1 APPLICATION OF THIS AGREEMENT
1.1 This Professional Services Agreement applies to our Professional Services (as that term is defined below). By signing or instructing us to proceed with a Statement of Work:
- you agree to the Agreement (as defined below); and
- where you sign or instruct us to proceed with a Statement of Work on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to the Agreement on that person’s behalf and that, by agreeing to the Agreement on that person’s behalf, that person is bound by the Agreement.
1.2 Once you have signed or instructed us to proceed with a Statement of Work in accordance with clause 1.1, this will result in the formation of an agreement between you and us for the Professional Services specified in the Statement of Work, on the terms set out in the Statement of Work and this Professional Services Agreement (Agreement).
1.3 The Agreement is separate to any other agreement that may be in place between you and us, including any agreement arising under another Statement of Work.
1.4 The Agreement applies to the exclusion of any standard terms you may have for the purchase of goods or services and any terms included, or incorporated by reference, in any request for quote, purchase order or other correspondence between us.
1.5 The Agreement is limited to Professional Services and does not convey any right to use, or govern your use of, our Platform Services. Any use of our Platform Services by you will be governed by our master subscription agreement (accessible at http://ambitai.com) or another separate agreement with you.
2.1 We may change the terms in this Professional Services Agreement at any time by notifying you of the change by email and by posting a notice on the Website. The changed terms will apply to Statements of Work that you sign or instruct us to proceed with on or after the date set out in the notice, but will not apply to Statements of Work that you sign or instruct us to proceed with before that date unless the parties agree otherwise in writing. Each time that you sign or instruct us to proceed with a Statement of Work, you are responsible for ensuring you are familiar with the latest Professional Services Agreement. By signing or instructing us to proceed with a Statement of Work on or after the date on which the terms in this Professional Services Agreement are changed, you agree that the changed Professional Services Agreement applies to that Statement of Work.
2.2 This Professional Services Agreement was last updated on 21 December 2017.
3.1 In the Agreement: Agreement means this Professional Services Agreement, including the Statement of Work.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Underlying Systems. Your Confidential Information includes Intellectual Property owned by you (or your licensors), including your Retained IP. Conversational AI Instance means a chatbot or other conversational artificial intelligence instance. Conversational Material means the written language and conversational direction implemented into a Conversational AI Instance as the framework for directing user engagement through conversations with the Conversational AI Instance, including associated content.
Fees means the fees for the Services set out in the Statement of Work.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
including and similar words do not imply any limit.
Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
a party includes that party’s permitted assigns.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
New Conversational Material means Conversational Material created or developed by us in providing the Professional Services.
Personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Platform Services means our conversational AI platform services provided to you on a platform-as-as- service basis under our master subscription agreement (accessible at http://ambitai.com) or another separate agreement with you.
Professional Services means the services set out in a Statement of Work (which may include design, development, implementation, testing and maintenance of Conversational AI Instances and Conversational Material, and training on the use of the Platform Services), excluding any Platform Services.
Retained IP means the Intellectual Property and Conversational Material referred to in clause 6.1. Requirements means the requirements for the Professional Services set out in a Statement of Work. Sales Tax means sales tax, value added tax, goods and services tax, or equivalent tax payable under any applicable law.
Start Date means the date that you sign or instruct us to proceed with the Statement of Work, unless otherwise specified in the Statement of Work.
Statement of Work means any document entitled Statement of Work, Letter of Engagement, Proposal or similar that we issue to you and that is expressed to be governed by the Agreement.
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used to provide the Platform Services, including any third party solutions, systems and networks.
We, us or our means Ambit AI Limited, a New Zealand company (company number 6262668).
Website means the internet site at http://ambit-ai.com or such other site notified to you by us.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
3.2 Unless stated otherwise in the Statement of Work, if there is any conflict between the documents forming the Agreement, those documents have the following descending order of precedence:
- this Professional Services Agreement; and
- the Statement of Work.
4.1 We will provide the Professional Services:
- in accordance with the Agreement, including any Requirements, and all applicable laws;
- using reasonable efforts to meet any timeframe set out in the Statement of Work;
- exercising reasonable care, skill and diligence; and
- using suitably skilled, experienced and qualified staff.
4.2 In addition to your other obligations, you must:
- perform the functions, tasks and responsibilities, and provide the personnel, materials or other resources, set out in the Statement of Work:
- in a timely manner;
- in accordance with the Agreement and all applicable laws;
- exercising reasonable care, skill and diligence; and
- using suitably skilled, experienced and qualified staff; and
- promptly make decisions (including approvals) and provide us with all information reasonably required to provide the Professional Services.
5.1 You must pay us the Fees for providing the Professional Services.
5.2 The Fees exclude Sales Tax, which you must pay on taxable supplies.
5.3 Unless otherwise set out in the Statement of Work, we will invoice you for the Services provided on the date of acceptance of the Statement of Work.
5.4 You must pay the Fees:
- unless otherwise set out in the Statement of Work on receipt of the invoice; and
- electronically in cleared funds without any set-off or deduction.
5.5 We may recover from you any expenses set out in the Statement of Work or which have otherwise been reasonably incurred by us in connection with the Professional Services.
5.6 We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
6 INTELLECTUAL PROPERTY
6.1 The following Intellectual Property and Conversational Material (including any modification, enhancement or derivative work of that Intellectual Property and Conversational Material) remains the property of the current owner, regardless of its use in the Professional Services:
- Intellectual Property and Conversational Material that existed prior to the date of the Agreement; and
- Intellectual Property and Conversational Material that was developed independently of the Agreement.
6.2 Subject to clause 6.1, title to, and all Intellectual Property Rights in, the Platform Services, the Website, and all Underlying Systems (including in each case any modifications, enhancements or derivative works of such items made under the Agreement) is and remains our property (and the property of our licensors). You must not dispute that ownership.
6.3 Unless specified otherwise in a Statement of Work:
- subject to clauses 6.1 and 6.4, all New Conversational Material is owned by you on receipt by us of payment in full of the Fees for the Professional Services and all applicable monthly fees for the Platform Services; and
- if any New Conversational Material incorporates our Intellectual Property or Conversational
Material or any third party material, we grant or must obtain for you an irrevocable, perpetual, non- transferable and fully paid licence to use that Intellectual Property or third party material solely for your internal business purposes.
6.4 To the extent not owned by us, you grant us:
- non-exclusive, royalty-free, non-transferable and revocable right to use, copy and modify your Retained IP solely to perform our obligations under the Agreement; and
- non-exclusive, transferable, irrevocable and perpetual licence to use for our own business purposes:
- any New Conversational Material; and
- any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Professional Services.
6.5 If you provide us with ideas, comments or suggestions relating to the Platform Services or Underlying Systems (together feedback):
- all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
- we may use or disclose the feedback for any purpose.
7 IP INDEMNITY
7.1 Each party (Provider) indemnifies the other party (Recipient) from and against any claim or proceeding brought against the Recipient to the extent that claim or proceeding alleges that the Recipient’s possession use of any Intellectual Property, information, design, specification, instruction or material provided by the Provider to the Recipient under the Agreement (Material) in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim).
7.2 The Recipient must:
- promptly notify the Provider in writing of any IP Claim;
- make no admission of liability and not otherwise prejudice or settle the IP Claim, without the Provider’s prior written consent; and
- give the Provider complete authority and information required for the Provider to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Provider’s account.
7.3 The indemnity in clause 7.1 does not apply to the extent that an IP Claim arises from or in connection with:
- a breach of the Agreement by the Recipient;
- the use of the Material in a manner or for a purpose not reasonably contemplated by the Agreement and not otherwise authorised in writing by the Provider;
- Material provided by the Recipient; or
- the Provider’s compliance with the Recipient’s instructions or specifications.
7.4 If at any time an IP Claim is made, or in the Provider’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Provider may (at its option):
- obtain for the Recipient the right to continue using the items that are the subject of the IP Claim;
- modify, re-perform or replace the items that are the subject of the IP Claim so they become non- infringing; or
- terminate the Agreement.
7.5 To the maximum extent permitted by law, this clause 7 sets out our entire liability under the Agreement or in connection with the Services for any infringement of a third party’s Intellectual Property Rights.
8.1 Each party must, unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
- disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 8.1a and 8.1b.
8.2 The obligation of confidentiality in clause 8.1 does not apply to any disclosure or use of Confidential Information:
- for the purpose of performing a party’s obligations, or exercising a party’s rights, under the Agreement;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
- by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.5.
8.3 Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.
9.1 Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
9.2 We warrant that the Professional Services will, at the time they are provided, materially conform to the Requirements.
9.3 If the Professional Services do not meet a warranty, at your request and at our cost, we will reperform the Professional Services so that they meet or satisfy that warranty. Our obligation under this clause 9.3 is your sole remedy against us for breach of warranty.
9.4 To the maximum extent permitted by law, our warranties are limited to those stated in clauses 9.1 and 9.2. Any implied condition or warranty is excluded.
9.5 You agree and represent that you are acquiring the Professional Services for the purposes of a business and that no consumer protection legislation applies to the supply of the Professional Services or the Agreement.
10.1 Our maximum aggregate liability under or in connection with the Agreement or relating to the Professional Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you under the Agreement.
10.2 Neither party is liable to the other under or in connection with the Agreement or the Professional Services for any:
- loss of profit, revenue, savings, business, use, data and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
10.3 Clause 10.1 does not apply to exclude or limit our liability:
- under the indemnity in clause 7;
- under or in connection with the Agreement for:
- fraud or wilful misconduct; or
- breach of clause 7.5; or
- that cannot be excluded or limited at law.
10.4 Clause 10.2 does not apply to exclude or limit:
- your liability to pay the Fees; or
- either party’s liability for those matters stated in clauses 10.3b and 10.3c.
10.5 Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
10.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement or the Professional Services.
11 TERM AND TERMINATION
11.1 Unless terminated under this clause 11 or in accordance with any additional termination rights set out in the Statement of Work:
- the Agreement starts and ends on the dates set out in the Statement of Work; or
- if no dates are set out in the Statement of Work, starts on the date that you sign or instruct us to proceed with the Statement of Work and ends when the Professional Services are complete.
11.2 Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
- breaches any material provision of the Agreement and the breach is not:
- remedied within 30 days of the receipt of the notice from the first party requiring it to remedy the breach; or
- capable of being remedied; or
- has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason.
11.3 Expiry or termination of the Agreement does not affect each party’s rights and obligations accrued before the termination or expiry date.
11.4 You must pay for Professional Services provided (including expenses incurred) in accordance with the Agreement before the expiry or termination date.
12.1 Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure.
12.2 Neither party will, during the term of this Agreement and for 6 months after its expiry or termination (Restraint Period), without the prior written consent of the other party, directly or indirectly solicit or offer employment or any contract for services to any of the other party’s personnel, or solicit or entice any member of the other party’s personnel to terminate their position, employment or relationship with the other party. This clause does not restrict a party from hiring any person who has responded to a genuine published advertisement of a position with that party that is not targeted at the particular individual and without any other solicitation.
12.3 No person other than you and us has any right to a benefit under, or to enforce, the Agreement.
12.4 To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
12.5 We are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
12.6 A notice given by a party under the Agreement must be delivered via email to the email address set out in the Statement of Work or as otherwise notified by the other party for this purpose. If the notice is given under clause 11, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive of the other party.
12.7 The Agreement, and any dispute relating to the Agreement or the Professional Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non- exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with the Agreement or the Professional Services.
12.8 Clauses which, by their nature, are intended to survive termination of the Agreement, including clauses 6, 7, 7.5, 9, 10, 11.3, 11.4 and 12.7, continue in force.
12.9 If any part or provision of the Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from the Agreement. The remainder of the Agreement will be binding on you and us.
12.10 Except as expressly set out otherwise in the Agreement, any variation to the Agreement must be in writing and signed by both parties.
12.11 The Agreement set out everything agreed by the parties relating to the Professional Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Professional Services that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.
12.12 You may not assign, novate, subcontract or transfer any right or obligation under the Agreement without our prior written consent. You remain liable for your obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any change of control of you is deemed to be an assignment for which our prior written consent is required under this clause. In this clause, change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in the effective control of you.
12.13 We may assign, novate, subcontract and/or or transfer any right or obligation under this Agreement without any need for your consent.
12.14 The Statement of Work may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and sending (including by facsimile, email or other electronic means) a counterpart copy of the Statement of Work to the other party.