- Grant of Rights. Subject to full payment of the fees (where applicable), the Customer is granted a non-transferable, non-exclusive licence to access and use the Kortical (www.kortical.com), platform and services as chosen by the Customer in its Subscription Plan ("Services") solely for its internal business purposes. This licence is granted exclusively to the Customer and may not be sublicensed, assigned, delegated or otherwise transferred or extended to any affiliate or any third party except with the prior written consent of Kortical.
- Customer's Responsibility. The Customer shall ensure that each member of the Customer's personnel who are given access to the Services acknowledge the obligations on the Customer under this Agreement with respect to authorised use (and restrictions on use) of the Services and agree to comply with the same. The Customer shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to the Customer's personnel in order to access the Services. Kortical reserves the right to suspend or deactivate the account of any user who fails to comply with this Agreement. The Customer shall be liable for any breach of any terms of this Agreement by any person who (i) exercises the rights of the Customer under this Agreement or is otherwise permitted access to the Services by the Customer or (ii) accesses the Services using any log-on identifiers, including usernames and passwords, assigned to the Customer, as if such act or omission were that of the Customer. The Customer shall immediately notify Kortical in the event that the Customer becomes aware of any breach of this Agreement and provide all reasonable assistance to Kortical to bring an end to such unauthorised access or use.
- Intellectual Property. Subject to the remainder of this provision below, nothing in this Agreement will transfer any right, title or interest in a party’s designs, methodologies, inventions, patents, copyrights, trade secrets, know-how, database rights, trade names, skills, ideas, concepts and techniques or other Intellectual Property Rights to the other party. Customer and Kortical will each retain all pre-existing rights they may have in their respective Intellectual Property Rights. The Customer shall grant to Kortical a royalty-free, non-exclusive, non-transferable licence to use any data or information required by Kortical to the extent necessary and for the sole purpose of providing the Services.
- Feedback. If the Customer provides any feedback, comments, suggestions or ideas to Kortical about or in connection with the Services then the Customer grants Kortical a perpetual, irrevocable, worldwide, royalty-free, non-exclusive licence (including the right to sublicense (including through multiple tiers) to use, copy, modify and otherwise exploit the same for any purpose, without any compensation to the Customer or any restriction or obligation on account of intellectual property rights or otherwise.
- Obligations of the Customer. The Customer shall provide Kortical with all necessary cooperation in relation to this Agreement; all necessary access to such information as may be required by Kortical in order to provide the Services; and without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement; and shall not:
(i) permit any third party to access or use to the Services on behalf of any third party;
(ii) copy, translate, modify, adapt or create derivative works from any of the Services;
(iii) attempt to discover or gain access to the source code for any software forming part of the Services or reverse engineer, modify, decrypt, extract, disassemble or decompile the same (except strictly to the extent that the Customer is permitted to do so under applicable law in circumstances under which Kortical is not lawfully entitled to restrict or prevent the same);
(iv) attempt to interfere with the proper working, security or protection mechanisms of any of the Services or software forming part of the Services or attempt to override or circumvent any of the usage rules embedded into the Services;
(v) attempt to make any customisations or other modifications made to any part of the information and material comprised within the Services;
(vi) amend or remove any copyright notice, trade mark or other proprietary marking on the Services or software forming part of the Services; or
(vii) use the Services to (A) upload, store, transmit or otherwise make available any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or obligation of confidence, is obscene, threatening, incites violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through the Services or (B) engage in any fraudulent activity or further any fraudulent purpose;
(viii) provide false identity information to gain access to or use the Services;
(ix) attempt to gain unauthorised access to any Services or its related systems or networks.
- Fees. Kortical offers several different Subscription Plans for the Services. The Customer selects its Subscription Plan when registering an account with Kortical and the Customer can change this Subscription Plan at any time. Payment is taken by credit card monthly or annually as chosen by the Customer. Information about the Subscription Plans is available on the pricing page. All fees quoted on Kortical’s website are exclusive of VAT or any other taxes that may be applicable in the Customer’s jurisdiction. Customer may upgrade or downgrade a Subscription Plan at any time during the Subscription Term, upon which Kortical will apply the respective fees on a pro-rata basis. At the end of a Subscription Term, Kortical reserves the right to amend the Subscription Plans and/or Subscription Term at any time or introduce new fees and/or subscription levels or charges. Kortical will provide Customer with thirty (30) calendar days’ written notice in advance during which a Customer will have the right to unsubscribe from or change its current Subscription Plan should a Customer not agree with these amendments.
- Subscription Term and Renewal
Trial Period. The duration of the trial period is specified during the Account creation process. At the end of the trial period, the Customer will be prompted to enter its payment details if it has not already done so. If the Customer has already updated its payment details, a Customer’s credit card will be automatically charged on the displayed billing date on the billing section associated to the Customer Account on the Kortical website.
Renewal Term. Unless a Customer gives Kortical at least 30 days notice in writing before the end of the conclusion of a Customer’s current Subscription Term (or any subsequent Renewal Term) that it does not intend to renew a subscription, it will be enrolled into an automatic renewing cycle for the same term at the conclusion of the Subscription Term (the “Renewal Term”). This applies to all Subscription Plans involving payment, and works the same for both monthly and annual renewals. Any written notice of the Customer’s intention not to renew shall be provided to the following email address: firstname.lastname@example.org. The email must come from the registered Kortical Account owner.
Termination with Cause. Either Kortical or a Customer may terminate this Agreement for cause as a result a material breach by the other party of the terms hereof in this Agreement, if the defaulting party fails to cure such material breach within fifteen (15) calendar days of its receipt of written notice of the breach from the non-defaulting party. In addition, Kortical may immediately terminate this Agreement if a Customer: (i) terminates its business activities or become insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; (iv) becomes subject to direct control of a trustee, receiver or similar authority; or (v) does not pay the fees when due in accordance with a Subscription Plan. In the event this Agreement is terminated for cause due to a Customer’s uncured material breach, Customer agrees, without limiting any of Kortical’s other rights or remedies, to pay all remaining fees payable through the remainder of the Term.
Refund upon Termination by Customer with Cause. In the event this Agreement is terminated for cause by a Customer due to Kortical’s uncured material breach, a Customer shall be entitled to a pro rata refund of all fees previously advanced to Kortical from the date of the termination through the end of the Subscription Term.
Termination without Cause. Customer may terminate this Agreement by requesting its Account to be deactivated and deleted by emailing email@example.com. For the avoidance of doubt, termination on this basis will be subject to subscription payments as set out in clause 7. Kortical may also terminate this Agreement without cause at any time. Kortical shall notify Customer via email to Customer’s registered email account if Kortical terminates this Agreement. Customer’s obligation to pay accrued charges and fees accrued up to the date of termination shall survive any termination of this Agreement.
Survival. The provisions of paragraphs 3, 4, 8, 9, 10, 11, 12 and 13 shall survive such termination of this Agreement.
- Data Retention. Kortical commits to securely storing data on behalf of a Customer in accordance with its Subscription Plan and timeframes corresponding to each Subscription Plan. All data exceeding the stated timeframe will be routinely and automatically deleted from Kortical’s systems.
- Warranties. Kortical warrants as at the date of subscription that the Services substantially conform to the functional description for such Services set out on the relevant product page on Kortical's website. In the event of a breach of such warranty, the Customer shall notify Kortical and give Kortical a reasonable time to fix the problem. If Kortical is able to do this within a reasonable time, this shall be the Customer's sole and exclusive remedy in relation to such breach. Except as expressly set out in this Agreement no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Services or to anything supplied or provided by Kortical under this Agreement. In particular, Kortical does not warrant that the operation of the Services will be uninterrupted, contaminant-free or error-free, or that they will meet the Customer's requirements. The Customer acknowledges that the Services are cloud dependent and that any failure of a 3rd party service or software is outside of Kortical’s control and not Kortical’s responsibility.
- Liability. Nothing in this Agreement limits or excludes either party's liability (i) for death or personal injury caused by its negligence; (ii) for fraudulent misrepresentation or for any other fraudulent act or omission; (iii) to pay sums due and owing to the other in the normal course of performance of this Agreement; or (iv) for any other liability which cannot lawfully be excluded or limited.
- Exclusion of Liability. Subject to paragraph 11: (i) Kortical shall not be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (1) loss of profit; (2) loss of sales, turnover, revenue or business; (3) loss of customers, contracts or opportunity; (4) loss of or damage to reputation or goodwill; (5) loss of anticipated savings; (6) loss of any software or data; (7) loss of use of hardware, software or data; (8) loss or waste of management or other staff time; or (9) indirect, consequential or special loss; arising out of or relating to this Agreement; and (ii) Kortical's total liability arising out of or relating to this Agreement or its subject matter or to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited to 50% of all fees paid by the Customer to Kortical in the preceding 12 month period.
- Confidentiality. With respect to all information of a confidential or proprietary nature which a party receives or obtains from the other party (but excluding information which: (a) is available to the public other than due to any breach of this Agreement; or (b) is, when it is supplied, already known to, or thereafter independently comes into the possession of, the other party in circumstances in which they are not prevented from disclosing it to others) ("Confidential Information") and including the terms of this Agreement, (in each case regardless of the form or manner in which it is received or obtained), the receiving party shall (i) keep confidential all Confidential Information of the other party; (ii) apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than reasonable care; (iii) only use such Confidential Information of the other party as strictly necessary for the performance of, or exercise of its rights under, this Agreement; (iv) not disclose such Confidential Information of the other party to any third party; and (v) promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all such Confidential Information. Either party may disclose the other's Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
- Data Processing. Data Controller and Processor. With respect to the parties' rights and obligations under this Agreement, the parties acknowledge that the Customer is the data controller and Kortical is the data processor of any personal data that is processed by or on behalf of Kortical in the course of performing its obligations under this Agreement ("Customer Personal Data") and that Kortical will only process data in accordance with written instructions from the Customer from time to time unless required to process the Customer Personal Data for any other purpose by applicable laws of the UK, the European Union or other EU Member State to which Kortical is subject (“Data Protection Legislation”), in which case, where legally permitted, Kortical must inform Customer of this legal requirement before processing.
Technical and Organisational Measures. Kortical will implement appropriate technical and organisational measures to protect Customer Personal Data against accidental or unlawful processing, loss, destruction, damage, alteration, or unauthorised disclosure or access, including the measures taken in accordance with the Data Protection Legislation, and including so as to allow the Customer to comply with its obligations under the Data Protection Legislation.
Confidentiality. Kortical will ensure that any staff or personnel (including Kortical Personnel) authorised to process the Customer Personal Data are subject to a binding duty of confidentiality in respect of such data;
Assistance. At the Customer's cost, Kortical will provide such information and such assistance to the Customer as Customer may reasonably require, and within the timescales reasonably specified by Customer, to allow the Customer to comply with its obligations under the Data Protection Legislation, including assisting the Customer to: discharge its obligations to respond to requests for exercising data subjects’ rights; and carry out privacy impact assessments and audit privacy impact assessment compliance.
Sub-processors. Kortical may disclose Personal Information only to those of its employees and third-party organisations that (1) need to know such information in order to process it on Kortical’s behalf or to provide services as described above, and (2) have agreed not to disclose it to any other parties without Kortical’s consent. Some of those employees, contractors and affiliated organisations may be located outside of your home country; by using the Site and/or the Service, you consent to the transfer of information to such individuals and organisations in order to accomplish these purposes.
Transfer outside UK/EEA. To the extent that Kortical transfers information outside the United Kingdom or the EEA, as applicable under applicable Data Protection Legislation, and to the extent that this transfer is not to a country in respect of which a valid adequacy decision has been issued by the European Commission or adequacy determined in another valid method under applicable Data Protection Legislation, Kortical agrees to comply with the obligations of a data importer as set out in the Standard Contractual Clauses for the transfer of personal data to data processors established in third countries adopted by the European Commission decision of 5 February 2010, published under document number C(2010) 593 2010/87/EU (the 'Standard Contractual Clauses').
Adequacy Decision. In the event that the Adequacy Decision granted in respect of the Standard Contractual Clauses is invalidated or suspended, or any supervisory authority requires transfers of personal data pursuant to such Standard Contractual Clauses to be suspended, then Customer may, at its discretion, immediately require Kortical to: cease data transfers immediately, and implement an alternative adequacy mechanism (as authorised in writing by Customer); or return all Customer Personal Data previously transferred, and ensure that a senior officer or director of Kortical certifies to Customer that this has been done.
Retention of Data. Kortical must not retain any of the Customer Personal Data for longer than is necessary to perform its obligations under this Agreement and upon Customer's reasonable request and/or following termination of this Agreement, securely destroy or return all Customer Personal Data, and delete existing copies of the Customer Personal Data except to the extent that the applicable laws of the UK, the European Union or other EU Member State to which Kortical is subject requires continued storage of the Customer Personal Data.
- Announcements. Unless the Customer specifically withdraws its consent to this clause by sending an email to firstname.lastname@example.org, the Customer hereby acknowledges and consents to Kortical making use of any of the Customer’s marks, logos and trade names to identify the Customer as Kortical’s user/customer on Kortical’s website and/or Services, in addition to any other marketing material.
- Term. This Agreement shall automatically terminate at the end of a Trial Period, Subscription Term or Renewal Term as relevant.
- Notices. All notices relating to this Agreement must be sent by recorded delivery to the address of the recipient set out above.
- General. The Customer may not assign or otherwise transfer this Agreement in whole or in part without the prior written consent of Kortical. Kortical may assign its rights and/or obligations under this Agreement upon written notice to the Customer. This Agreement may be amended only in writing signed by Kortical and the Customer. This Agreement does not create any right enforceable by any person who is not a party to it. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that (or any other) right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that (or any other (right or remedy). If any provision of this Agreement is or becomes invalid or unenforceable, in whole or in part, that provision shall apply with such deletions as may be necessary to make it valid, and the validity and enforceability of the other provisions of this Agreement shall not be affected. This Agreement contains the entire agreement between Kortical and the Customer relating to the Services and supersedes any previous agreements or undertakings. No terms or conditions shall form part of any agreement between Kortical and the Customer except those in this Agreement. This Agreement is governed by English law. Both parties submit to the non-exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Agreement or its subject matter.