respect of EchoAgent: the email address specified in the "Contact Us" page of the Platform from time to time;
    • 19.1.2.2. In respect of the Client: the email address notified to us on the Order Form. The provisions of this clause 19 shall not apply to the service of any process in any legal action or proceedings.

20. Dispute Resolution

• 20.1. If any dispute arises in connection with this agreement, the Client and Provider shall, within 21 days of a written request from one party to the other, attempt in good faith to resolve the dispute via the telephone.
• 20.2. Any dispute, controversy, or claim arising out of or relating to this Agreement, including its interpretation, performance, breach, or termination, shall be settled by arbitration. The arbitration shall be conducted in accordance with the rules of the International Chamber of Commerce.

21. Governing Law and Jurisdiction

21.1. This Agreement shall be governed by, and construed in accordance with, the law of England and Wales.