Terms and Conditions
Last updated: Jul 12, 2023
1. INTRODUCTION
1.1 Mindset has developed certain software modules which allow customers to configure mobile or web applications or Products (as further defined below) which their Authorised Users (defined below) can further access, customise and make available to the Customer’s End-Users through app stores or otherwise via browser (as a service) (the Subscription Services). Those Subscription Services, the resulting Products and the related Documents are described as the Deliverables below.
1.2 This page sets out the general customer terms (General Terms) which apply to those Deliverables which Mindset (as defined below) licences or provides to any Customer (as defined below), unless Customer has entered into a separate written contract with Mindset signed by both parties in respect of the Deliverables.
1.3 The parties’ agreement for the licensing, use and provision of the Deliverables is made up of (i) these General Terms; (ii) the Proposal; and (iii) any other written document either issued by Mindset (and expressly referring to and incorporating itself into the agreement) or any amendments or supplements to the agreement signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.4 When construing the meaning of the Agreement, the documents listed in clause 1.3 shall be interpreted in reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.
1.5 Any order placed by Customer shall only be deemed to be accepted upon Mindset’s signature of, or email agreement to, the Proposal, at which point and on which date the Agreement shall come into existence.
1.6 These General Terms are published on Mindset’s website. Customer should print or save a copy of these General Terms for its records. Mindset may amend these General Terms from time to time during the Term and will endeavour to provide Customer with thirty (30) days’ notice before making the change effective when it does so. Every time Customer agrees a new Proposal with Mindset it should check these General Terms to ensure that it understands the terms which will apply to the Agreement at that time. This version of these General Terms was most recently updated on July 2023. Historic versions may be obtained by contacting Mindset.
1.7 Any Proposal issued by Mindset shall be valid for a period of 30 days (or such longer period specified on the Proposal) from the date of issue, if not agreed by Customer, at which point the offer outlined in the Proposal shall lapse.
2. INTERPRETATION
2.1 In the Agreement the following definitions and rules of interpretation shall apply:
Affiliate means in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time;
Agreement has the meaning given to it in clause 1.3;
AULA means Mindset’s standard Authorised User licence agreement which all Authorised Users are required to sign up to before beginning to use the Deliverables, available here;
Authorised Users means those employees and agents of, and independent contractors providing services to, the Customer and its Affiliates only, who are authorised by the Customer to use the Subscription Services, the Products and the Documents, including features allowing for customisation of the end Product, who have agreed to the terms of the AULA;
Beta Deliverables means any Subscription Service or Product feature identified as a beta, preview, early access or similar. These may be offered as Free Deliverables;
Business Day means any day which is not a Saturday, Sunday, bank or public holiday in England or the jurisdiction in which Customer is incorporated;
Commencement Date means the date specified in the Proposal;
Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information (whether or not of commercial value) known and belonging to that party and concerning its business, suppliers, customers, products or services (including without limitation, in Mindset’s case, the Deliverables, any product or feature plans, and the pricing offered by Mindset) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party;
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures each have the meaning given to them in relevant UK Data Protection Law;
Charges means the applicable charges for the Deliverables from time to time, including the Professional Services Charges and the Subscription Charges;
Customer means the organisation which has purchased access to the Subscription Services from Mindset, as specified in the Proposal;
Customer Data means the data, content and images inputted by the Authorised Users or (if applicable) Mindset (or its sub-contractors) on Customer’s behalf for the purpose of facilitating Customer’s or its Authorised Users’ use of the Subscription Services or configuration of the Product, together with any other information collected by or through the Product once launched (including End User information). As between Mindset and the Customer any Customer Data shall be deemed to be the Confidential Information of the Customer where it is not uploaded or disclosed in a manner that contemplates it being made available or viewable by third parties (other than Customer’s Authorised Users), reflecting that the Product will typically be made available on a public app store or deployed via web app;
Customer Equipment means, in respect of the Subscription Services, a functioning hardware system and software facilitating access to the following modern and high usage web browsers, namely: Chrome, Mozilla, Firefox, Safari or MS Edge, for the current and previous version of each such browser, and internet access, or such other relevant software and/or hardware reasonably notified to Customer by Mindset from time to time, and in respect of the Product, a modern functioning mobile or tablet device capable of running applications, access to the Apple or Android application store, or a modern functioning hardware system and software facilitating Customer’s access to the relevant application store, and internet access, or, in each case, such other relevant software and/or hardware reasonably notified to Customer by Mindset from time to time;
Data Processing Terms means Mindset’s Data Processing Terms available here;
Data Protection Law means all applicable data protection and privacy law in force from time to time in the UK or the other jurisdiction in which Customer is based, including, to the extent applicable, the UK or EU General Data Protection Regulation (GDPR);
Deliverables has the meaning given to it in clause 1.1;
Documents means all manuals or guides and other written materials that Mindset provides in relation to the Products and Subscription Services whether in printed or electronic form;
End Users means the Customer’s customers, their employees or other authorised users, who may wish to download and use the Product;
EULA means the Customer’s end-user licence agreement which all End Users are required to sign up to before downloading and using the finished Product, which must include Mindset’s minimum terms for an End User EULA, available here;
Free Deliverable means any Deliverable that is provided without a charge;
Feedback means any ideas, know-how, algorithms, code contributions, suggestions, enhancement requests, recommendations or any other feedback on Mindset Deliverables;
Field of Use means the field of use specified in the Proposal;
General Terms has the meaning given to it in clause 1.1;
Go Live Date means the earlier of (a) the date when the Implementation Services have been delivered and Mindset confirms to the Customer the Product is finished, ready to use in an operational (i.e. non test or training) environment or instance and for End Users to download and access; (b) the date on which the Customer first uses or deploys the Product in an operational environment; or (c) the date falling within the Longstop Date from the Commencement Date, unless the failure to achieve the Go Live Date was directly and solely caused by the failure of Mindset to comply with its obligations regarding the Implementation Services under the Agreement;
Implementation Services means the implementation services and/or deliverables to be provided by Mindset to assist the Customer in development of the finalised Product and set up of the Subscription Services, as described in the applicable Proposal;
Information Security Policy or ISP means Mindset’s information security policy setting out how it will safeguard the Customer Data hosted by Mindset via the Subscription Services, and the applicable security standards for the underlying Product and Subscription Service architecture, from time to time available here;
Initial Subscription Term means the initial subscription term, specified in the Proposal which period shall commence from the Go Live Date;
IPR means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same including, without limitation, copyright, database rights, design rights, patents, trademarks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information;
Licence Restrictions means the licence restrictions specified or referred to in the Proposal or elsewhere in the Agreement;
Longstop Date means the date specified in the Proposal;
Mindset means Mindset AI Ltd (company number 12318480) of 9a burroughs gardens, London, NW4 4AU;
Open-Source Software means any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (http://www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), or anything similar, included or used in, or in the development of, the Software, or with which the Software is compiled or to which it is linked;
Payment Terms means the payment terms set out in the Proposal. If none are specified the default payment terms shall require payment of any Professional Services Charges for Implementation Services in full in advance, on demand, any Subscription Charges in full in advance of the relevant Subscription Term or Renewal Period, on demand, and payment for any other Professional Services monthly in arrears;
Products includes each or all of, as applicable, the software application customised by you using Mindset’s software code modules (the App), and the online App workflow layer via which the App accesses the Mindset API and Mindset MAE server (and the Subscription Services offered thereby) (the Mindset Platform), and which includes any general upgrades pertinent to any iterations of the Product released to all customers to which Customer is otherwise entitled under the terms of the Agreement;
Purpose means accessing and using the Subscription Services to tailor a Product for the Customer’s and its Affiliates internal business purposes, within the Field of Use, to facilitate downloading and use of that Product by End Users, working within the framework offered by the Subscription Services, and otherwise making use of any of the functionality offered by the Subscription Services and Products (including that contemplated within the Documents) for their functionally contemplated purposes only;
Privacy Policy means Mindset’s privacy and cookies notice and policy, available here;
Professional Services means any bespoke professional services to be provided by Mindset to Customer (as agreed from time to time or set out in the Proposal), other than the Subscription Services or basic Support, including for example, Implementation Services or specifically requested Professional Services (for example, facilitating bespoke Authorised User training, or bespoke Product development);
Professional Services Charges means the service charges detailed in the Proposal for any Professional Services, or which Mindset confirms to the Customer from time to time in respect of any further agreed Professional Services;
Product Expert means a product expert or power user designated by the Customer, the number of which will be specified in the Proposal;
Proposal means the written quotation for, among other things, licensing and provision of the Deliverables, provided by Mindset to Customer;
Regulatory Authority means any competent authority in any country or region;
Regulated Activity means any product or service Customer or its Affiliates may provide, or any activity they may engage in, which is relevant to the Product, and which is regulated by particular law in any jurisdiction;
Renewal Period means rolling terms of the same duration as the Initial Subscription Term (or such other period as Mindset may agree in writing with Customer in the Proposal);
Retail Prices Index means the index of that name published by the UK Office of National Statistics, or such successor body or successor index as shall apply from time to time in future (so as to most closely mirror that index);
Sensitive Information means credit or debit card numbers; personal financial account information; national insurance or social security numbers or equivalents; passport numbers; driver’s licence numbers or similar identifiers; passwords; details of racial or ethnic origin; physical or mental health condition or information; or other financial or health information, including any information defined under the UK Data Protection Legislation as ‘Sensitive Personal Data’ (or any analogous term which may apply from time to time), or any information subject to the US Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information as amended or applicable worldwide from time to time;
Services means both the Subscription Services and any Professional Services;
Source Code Materials means the source code of the last available version of the Product and all technical information and documents generally maintained by Mindset with respect to such source code;
Subscription Charges means the total amounts specified in the Proposal from time to time or otherwise payable in accordance with the terms of the Agreement, to be paid in accordance with the timeframes and other stipulations set out in the Agreement;
Subscription Services means hosting and provision of the Mindset API and Mindset MAE server, which can be accessed through the Product or otherwise via the Product workflow layer (either by downloading the mobile App or through the Subscription Services), which enable the Customer to create, develop and maintain the Product within the Field of Use and for the Purpose, and facilitate the hosting of Customer Data by Mindset;
and making it available for access on a software as a service basis to Authorised Users using Customer Equipment via the relevant hosted URL;
Subscription Term means the term beginning on the Commencement Date, and continuing for the Initial Subscription Term, and any Renewal Periods (subject to clause 12.3), unless and until the Agreement is terminated in accordance with its terms;
Support means the second line support services to be provided by Mindset to each nominated Product Expert, for the relevant Subscription Term, and made available through the Product’s / Subscription Services’ designated support ticket system only, as further detailed in Mindset’s SLA;
SLA means Mindset’s standard service level agreement available here;
Term means the term of the Agreement as defined in clause 15.1;
Unused Portion means, in respect of any period of the Subscription Term for which Customer has made a payment in advance, the proportion which the number of days following lawful termination of the Agreement until the end of such remaining Subscription Term bears to the total number of days in that period;
User Licences means subscriptions allowing Authorised Users to access and use the Deliverables in accordance with the Agreement; and
Viruses means 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.
2.2 Clause headings shall not affect the interpretation of the Agreement. References to clauses are to the clauses of these General Terms.
2.3 Words in the singular shall include the plural and vice versa.
2.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.6 A reference to law includes any statute, statutory provision or subordinate legislation, case law, or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party.
2.7 A reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.8 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.9 A reference to any law, statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate law for the time being in force made under it.
2.10 A reference to writing or written includes email but not faxes.
3. ACCESS TO THE DELIVERABLES
3.1 Customer warrants and represents that any information provided to Mindset is complete, accurate and not misleading (including information provided as part of its account / Agreement setup process), that it will inform Mindset if at any time that information changes whilst Customer or its Authorised Users continue to use the Deliverables and acknowledges that Mindset may rely on such information and not seek to establish its reliability.
3.2 In particular, where Customer is or purports to represent an organisation or entity, the person entering into the Agreement on Customer’s behalf warrants and represents that it is entitled to act in this capacity and to bind such organisation or entity (which shall be correctly specified as Customer in the relevant Proposal), and perform all actions taken by Customer or its Authorised Users via the Deliverables, including uploading any Customer Data to Customer’s account / incorporating it into the Products (including making either available to other Authorised Users, or publicly available to third parties).
3.3 Customer acknowledges that subject to certain limitations, and any limitations set by any Customer accounts with specific privileges, Authorised Users have administrative control over their accounts and the Customer Data stored on the central Customer accounts, and also for populating relevant information within the Subscription Services and Customer shall have sole responsibility for supervision and observation of the actions of its Authorised Users and for setting appropriate privileges for each Authorised User.
3.4 Subject to payment and the other restrictions set out in the Agreement, Mindset hereby grants to Customer, subject to the Licence Restrictions a non-exclusive, non-transferable, worldwide right, during the Subscription Term, to: (a) permit the Authorised Users to use all relevant Deliverables for the Purpose (subject to Authorised User’s compliance with the AULA), and (b) to upload the completed Product (as further customised from time to time) to relevant app stores or other relevant platforms and facilitate the downloading of and access to Product by End Users (subject to End User’s compliance with the EULA).
3.5 In relation to the Authorised Users, Customer undertakes that: (a) it shall be responsible for compliance by (i) its Authorised Users with the terms of the AULA, (ii) its Affiliates with the relevant terms of the Agreement, and (iii) its End Users with Mindset’s minimum requirements for the EULA; (b) the Customer will not allow or suffer any User Licence, or End User account, to be used by more than one individual Authorised User or End User unless it has been reassigned in its entirety to another individual Authorised User or End User, in which case the prior Authorised User or End User shall no longer have any right to access or use the Deliverables or Product (as the case may be); (c) each Authorised User or End User shall keep a secure password for their use of the Subscription Services / Product, and that each Authorised User or End User shall keep his password confidential; and (d) all Authorised User or End Users shall meet the relevant definition of Authorised User or End User under these General Terms and other requirements at all times, including that they are accessing the Subscription Services and Product only for the Purpose, and it shall promptly disable the login details for any Authorised User or End User who has ceased to meet the relevant requirements.
3.6 Unless a specific Licence Restriction is specified in the Proposal, the Customer may issue an unlimited number of User Licences to Authorised Users via the Subscription Services or administrator Product account as long as it acts reasonably and in good faith. All Authorised Users must be using the Subscription Services for the Purpose. Mindset shall exercise its sole discretion in assessing whether the Customer has adhered to these restrictions. Customer may also permit an unlimited number of End Users to download and use the Product (once developed). Customer should also note that each Authorised User to whom it issues a User Licence, and each End User it permits to download and use the Product, may increase its total data and associated service usage and that it will be responsible for paying for any excess use charges (if any) according to clause 4.9 below. |Mindset reserves the right to disable any Authorised User accounts who have an account for the Product but have not logged onto it for 180 (one hundred and eighty) days or more.
3.7 Customer must not permit any of its Authorised Users or End Users to (a) be under the legal age to use the relevant Deliverables in the country the Authorised User or End User resides in (or whose laws apply to them); (b) share with or permit access to any Authorised User’s account by multiple people; (c) operate a service or automated account, where there is not a single human individual responsible for that account; or (d) otherwise in breach of its AULA or EULA (as applicable). If Mindset determines that there has been a breach of this clause, in addition to its other rights, it reserves the right to suspend or terminate the affected Authorised User or End User accounts, or the Agreement, as noted below.
3.8 Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription Services or Product (including as comprised in the Customer Data) that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and Mindset reserves the right, without liability to Customer, to disable Customer’s access to any material that breaches the provisions of this clause.
3.9 Customer shall not: (a) other than as permitted by law, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product or the software underlying the Subscription Services and/or the Documents (as applicable) in any form or media or by any means; nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Product or the software underlying the Subscription Services; or (b) access all or any part of the Subscription Services in order to build a product or service which competes with the Subscription Services; or (c) use the Subscription Services to provide services to third parties (other than as expressly permitted herein); or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services available to any third party except the Authorised Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided under this clause 3; or (f) interfere with or disrupt the integrity or performance of the Subscription Services or third party data contained therein; or (g) attempt to gain unauthorised access to the Subscription Services or their related systems or networks, including with a view to making alterations to, or modifications of, the whole or any part of the Product or other underlying software architecture, or permitting the or any part of it to be combined with, or become incorporated in, any other programs.
3.10 CUSTOMER AGREES NOT TO USE OR PERMIT ITS AUTHORISED USERS OR END USERS TO USE THE PRODUCT OR SUBSCRIPTION SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. MINDSET WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM CUSTOMER’S OR ITS AUTHORISED USERS OR END USERS USE OF THE SUBSCRIPTION SERVICES TO COLLECT OR MANAGE SENSITIVE INFORMATION.
3.11 Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Deliverables and, in the event of any such unauthorised access or use, promptly notify Mindset.
3.12 The rights provided under this clause 3 are granted to Customer only and shall not be considered granted to any subsidiary or holding company of Customer.
4. SERVICES
4.1 Mindset shall supply, during the Subscription Term, the Services to Customer on and subject to the terms of the Agreement.
4.2 Mindset’s approach to Implementation Services is based on shared project responsibility, resulting in a cooperative, hands-on project that is jointly managed by Mindset and Customer. In addition to the assumptions and requirements set forth elsewhere in the Agreement, Customer acknowledges and agrees that the above approach, Charges and agreed timelines set out in Proposal are based on the following assumptions (as applicable):
4.2.1 Customer will accurately complete all applicable questionnaires, templates, and other documents and requests for data as reasonably required for Mindset to fulfil its implementation roles and responsibilities, and including all image files, video files, text, audio files and functional flowcharts or other data for inclusion in or use by the Product, to the best of Customer’s knowledge, each in the manner reasonably prescribed by Mindset by the agreed upon timelines;
4.2.2 Customer will, where applicable, provide reasonable access to Customer’s personnel (Product Experts) with the appropriate knowledge of Customer’s systems and their configuration;
4.2.3 Any material changes to scope described in the Proposal will be addressed through a change request, if these have a material impact on costs;
4.2.4 Any configuration or test environment (including all data) may be (with prior notification) decommissioned after a period of sixty (60) days from the Go Live Date;
4.2.5 Customer will appoint relevant Product Experts who Mindset can train in use of the Subscription Services and customisation of the Product during project launch stage and will be available for the duration of the implementation phase (save for illness, absence, leave or departure from the Customer’s employment);
4.2.6 Customer will confirm acceptance for all Implementation Services and any finalised Product in a reasonably timely fashion and per any project schedule;
4.2.7 Customer’s Product Experts will complete training activities as outlined in any training curriculum provided by Mindset and per the project schedule prior to Go Live Date, following the instructions contained in the training materials; and
4.2.8 Customer will identify any import files or data streams (if applicable) by project kick-off. Any additional feed(s) identified thereafter may result in additional Charges.
4.3 For clarity, Mindset does not provide any Implementation Services other than those scoped in the Proposal, and any other services, for example, assistance with development or curation of content for the Product, training other than that specifically set out in the Proposal, or otherwise, shall be outside scope. Customer is responsible for reimbursing Mindset in full for any external resources requested or specified by Customer.
4.4 If Implementation Services are delayed at the request of Customer, or because of its acts or omissions, including failure to provide Customer Data within the required timeframes to permit Mindset to provide the Implementation Services or achieve Go Live within the target timeframes set out in the Proposal, Mindset shall be entitled to invoice Customer any remaining balance for the Implementation Services in accordance with the agreed Payment Terms notwithstanding such Customer delays. Additionally, if Mindset can demonstrate that the delays or failures have resulted in an increase in cost to Mindset of carrying out the Implementation Services, Mindset may notify Customer that it wishes to increase the relevant Professional Services Fees by an amount not exceeding any such demonstrable cost. Mindset may invoice Customer for any additional monies that become payable in this way, within 30 days of demonstrating the increase in costs. As noted in the definition of Go Live Date, Mindset may also treat the Go Live Date as having been achieved in such circumstances.
4.5 Customer acknowledges that Mindset shall make no effort to validate any data, information or Customer Data provided by Customer for content, correctness or usability. Use of any suggestions for or edits to Customer Data or other content for incorporation into the Product provided by Mindset to Customer as part of the Implementation Services or otherwise is at Customer’s risk and Mindset is not liable for the accuracy or quality of information obtained
4.6 The provision of the Subscription Services shall be subject to ongoing provision by Mindset’s hosting services provider from time to time. Mindset shall use reasonable endeavours to inform Customer in advance of any planned service interruption to the Subscription Services.
4.7 Mindset will, as part of the Services and at no additional cost to Customer other than the Subscription Charges, provide Customer with the Support in accordance with Mindset's SLA and any support services policies in effect at the time that the Services are provided, subject to fair usage of the Support by Customer. Mindset is a UK based company and typically deals with Support tickets between unless otherwise specified, during Mindset’s standard business hours (9am to 5pm UK time on Business Days), unless otherwise specified in the Proposal or SLA. For clarity, subject to fair usage, there are no limitations on the number of Support tickets or requests that may be raised by the Customer, provided that Customer’s nominated Product Experts must raise any Support tickets and must be available to interact with Mindset’s support team where they have any queries regarding a particular request, including to provide demonstrable or repeatable evidence of any alleged bugs or defects. Mindset provides second level Support only, and all initial End User or Authorised User queries must be triaged through Customer’s nominated Product Experts in the first instance. Customer shall procure that its Product Experts provide access to Mindset to relevant Authorised User or End User accounts (or other material which allows Mindset to accurately diagnose and resolve any issues) where required to provide remote Support. Mindset may also provide online support resources for Authorised Users. All Support shall be delivered remotely. Any support Services outside the above, including any on-Site support required by the Customer, shall be outside of scope and shall, if agreed between the parties, be chargeable at Mindset’s then prevailing standard daily or hourly rates as a Professional Service.
4.8 If the Customer wishes to request that a particular feature of the Product be improved or added at any time, to the extent the Customer’s Authorised Users are not able to customise this Product feature through the Subscription Services, the Customer’s Product Expert may request this, and this may be agreed and undertaken as a Professional Service, subject to agreement between the parties as to the nature of the request, timing and the charges for facilitating this request.
4.9 Unless otherwise specified in the Proposal, whilst Mindset does not, as a principle, typically impose seat or data based overage Subscription Charges, it reserves the right, acting in its reasonable discretion, to introduce fair usage limits, for example excessive or unusual token utilisation of underlying large language models utilised by the Product or excessive Customer Data storage, or where any third party service providers whose products or services Mindset resells as part of the Deliverables materially change their pricing, at the rates which Mindset will specify from time to time, either on Mindset’s website or otherwise. Mindset may modify these limits for the Subscription Services at any time in its reasonable discretion, giving notice to Customer. This includes a scenario where the Customer provides inaccurate or incomplete information to Mindset as part of the Agreement implementation, to the extent this results in Mindset quoting a figure for the Subscription Charges which reflects usage of the Product and Subscription Services materially different to that actually leveraged by the Customer.
5. WARRANTIES AND REPRESENTATIONS, AND MINDSET'S OBLIGATIONS
5.1 Each party represents and warrants to the other that it has the legal power and authority to enter into the Agreement (in the case of an individual representing a Customer, on that organisation or entity’s behalf), and that the Agreement and each Proposal is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of the Agreement, and that the Agreement or Proposal is accordingly binding upon each party and enforceable per its terms.
5.2 Mindset undertakes that the Services will be performed with reasonable skill and care expected of a suitably skilled person engaged in the same type of business as Mindset, that it will use reasonable endeavours to maintain the availability of the Product, and ensure it is free from any material defects in design or workmanship, during the Subscription Term (subject to downtime for planned maintenance or maintenance outside Mindset’s reasonable control), per any terms further detailed in the SLA (as applicable). Otherwise, Mindset gives no warranties concerning the Deliverables.
5.3 The undertaking at clause 5.2 shall not apply to the extent of any non-conformance which is caused by (a) use of the Deliverables contrary to Mindset's instructions or otherwise than as permitted by the Agreement, (b) modification or alteration of the Deliverables by any party other than Mindset or Mindset's duly authorised contractors or agents, (c) issues with Customer Equipment in this regard the Customer acknowledges it and its Authorised Users and End Users are responsible for ensuring that they have adequate functioning Customer Equipment permitting access to the Subscription Services or Product (as applicable)); (d) interaction of the Product or Subscription Services with other software programmes or plugins maintained by Customer; (e) use of the Product or Subscription Services in an application, or with any software, hardware or materials for which it was not intended; or (f) acts or omissions otherwise attributable to Customer and/or outside Mindset’s reasonable control. If Mindset does not meet the undertaking at clause 5.2, Mindset will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance within a reasonable timeframe or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 5.2. Notwithstanding the foregoing, Mindset does not warrant that Customer's, its End Users’ or Authorised Users’ use of the Deliverables will be uninterrupted or error-free, nor that the Deliverables will meet Customer's requirements (and Customer acknowledges that it has assessed the suitability of the Deliverables for such requirements).
5.4 From time to time, Mindset may automatically update or change the Product to improve performance, enhance functionality, reflect changes to the operating system or address security issues, and roll out upgrades through the relevant app store. If Customer’s End Users or Authorised Users choose not to install such updates or opt out of automatic updates they may not be able to continue using the Product, or it may operate with reduced functionality. Any such upgrades may generally impact the features and functionality of the Product, and Customer’s and its End Users or Authorised Users use of the same.
5.5 The Agreement shall not prevent Mindset 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.
5.6 Timing for the performance of Mindset’s obligations under the Agreement shall not be of the essence.
5.7 Mindset warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
6. CUSTOMER'S OBLIGATIONS
Customer shall: (a) at its cost, provide Mindset with all necessary co-operation in relation to the Agreement, and all necessary data and access to information as may be required by Mindset, its agents or contractors, in order to provide the Deliverables, including but not limited to applicable specifications, data management decisions, approvals, security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under the Agreement; (c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays, Mindset may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) obtain and shall maintain all necessary licences, consents, and permissions necessary for Mindset, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services; (e) ensure that its network and systems comply with the relevant specifications provided by Mindset from time to time; (f) be solely responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Customer Equipment; (g) provide a single main point of contact who can address questions or issues relating to the Services, provide timely feedback and review any changes to the Services; (h) be solely responsible at its own cost for generating Customer Data, content and data required to develop the Product, utilise the Subscription Services and uploading all such content and data using the Subscription Services. In the event that Customer requires any assistance from Mindset in this regard, beyond what is scoped as part of the Implementation Services, Mindset may provide such assistance as it deems appropriate at its then prevailing charges as a Professional Service; and (i) comply and procure the compliance of its Authorised Users with any reasonable directions given to it by Mindset from time to time.
7. THIRD PARTY SOFTWARE AND INTEGRATIONS AND OPEN SOURCE COMPONENTS
7.1 Additionally, Customer may use standalone third-party applications when accessing the Subscription Services or Product, for example where it uses applications that integrate with or export data feeds to the Subscription Services or use the Subscription Services to authenticate or access another service. While the Agreement represents our agreement with Customer, other parties’ terms govern their relationships. Whilst Mindset takes no responsibility for any End User’s, Authorised User’s or Customer’s adherence to such terms or the actions taken by such third-parties, Customer warrants and represents that it will honour and adhere to such terms when using the Subscription Services or Product and that Customer will not hold Mindset responsible for any interactions with such third parties or their services, sites or terms, including for wrongful or negligent acts or omissions, or breaches of contract.
7.2 When importing third-party data streams using the Subscription Services, the Customer warrants and represents that it shall ensure it uses industry-standard anti-virus technology and otherwise checks such data streams for any malicious code or content, including Customer Data which would breach the terms of the Agreement.
7.3 Mindset does not control the content, messages or information found in or on or accessible through any third party software, sites or services accessible through or integrated with the Subscription Services or Product. Mindset disclaims and will have no liability regarding such software, sites or services and any actions resulting from Customer’s or its Authorised Users’ or End Users’ use of the same. Such sites or services’ availability does not mean Mindset endorses, supports or warrants such sites or services.
7.4 Mindset shall not be responsible for any issues with the performance of any third-party applications, and their integration within and functioning through the Subscription Services or Product at all times is outside Mindset’s control and is not guaranteed. The third-party integrations supported by the Subscription Services or Product are not guaranteed, and may change from time to time.
8. CHARGES AND PAYMENT
8.1 Customer shall pay the Subscription Charges (and any Professional Service Charges, or other charges specified or agreed) to Mindset in accordance with the Payment Terms.
8.2 If Mindset has not received payment of any Charges within 10 days after the due date, or notice of a bona fide dispute, without prejudice to any other rights and remedies of Mindset: (a) Mindset may, without liability to Customer, disable Customer’s and any Authorised Users’ passwords, accounts and access to all or part of the Services and Mindset shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at annual rate equal to the higher of 8% per annum or 4% over the then current base lending rate of Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment, or the highest rate otherwise permitted by law.
8.3 If Customer is paying by credit card, direct debit or other online payment methods, it authorises Mindset to charge Customer’s credit card, bank account or other online payment methods for all fees payable during the Subscription Term. Customer further authorises Mindset to use a third party to process payments and consent to disclose Customer’s payment information to such a third party.
8.4 All amounts and fees stated or referred to in the Agreement: (a) shall be payable in the currency denominated in the Proposal; (b) are, subject to clause 15.6, non-cancellable and non-refundable; (c) are exclusive of taxes or duties payable under the Agreement as specified below, which shall be added to Mindset's invoice(s) at the appropriate rate; and (d) shall be paid by bank transfer in full and cleared funds to the account specified on Mindset’s invoice, or by such other payment method (which must be kept up to date and accurate) as Mindset may accept from time to time.
8.5 Customer is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Mindset’s net income or gross revenue) imposed or become due in connection with the provision of Services to Customer under the Agreement. If Customer is located in the EU, Customer must provide Mindset with the VAT registration number under which Customer is registered in Customer’s member state. If Customer does not give Mindset a VAT registration number before Customer’s transaction is processed, Mindset will not issue refunds or credits for any VAT charged.
8.6 If Customer is required to deduct or withhold any tax it must pay the amount deducted or withheld as required by law and pay Mindset an additional amount so that Mindset receives payment in full as if there were no deduction or withholding.
8.7 If, at any time whilst using the Deliverables, Customer exceeds the Licence Restrictions, Mindset shall charge Customer, and Customer shall pay, Mindset’s then prevailing charges for such excessive use.
8.8 Customer must keep its contact information, billing information and credit card information (where applicable) up to date through its account.
8.9 Mindset shall at the start of each Renewal Period, having given at least thirty (30) days prior notice to Customer (including via email or by notification within the Mindset™ platform), be entitled to increase the Subscription Charges and the Subscription Charges set out in Proposal shall be deemed to have been amended accordingly for the duration of the Renewal Period (unless the Customer objects to such increase within 14 (fourteen) days of notice from Mindset, in which case the Agreement may not renew into any Renewal Period unless the parties otherwise agree). If no notice is given, the Mindset may increase the Subscription Charges applicable over each subsequent Renewal Period by the percentage increase in the Retail Prices Index over the duration of the previous Initial Subscription Term or Renewal Period (as the case may be).
9. PROPRIETARY RIGHTS AND DATA
9.1 Customer acknowledges and agrees that Mindset and/or its licensors own all IPR in or arising from the Deliverables (save as noted explicitly below with respect to the Customer Data). All content on the Mindset’s site, the underlying copyright in the Product and Subscription Services (excluding any Customer Data integrated into the released Product as customised by Customer, as noted below) is copyright © Mindset AI Ltd or its licensors. The Mindset™ and Mindset AI™ names and brands, and all associated logos, are each unregistered trademarks of Mindset. All IPR in any interactivity data and analytic data Mindset obtains or derives based on the Product running on the Mindset platform is hereby assigned to Mindset.
9.2 Except as expressly stated herein, the Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software and its documentation. This shall be without prejudice to Customer’s ownership of any background IPR owned by it separately from the Agreement and/or pre-dating the Agreement.
9.3 Customer may not duplicate, copy, or reuse any portion of Mindset’s underlying software or trademarks, without Mindset’s express permission, save as permitted herein, provided that Customer may, if it wishes, note any link to Mindset’s involvement in Product development in the form of a banner on the Product home page, provided it does so fairly and legally and in a way that does not damage Mindset’s reputation or take advantage of it. Customer must not do so in such a way as to suggest any form of association, approval or endorsement on Mindset’s part where none exists. Mindset reserves the right to withdraw this permission. Any website on which Customer notes Mindset’s involvement, including the final Product as developed, must comply in all respects with the content standards set out in the Agreement and the AULA or EULA. If Customer wishes to use Mindset’s name, trademarks or other IPR other than that set out above or elsewhere in the Agreement, it must obtain Mindset’s prior written consent. The parties’ anticipation and expectation is that the finalised Product released to End Users will likely be white-labelled.
9.4 Customer or its licensors shall own all rights, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and the means by which it acquired such Customer Data, provided that Mindset shall have a lien over Customer Data in the event of non-payment of any Charges by Customer hereunder, and reserves the right to disable all access to the Customer Data in the event of non-payment as contemplated herein, and further that Mindset shall have a non-exclusive, perpetual, royalty-free, fully paid-up, worldwide, transferable and sub-licensable licence, to copy, modify, distribute, transmit, and process the Customer Data in an aggregated and non-identifiable form for its legitimate business purposes including for testing, development, controls and operations of the Product, and may share and retain such data at its discretion.
9.5 Mindset shall use reasonable endeavours to maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data, including in accordance with the Mindset’s ISP. However, Customer understands and acknowledges that use of the Subscription Services and Product necessarily involves the transmission of Customer Data over networks that are not owned, operated or controlled by Mindset, and that Mindset cannot be held responsible for any Customer Data lost, altered, intercepted or stored across such networks. Mindset does not guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorised third parties will never be able to defeat Mindset’s security measures or those of Mindset’s third-party service providers.
9.6 Mindset shall not modify Customer Data, disclose Customer Data or access Customer Data except (a) as required by law; (b) as expressly permitted by Customer; (c) to host the Product (as it is configured for public / End User access by Customer’s Authorised Users or at their instruction; (d) to address technical problems or issues with the Services; or (e) at Customer’s request when providing Support.
9.7 Neither Customer or any Authorised Users may access the Subscription Services or Product where they are engaged as an employee or contractor with any business that competes with Mindset own or to attempt to gain access to Mindset’s Confidential Information with a view to building, creating or amending any software or service which competes with any element of the Subscription Services or Product offered by Mindset. Further, during the Subscription Term, and for twelve (12) months thereafter, Customer shall not, or attempt to, build or develop any product or service that commercially competes with or is substantially similar to the Product or Subscription Services, which it provides or intends to provide to third parties for payment (i.e., which is not solely intended for the Customer’s internal use). This obligation shall cease to apply only where there is no longer a commercial relationship between the parties, and Customer can demonstrate that (a) an independent third party has licensed or sold any such competing software (or something similar to it) to it on arms’ length terms, and (b) such competing solutions do not incorporate or contain, are not based upon, and do not rely in any way upon any Confidential Information made available by Mindset to the Customer, or to which the Customer otherwise gained access, under the Agreement or any previous contract between the parties.
9.8 If Customer (including its Authorised Users) gives Mindset any Feedback, it acknowledges and agrees by accepting the Agreement that Mindset will have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual licence to implement, use, modify, commercially exploit or incorporate the Feedback into Mindset’s products, services, and documentation.
9.9 Mindset shall use its reasonable commercial endeavours to back up all Customer Data on a daily basis but otherwise backup of all Customer Data shall be the sole responsibility of Customer. In the event of any loss of or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Mindset to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Mindset. Customer should note that Mindset’s typical retention periods for Customer Data are as set out in its Privacy Policy.
9.10 Each party will comply with its obligations under the Data Processing Terms in respect of all processing by Mindset of Personal Data comprised in Customer Data and the other subject matter covered therein.
9.11 Customer acknowledges that it shall have no right to access the Source Code Materials in respect of the Product, or with unlocked coding or comments, and its access is limited to the downloading and accessing the Product in object code form.
10. CONFIDENTIALITY
10.1 Neither party will use the other’s Confidential Information except as permitted under the Agreement. Each party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as it uses for its information of a confidential and proprietary nature but in any event at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorised disclosure of the other party’s Confidential Information, including, without limitation, disclosing such Confidential Information strictly only to those of its or its Affiliates’ employees, representatives, consultants, contractors or agents (together Representatives) who need to know such information, are subject to restrictions around the use of such Confidential Information substantially similar to those set out in this clause. Each party shall be liable and responsible for its Representatives adherence to such terms. The preceding obligations will not restrict either party from disclosing Confidential Information of the other party under the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable such party to contest such order or requirement (to the extent permitted by law).
10.2 For the avoidance of doubt, Mindset considers Customer Data not publicly disclosed by Customer (including End User facing data incorporated into the final released Product) to be Customer’s Confidential Information and will protect and keep confidential such Confidential Information per this clause 10. Mindset may access and use such Confidential Information under the following circumstances (a) with Customer’s consent and knowledge, for support reasons; (b) if it has reason to believe such Confidential Information violates the law or of the Agreement (including the AULA or EULA in respect of a specific Authorised User’s or End User’s usage), in which case it reserves the right to access, review, and remove them; (c) where it is compelled by law to disclose Customer’s Confidential Information; or (d) when access is required for operational or security reasons, including when access is required to maintain ongoing confidentiality, integrity, availability and resilience of Mindset's Subscription Services or the Product (in which case access will be limited to specifically authorised personnel and only exercised to the extent necessary to facilitate such purposes).
10.3 Customer is responsible for managing access to its account for the Subscription Services, the Product and Customer Data stored thereon or incorporated therein, including invitations, administrative control, and access. Mindset is not responsible for the actions of any of Customer’s Authorised Users in this regard. Nor is Mindset responsible for any third party’s, End User’s or Authorised User’s adherence to any terms imposed by Customer as a pre-requisite for access to its Customer Data or Product (including the EULA).
10.4 In accessing the Subscription Services or Product, Customer and its Authorised Users may also gain access to information relating to Beta Deliverables which Mindset considers being Confidential Information, and Customer agrees on behalf of itself and its Authorised Users to protect and keep strictly confidential such Confidential Information per this clause 10.
11. NON-SOLICITION
11.1 During the Term and for 12 months thereafter, neither party, directly or indirectly, will solicit for employment or for engagement as an independent contractor, or encourage leaving its employment or engagement, any employee or independent contractor of the other party known to the soliciting party solely through the Agreement. In the event of any breach of this clause, the breaching party shall be liable to pay, by way of liquidated damages, an amount equal to ten times the gross annual salary, as at the time of the breach, of the employee concerned. This provision shall be without prejudice to the other party's right to seek injunctive relief.
12. INDEMNITY – CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Customer shall indemnify and hold harmless Mindset, and at Mindset’s option defend Mindset, against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with its and/or the Authorised Users’ use of the Deliverables including, without limitation, for any liability, damages, costs or claims incurred by Mindset due to Customer’s use of the Deliverables for any purpose outside of the Purpose, or in any field outside the Field of Use, or any claim relating to Customer Data, including, without limitation, any claim brought by a third party alleging that Customer Data, or Customer’s use of the Deliverables in breach of the Agreement infringes or misappropriates the IPR of a third party or violates applicable law, save to the extent directly attributable to Mindset’s breach of the Agreement.
12.2 Mindset shall, subject to the other provisions of this clause 12 and the limitations in clause 13, defend Customer against any claim that the Subscription Services or the underlying code provided by Mindset in respect of the Product (Mindset Content) infringes any third-party IPR and shall indemnify Customer for any amounts awarded by a court of competent jurisdiction against Customer in judgment or settlement of such claims, or agreed to by Mindset, provided that: (a) Mindset is given prompt notice of any such claim, together with all relevant details of the claim; (b) Customer provides reasonable co-operation to Mindset in the defence and settlement of such claim, at Mindset's expense; and (c) Mindset is given sole authority to defend or settle the claim, and Customer does not compromise, settle or admit liability with respect to any claim without Mindset’s prior written consent (not to be unreasonably withheld).
12.3 In the defence or settlement of any claim, Mindset may procure the right for Customer to continue using the Mindset Content, replace or modify the Mindset Content so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall Mindset, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on: (a) a modification of the Mindset Content by anyone other than Mindset or Mindset's authorised contractors or agents); (b) Customer's use of the Subscription Services or Product in a manner contrary to the instructions given to Customer by Mindset or Mindset's authorised contractors or agents; (c) Customer's use of the Subscription Services or Product after notice of the alleged or actual infringement from Mindset or any appropriate authority; (d) any element of the Mindset Content (or the Customer Data’s integration with same) not attributable to the Mindset (for example, Customer Data incorporated into, hosted on or displayed by the Product, or bespoke upgrades to the Product undertaken by Mindset at the Customer’s direction incorporating content provided by the Customer), including where the infringement arises as a result of the combined product and would not have arising without such combination; or (e) use of a non-current release of the Product or Subscription Services.
12.5 The foregoing provisions of clause 12 state Customer's sole and exclusive rights and remedies, and Mindset's (including Mindset’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. DISCLAIMERS AND LIMITATION OF LIABILITY – CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1 This clause 13 sets out the entire financial liability of Mindset (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of: (a) any breach of the Agreement (including without limitation, any claim under clause 12.1 or clause 12.3); (b) any use made by Customer of the Deliverables or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 Except as expressly and specifically provided in the Agreement: (a) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement, including without limitation any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement; (b) the Deliverables provided, procured and/or sub-contracted by Mindset under the Agreement, are provided to Customer on an “as is” and “as available” basis; and (c) Customer assumes sole responsibility for the use of the Deliverables (as applicable) by Customer, its Authorised Users and End Users, and for conclusions drawn from such use, including any decisions made as a result of such use. Mindset shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided to Mindset by Customer in connection with the Deliverables, or any actions taken by Mindset at Customer’s direction.
13.3 Mindset incorporates artificial intelligence functionality into its Deliverables, which utilise third-party large-scale language models (LLM) or other generative or similar/related AI functionality (Generative AI) to deliver certain features of the Deliverables. This Generative AI may utilise both general “Open Models” trained on all text or other data sources available on the Internet accessed by the relevant Generative AI, or, at Customer’s option, “Closed Models” which utilise proprietary data sets made available by the Customer to train the Generative AI (in addition to Open Model functionality), typically to generate responses to Customer’s or its Authorised User’s or End User’s requests or queries (Open Model and Closed Model Generative AI are together defined as AI below).
13.4 Whilst Mindset (and the AI providers whose functionality Mindset utilises) will treat any responses generated by the AI featured in the Deliverables as proprietary to the Customer or the relevant Authorised User or End User, given the nature of machine learning, and the fact that AI uses all sources available on the Internet as a training set, outputs may not be unique across users and the Deliverables may generate the same or similar output for Customer or any other third party using AI, in particular in respect of Open Models. For example, Customer may provide input to an LLM model such as “What colour is the sky?” and receive output such as “The sky is blue.” Other users may also ask similar questions and receive the same response. Responses that are requested by and generated for other users are not considered unique or proprietary to the Customer (or their Authorised User or End User). While responses or content generated by through a Closed Model are more likely to be unique, due to their access to Customer’s proprietary information, Mindset cannot guarantee the uniqueness of any responses or content generated by an AI.
13.5 The Customer acknowledges that Mindset serves as an intermediary tool for building AI services into the Product, and does not and cannot guarantee the accuracy, completeness, lawfulness or appropriateness of any content generated by AI.
13.6 The Customer (or its End User or Authorised User) is solely responsible for monitoring, reviewing, and managing any content generated by AI, as well as for dealing with any issues that may arise from its use.
13.7 The Customer is responsible for complying with, and ensuring its Authorised Users and End Users comply with, any applicable law when using AI, as well as the terms of EULA or AULA (as applicable).
13.8 Customer is responsible for any personal data contained in any proprietary data sets it chooses to use as training data for AI Closed Models, as well as any personal data contained in requests or queries, and ensuring that the relevant data subjects have properly consented to use of their data in such contexts (in this regard the third party AI provider is a processor and the Customer is the controller of such personal data). Customer may wish to refrain from (and procuring that its Authorised Users and End Users refrain from) sharing any personal data in Open Model AI tools for these reasons.
13.9 The nature of AIs makes it impossible to trace the source of content generated by AI, and therefore the source of any personal data or other information contained therein. Customer acknowledges that, where AI output contains personal data, this data may have been obtained without the consent or knowledge of the relevant data subject, and it uses such data at its own risk.
13.10 Mindset cannot guarantee the source of outputs generated through Open Model or Closed Model AI. When Customer uses the Closed Model, it is not possible for Mindset to ascertain whether generated outputs will be based solely on Customer’s proprietary information. The Open Model uses AI that is trained on all available Internet sources, and the Closed Model hypothetically uses the Customer’s specific proprietary information, but this cannot be guaranteed. Therefore, the generated outputs may not be fully original / based on Customer’s proprietary information, may contain infringing content, may be similar or identical to content generated by and for other users, and may contradict Customer’s proprietary information.
13.11 Mindset encourages the Customer (and its Authorised Users and End Users) to exercise caution and judgment when using AI and to always verify the accuracy and appropriateness of content outputs, including for potential hallucinations and confabulations, or third-party IPR infringement.
13.12 Mindset does not warrant that the Deliverables will meet Customer’s requirements; that the Deliverables will be uninterrupted, timely, secure, or error-free; that the information provided through the Deliverables is accurate, reliable or correct; that any defects or errors will be corrected; that the Deliverables will be available at any particular time or location; or that the Deliverables are free of Viruses, vulnerabilities or other harmful components. Mindset will not be responsible for any risk of loss resulting from Customer’s downloading or using files, information, data or other material obtained from the Subscription Services or Products.
13.13 Mindset provides, through the Subscription Services, a framework or platform allowing the Customer to develop a tailored Product for its Authorised Users and End Users own use and the Customer is required to prepare and provide relevant content to ensure that this objective is met, and that use of the Subscription Services requires skill and knowledge and that the Customer has that skill and knowledge and undertakes that it and its Authorised Users will exercise same, and appropriate judgement when using same.
13.14 Mindset may also recommend third-party platforms, service providers or products from time to time, but gives no warranties about such products, platforms or services or their relevant providers. Customer should assess for itself whether they properly meet its requirements and will enter into separate contracts independently of Mindset.
13.15 Nothing in the Agreement excludes the liability of either party: (a) for death or personal injury caused by such party’s negligence; or (b) for fraud or fraudulent misrepresentation or (c) any other liability which cannot strictly be excluded or limited by relevant law.
13.16 Subject to the foregoing: a) Mindset shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and (b) Mindset’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to an amount equal the annual Subscription Charges paid for the 12 month period in which the claim arose.
13.17 Customer acknowledges and accepts that (a) Mindset does not and cannot warrant or represent that the Deliverables are compliant with any regulatory or legal requirements to which Customer (or its End Users) may be subject, or which may be relevant to the purposes for the Deliverables may be used, and (b) Mindset cannot be held responsible or liable for how the Deliverables are used by Authorised Users or End Users.
14. FREE DELIVERABLES AND BETA DELIVERABLES
14.1 To the extent Customer uses any Free Deliverables, it acknowledges and agrees that its entitlement to access and use such Free Deliverables constitutes reasonable and sufficient consideration in return for which it is willing to adhere to the terms of the Agreement.
14.2 Customer acknowledges that all Free Deliverables (including in this section any Beta Deliverables) may be subject to change at any time without notice. Customer uses Free Deliverables entirely at its own risk. Mindset gives no warranties whatsoever, and to the extent permitted by law, accepts no liabilities whatsoever regarding the Free Deliverables and their use by Customer or any Authorised Users.
14.3 Access to the Free Deliverables and Beta Deliverables (which have not been paid for) is permitted temporarily, and Mindset may suspend, withdraw, discontinue or change all or any part of the Free Deliverables, either generally or to Customer specifically, at any time, for any reason, with or without notice. Mindset will not be liable to Customer if, for any reason, the Free Deliverables are unavailable at any time or for any period.
14.4 Customer acknowledges and agrees that access and use of any applicable Free Deliverables or Beta Deliverables Mindset offers constitutes reasonable and sufficient consideration. In return for that access, Customer is willing to adhere to the terms of the Agreement.
14.5 As a Beta Deliverables user, Customer may get access to information that isn't yet publicly available about new products and features that Mindset plans to offer. Given the nature of this information, it is important that Customer keeps it confidential. Customer agrees that any Beta Deliverable information that isn't yet in the public domain, for example, information about a preview for a new Beta Deliverable, is Mindset’s Confidential Information, whether or not expressly labelled as such. Customer agrees only to use such Confidential Information to test and evaluate the Beta Deliverable (the Purpose), not for any other purpose. Customer also agrees not to disclose, publish, or share any Confidential Information with or to any third party unless it has set up the Beta Deliverable in such a way that expressly encourages this (for example, where Customer is part of a forum Mindset has organised to trial or discuss a new Beta Deliverable).
14.6 Mindset’s Confidential Information relating to Beta Deliverables does not include information that is: (a) (or becomes) publicly available without breach of the Agreement through no act or inaction on Customer’s part (for example, where a previously private Beta Deliverable is rolled out as a regular Service by us); (b) independently developed by Customer without breach of any confidentiality obligation to Mindset or any third party; or (c) disclosed with Customer’s express written permission from Mindset. If Customer is required to disclose Confidential Information according to any order by a court or regulatory authority with jurisdiction over Mindset, it may do so provided that Mindset has been given reasonable advance written notice to object (unless prohibited by law) and the disclosure is limited to the maximum extent possible to comply with such an order of law.
15. TERM AND TERMINATION
15.1 This Agreement shall commence on the Commencement Date, or the date the Proposal is agreed or signed by both parties, whichever is earlier, and shall (unless terminated earlier in accordance with these terms) continue in full force and effect until the end of the Subscription Term.
15.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver or manager or which entitle the court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; (c) the other party ceases, or threatens to cease, to trade). Mindset may also terminate the Agreement for cause on thirty (30) days’ notice if Mindset determines that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect Mindset, Mindset’s prospects, or Mindset’s customers; or if the Customer undergoes a change in control (as defined in section 1124 of the Corporation Tax Act 2010) which means it is likely to be controlled by an entity which Mindset deems (acting reasonably) to have interests or potential commercial interests which are adverse to those of Mindset. The Agreement may not otherwise be terminated prior to the end of the Subscription Term.
15.3 Mindset may suspend any Authorised User’s access to any or all Subscription Services without notice for (i) use of the Subscription Services in a way that violates applicable laws or regulations or the terms of the Agreement, (ii) posting or uploading material that infringes or is alleged to infringe on the IPR of any person or relevant law, or (iii) to protect the integrity, operability, and security of the Subscription Services. Mindset may, without notice, review, edit and delete any Customer Data that Mindset has reason to determine in good faith violates the Agreement (including the AULA or EULA), provided that the parties acknowledge and agree that Mindset has no duty to, and shall not, pre-screen, control, monitor or edit Customer Data. Mindset will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Deliverables.
15.4 The Subscription Term shall automatically renew over each Renewal Period unless and until either party gives notice to the other in writing (including by email) that it does not wish the Agreement to continue beyond the Initial Subscription Term or the then-current Renewal Period, such notice to expire no later than 30 days prior to the end of the Initial Subscription Term or then-current Renewal Period (where such period is longer than a month in duration) or 14 days (where such period is a month in duration).
15.5 On expiry or termination of the Agreement for any reason: (a) all licences granted under the Agreement shall immediately terminate, even if no expiration date is specified in the Proposal provided by Mindset; (b) each party shall return and make no further use of any Confidential Information belonging to the other party; and (c) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 2, 9, 10, 11, 12.1, 13, 15.5, 15.6 and 16) or implicitly surviving termination, shall not be affected or prejudiced; and (d) subject to payment of a reasonable fee where requested by Mindset, Mindset will make reasonable efforts to provide Customer with a copy of its lawful, non-infringing Customer Data held in its or its Authorised Users’ or End Users’ accounts upon request, in the format in which it is held by Mindset, provided that Customer makes this request within 30 days of termination. Otherwise, Mindset will retain and use Customer Data as necessary to comply with its legal obligations, resolve disputes, and enforce Mindset’s agreements (and as further set out in Mindset’s Privacy Policy), but barring legal requirements, Mindset will delete all Customer Data within its control within the periods specified and subject to any limitations set out within the Mindset’s Privacy Policy. Mindset does not guarantee that any Customer Data can be recovered once this Agreement is terminated and any Authorised User or End User accounts closed.
15.6 Where Customer validly and lawfully terminates in accordance with clause 15.2(a) Mindset shall within 20 Business Days reimburse to Customer the Unused Portion of any Subscription Charges or other charges paid by Customer.
16. GENERAL
16.1 Mindset shall have no liability to Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Mindset or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Mindsets or sub-contractors, provided that Customer is notified of such an event and its expected duration. Mindset shall not be responsible for the failure of any third-party systems or platforms with which the Subscription Services interact.
16.2 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.3 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
16.4 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.5 The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to their subject matter. Mindset’s obligations are not contingent on the delivery of any future functionality or features of the Deliverables or dependent on any oral or written public comments made by Mindset regarding the Deliverables’ future functionality or features.
16.6 The provisions of clause 10 notwithstanding, Mindset reserves the right to publicise the fact of this Agreement, the identity of Customer, any Customer testimonials, and details concerning the nature of the Deliverables provided for, inter alia, marketing and promotional purposes.
16.7 Customer shall have all due regard to Mindset’s commercial standing and reputation, and not do anything (by act or omission) which may or might bring the standing or reputation of Mindset into disrepute, attract adverse publicity to Mindset or harm customer confidence in Mindset, including making any defamatory, misleading or untrue comments about Mindset to any third parties.
16.8 Customer shall not, without the prior written consent of Mindset (such consent not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. Mindset shall be free to assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the consent of Customer but providing notice of any assignment or transfer. Mindset may also appoint a suitably qualified sub-contractor to perform or provide certain Services on its behalf. Customer will continue to be liable to pay Mindset any fees due under the Agreement and shall not be liable directly for any of the subcontractor’s fees or expenses. Mindset shall remain responsible for the performance by its sub-contractor of any sub-contracted Services and shall not sub-contract the Services in their entirety.
16.9 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).
16.10 Notwithstanding any other provisions of the Agreement, nothing in the Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it.
16.11 Any notice required or permitted to be given under the Agreement shall be in writing and shall be delivered or transmitted to the intended recipient's address as specified in the Agreement or such other address as either party may notify in writing to the other from time to time for this purpose. In the case of notices to be served to Mindset, such notices may be sent by email to legal@mindset.ai. It may also, in the case of notice by Mindset only, be generally notified to Customers via their account, or notified by way of email to any known email address Mindset has on account for a given Customer. Any notice shall be treated as having been served on delivery if delivered by hand, 4 Business Days after posting if sent by pre-paid first class post. In the case of notice served by posting on the Customer’s account or by email, the notice shall be deemed given at the time such upload goes live onto the website or at the time of transmission of the email (respectively).
16.12 The construction, validity and performance of the Agreement shall be governed by the laws of England, and the parties submit any dispute regarding the construction, validity performance of the Agreement, or its subject matter, or any non-contractual disputes, to the exclusive jurisdiction of the courts of England.
16.13 The Proposal may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of a fully executed valid Proposal (in counterparts or otherwise) by facsimile or electronic transmission, or its signature via DocuSign or other EIDAS compliant signature platform, or the Customer’s confirmation by email of its agreement to the terms of a valid Proposal, shall be sufficient to bind the parties to the terms and conditions of the Agreement.
16.14 All Professional Services and Support, the Agreement and any correspondence between the parties regarding the Agreement’s subject matter shall be exclusively in the English language.
16.15 Mindset might make versions of the Agreement available in languages other than English. If Mindset does, the English version of the Agreement will govern Mindset’s relationship. The translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
16.16 Unless otherwise stated in these General Terms, no amendment or variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The above notwithstanding, Mindset may, acting in its sole discretion, amend these General Terms from time to time and will endeavour to provide Customer with thirty (30) days’ notice before making the change effective when it does so. If Customer objects to any change the change shall not take effect (in relation to that Customer only) until the expiry of the then-current Initial Subscription Term or Renewal Period (prior to which the Customer will have had an option under clause 15.4 to elect not to renew the Agreement into such subsequent term), and the version of the General Terms applicable to Customer until that point shall be the version applicable immediately prior to the latest update. Every time Mindset enters into a new Proposal with any Customer, the terms applying to the Agreement between the Parties shall be as outlined in the relevant version of these General Terms in force at the time of the signing of the relevant Proposal.