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PARTIES
1. CULTUREAI LTD, English company number 09671771 with registered office at 27 Old Gloucester St, Holborn, London WC1N 3AX (CultureAI); and
2. COMPANY, company number ·company number with registered office at ·address (Partner).
INTRODUCTION
This agreement governs the relationship between CultureAI and Partner with respect to Partner's marketing and sale of subscriptions to the platform. It is not for partners who are managed service providers and that relationship is covered by a separate agreement.
AGREED TERMS
1. Introduction
1.1 Definitions. In this agreement the following words have the meanings given below:
client is an entity that signs an order form for the platform;
data protection laws are applicable data protection laws, including (without limitation) (i) the Data Protection Act 2018 (DPA), the United Kingdom General Data Protection Regulation as defined in section 3(10) and 205(4) of the DPA, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any successor or amending legislation from time to time, and (ii) the California Consumer Privacy Act of 2018, California Civil Code § 1798.100 et seq., as amended by the California Privacy Rights Act and any successor or amending legislation from time to time;
EULA is the license agreement between CultureAI and a client setting out the terms on which the client may use the platform;
fees are the fees set out in a Partner quote or purchase order (as applicable) to be paid by Partner to CultureAI for a client;
order form is the form signed by a client incorporating the EULA and setting out the platform to which client is subscribing and the number of permitted users;
partner discount is the percentage discount to CultureAI's list price for the platform as set out in a Partner quote or purchase order (as applicable);
permitted users are employees, contractors and other personnel of client permitted to use the platform in accordance with a EULA;
platform is the CultureAI AI Usage Control Platform, provided on a software as a service basis;
purchase order is a document which may be provided by Partner to CultureAI confirming a Partner quote agreed between CultureAI and Partner;
Partner quote is a document provided by CultureAI setting out: (i) the client and number of permitted users, (ii) the applicable list price, any discount thereto, partner discount and fees payable by Partner to CultureAI; and
VAT is UK Value Added Tax.
1.2 Interpretation. The terms of this agreement take precedence in the event of any conflict with a Partner quote or purchase order unless the Partner quote or purchase order expressly provides otherwise. In the event of any conflict between a Partner quote and a purchase order the Partner quote shall take precedence.
2. Scope
2.1 Term. This agreement shall begin on the date it is signed by Partner and continue for an initial term of 12 months, after which it shall automatically renew for successive of 12 month periods unless terminated earlier in accordance with clause 7 (Termination).
2.2 Permission. Subject to clause 2.3 (Limitations), CultureAI grants Partner a non-exclusive, non-transferable and non-sublicensable licence to market and sell subscriptions to the platform to prospective clients.
2.3 Limitations. The following limitations apply to the licence in clause 2.2 (Permission) above:
(a) all intellectual property rights in the platforms remain with CultureAI and Partner does not acquire any rights therein save as expressly granted pursuant to this agreement;
(b) Partner has no authority to enter into legally binding arrangements on behalf of CultureAI and shall not convey the impression that it is so authorised;
(c) Partner shall not market the platform with any other platform and only market the platform using materials approved by CultureAI and not make any representation, warranty or other promise concerning the platform unless already in such materials or approved by CultureAI in writing in advance; and
(d) CultureAI has complete discretion to reject a potential client (e.g. for security reasons, potential reputational damage, trade restrictions or existing separate discussions with them) but does not envisage doing so without reasonable grounds and will, in any event, notify Partner promptly of its decision.
2.4 Warranty. To the extent permitted by law, all warranties implied by statute, common law or otherwise are excluded from this agreement.
3. Marketing
3.1 Obligations. Partner shall:
(a) use reasonable endeavours to market and sell subscriptions to the platform to potential clients;
(b) act in good faith towards CultureAI and clients and use reasonable skill, care and diligence when performing its obligations under this agreement;
(c) act on the reasonable and lawful instructions of CultureAI and co-operate with CultureAI in all matters relating to this agreement including providing such information as CultureAI may reasonably request in a timely manner; and
(d) not conduct its business or any dealings with third parties in any manner which is likely to have a negative impact on the goodwill or reputation of CultureAI or do, permit or omit to do anything which in the reasonable opinion of CultureAI is prejudicial to marketing or sale of subscriptions to the platform.
3.2 Sub-Partners. Partner shall not market the platform through a sales agent or sub-Partners unless approved by CultureAI in writing in advance. Where CultureAI agrees to such appointment, Partner shall: (i) enter into a written contract with such sales agent or sub-Partner on terms which provide at least the same level of protection to CultureAI as provided by this agreement, and (ii) remain liable to CultureAI for the acts and omissions of such third party as if they were its own.
3.3 Management. The parties may each appoint a representative to meet to review client feedback, sales pipeline, channel conflicts and any other matters arising in connection with this agreement.
4. Engagement
4.1 Clients. Where a potential client has expressed interest in the platform, Partner will register the potential deal and notify CultureAI as soon as reasonably practicable, providing sufficient details for CultureAI to determine whether it would be prepared to provide the platform to such client.
4.2 Process. On CultureAI’s confirmation that it would accept a client proposed by Partner, CultureAI will provide Partner with a draft Partner quote for that client. Once the terms of the Partner quote have been agreed between CultureAI and Partner, Partner will:
(a) provide the client with a link to the EULA;
(b) once the EULA has been agreed between CultureAI and the client, either (i) confirm to CultureAI in writing that it is making a legally binding order on the terms of the Partner quote or (ii) provide CultureAI with a separate purchase order reflecting or confirming those terms, which shall be considered legally binding. CultureAI shall then provide Partner with a completed client order form and EULA.
4.3 Client fees. The fees payable by a client to Partner for access to and use of the platform may be determined solely between Partner and the client.
4.4 Upgrades. Where a client has asked to add modules or increase the number of permitted users, CultureAI shall provide Partner with a draft Partner quote for that client setting out additional fees payable by Partner and CultureAI and Partner shall follow the process set out in clause 4.2 (Process) to finalise.
4.5 Monitoring. CultureAI may monitor a client’s use of the platform to ensure it is complying with any usage restrictions. If a client breaches usage restrictions, CultureAI shall notify Partner and be entitled to raise an invoice for additional fees that apply which shall be payable by Partner in accordance with clause 6.1 (Fees).
4.6 Personal data. Each party shall process personal data under this agreement in compliance with data protection laws with each acting as a controller (whether on a joint or independent basis). In this clause the terms personal data, processing and controller have the meanings given to them in the data protection laws.
5. Partner benefits
5.1 Tiers. Partner shall be allocated a tier depending upon the annualised revenue they generate for CultureAI and other criteria set out in Part A of Schedule 1 (Partner Tiers and Benefits).
5.2 Benefits. Partner will be entitled to the benefits set out in Part B of Schedule 1 (Partner Tiers and Benefits) according to their tier.
6. Fees
6.1 Fees. Partner will pay CultureAI the fees set out in each Partner quote or purchase order (as applicable). Neither party shall be responsible for any expenses incurred by the other party unless agreed in writing.
6.2 Invoices. CultureAI will invoice Partner with respect to a client, initially on receiving a signed EULA from that client and then annually in advance. Partner will pay any undisputed invoice within 60 days of receipt (even where the client has not paid fees due to Partner for its subscription to the platform). Interest will accrue on undisputed late payments at 5% above the then Bank of England base rate.
6.3 Taxes. Fees do not include any taxes, withholdings or duties of any nature (including without limitation, VAT or other sales taxes) that may be assessed at any time in connection with the platform. Partner is responsible for paying any such taxes.
6.4 Refunds and Service Credits. Partner shall enjoy the benefit of any refund payable or service credit awarded by CultureAI pursuant to a client's EULA as if they were the client.
6.5 Updates. CultureAI sets its Partner fees based on its list price for platform modules as modified by any list price discount and an agreed partner discount. The list price and pricing structures may be updated by CultureAI from time to time in its complete discretion and Partner will be given at least 30 days’ notice of such changes. A standard partner discount will be agreed with Partner but a lower or higher partner discount may apply in certain limited circumstances for specific clients where agreed in a separate Partner quote or purchase order. Updated list prices shall automatically apply with respect to clients subscribing after such updates and with respect to existing clients on renewal of their subscriptions with Partner.
7. Termination
7.1 Immediate. A party may terminate this agreement immediately by giving written notice to the other if: (i) the other materially breaches it and (if capable of remedy) does not remedy the breach within 14 days or (ii) the other is, or appears likely to be, unable to pay its debts or become insolvent.
7.2 On notice. Either party may terminate this agreement at any time on 30 days’ prior written notice.
7.3 Consequences. Upon termination or expiration of this agreement:
(a) Partner's permission to market and sell subscriptions to the platform shall end and it shall cease all such activities relating to the platform;
(b) each EULA then in force between CultureAI and a client shall continue until it expires or is terminated in accordance with its terms – and until that time Partner shall seek to minimise any disruption to clients and continue to pay fees in accordance with clause 6.1 (Fees); and
(c) on termination or expiry of such EULA, Partner shall assist clients to renew their subscription to their chosen platform directly with CultureAI.
7.4 Survival. All obligations or liabilities accruing prior to termination or expiration of this agreement shall survive such termination or expiration and any clause that is meant to continue thereafter will do so, including but not limited to clauses 7.3 (Consequences), 8 (Liability) and 9 (General).
8. Liability
8.1 Capped liability. Subject to clauses 8.2 (Unlimited liability) and 8.3 (Specific exclusions), each party’s total liability arising out of or in connection with this agreement (including but not limited to negligence or breach of statutory duty) in any year is limited to (i) where such liability relates to a particular client, the fees payable to CultureAI in such year with respect to such client, and otherwise (ii) £10,000.
8.2 Unlimited liability. Nothing in this agreement will limit a party’s liability for: (i) death or personal injury caused by that party’s negligence, (ii) fraud, (iii) wilful misconduct, (iv) gross negligence or (iii) anything else that cannot by law be limited.
8.3 Specific exclusions. Subject to clause 8.2 (Unlimited liability), neither party will be liable for any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable, including loss of profit, business or goodwill or loss of or corruption of data.
8.4 Matters beyond reasonable control. Save for Partner's payment obligations hereunder, neither party will be liable to the other if it fails to meet its obligations due to matters beyond its reasonable control.
9. General
9.1 Scope of agreement. This agreement forms the entire agreement between the parties in relation to its subject matter. It replaces any earlier agreements, representations, proposals and discussions. Subject to clause 8.2 (Unlimited liability) neither party is liable to the other (whether for negligence or otherwise) for a representation that is not in this agreement. If any provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the remainder.
9.2 Parties and changes. In performing this agreement, each party acts as an independent contractor and neither shall act as agent or partner of the other. A person who is not party to this agreement has no rights to enforce it and their consent is not required to vary or rescind it. Changes to this agreement will be effective only when agreed in writing by the parties. Neither party may assign, transfer or deal with its rights under this agreement without the other's prior written consent, not to be unreasonably withheld.
9.3 Confidential information. The parties shall each use the other’s confidential information solely for the purpose of this agreement and not disclose it except where required by law or regulation.
9.4 Waiver. No failure or delay by a party to exercise any right will constitute a waiver of that right nor restrict the further exercise of that right. No single or partial exercise of any right will restrict the further exercise of that or any other right.
9.5 Law and jurisdiction. This agreement and any dispute arising from it, whether contractual or not, will be governed by English law and be subject to the exclusive jurisdiction of the English courts, unless the Partner is a company incorporated in a state of the United States of America, in which case the laws of the State of New York shall govern (without giving effect to the principles of conflicts of law) and be subject to the exclusive jurisdiction of the New York courts (and the provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this agreement or any transactions hereunder).
Schedule 1: Partner Tiers and Benefits
Part A – Entry Requirements
Part B – Benefits
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