Mindset AI

Terms and Conditions

Last updated: July 2023

1. Introduction

1.1 Mindset has developed software modules that allow customers to configure applications with Subscription Services, resulting in customizable products and related documents referred to as "Deliverables."

1.2 These General Terms apply to Deliverables licensed by Mindset to any Customer, unless a separate written contract exists between Mindset and the Customer that expressly governs the supply of such Deliverables.

1.3 The agreement between Mindset and the Customer (the "Agreement") consists of: (i) these General Terms; (ii) the Proposal; and (iii) any other written documents issued by Mindset that expressly incorporate themselves into the Agreement.

1.4 In the case of any inconsistency between the documents forming part of the Agreement, a document issued later in time shall take priority over a document issued earlier in time.

1.5 The Customer's order shall only be deemed to be accepted when Mindset signs or sends an email agreeing to the Proposal, at which point the Agreement shall come into existence.

1.6 Mindset may amend these General Terms during the Term by giving the Customer not less than thirty (30) days' written notice of such amendment.

1.7 Proposals shall remain valid for a period of thirty (30) days from the date of issuance, unless a longer validity period is expressly specified in the Proposal.

2. Interpretation

2.1 Definitions

In the Agreement, unless the context otherwise requires, the following expressions have the following meanings:

  • "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where "control" means the ownership of more than fifty percent (50%) of the voting securities or equivalent voting interests of the entity.
  • "Agreement" means the agreement between Mindset and the Customer comprising the documents referred to in clause 1.3.
  • "AULA" means the Authorised User Licence Agreement, the terms of which are made available to Authorised Users upon access to the Deliverables.
  • "Authorised Users" means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Deliverables in accordance with the Agreement.
  • "Beta Deliverables" means any Deliverables or features that are clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
  • "Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
  • "Commencement Date" means the date specified in the Proposal as the commencement date for the Agreement, or if no such date is specified, the date on which the Agreement is entered into.
  • "Confidential Information" means all information (whether written, oral or in electronic form) disclosed by one party to the other party that is either designated as confidential or that, by its nature or the circumstances of its disclosure, ought reasonably to be considered confidential, including (without limitation) business plans, data, strategies, methods, customer lists, technical specifications, transaction details and know-how.
  • "Charges" means all charges payable by the Customer under the Agreement, including Subscription Charges and Professional Services Charges.
  • "Customer" means the person, firm or company identified in the Proposal as the customer.
  • "Customer Data" means all data, including personal data, that is provided by the Customer or Authorised Users to Mindset through the use of the Deliverables.
  • "Customer Equipment" means any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in connection with the Deliverables.
  • "Data Processing Terms" means the data processing terms set out in Mindset's data processing agreement, as amended from time to time.
  • "Data Protection Law" means all applicable data protection and privacy legislation in force from time to time, including the UK GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications Regulations 2003 and any applicable national implementing or supplementary laws, regulations and secondary legislation.
  • "Deliverables" means the Products and related Documents to be provided by Mindset under the Agreement as specified in the Proposal.
  • "Documents" means any documents, reports, information or data provided by Mindset to the Customer as part of the Deliverables, including user manuals and technical documentation.
  • "End Users" means the individuals who access or use the Products through the Customer's deployment of the Deliverables.
  • "EULA" means the End User Licence Agreement, the terms of which are made available to End Users upon access to the Products.
  • "Free Deliverable" means any Deliverable that Mindset makes available to the Customer at no charge, including free accounts, trial use and Beta Deliverables.
  • "Feedback" means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by the Customer or its Authorised Users relating to the Deliverables.
  • "Field of Use" means the specific purpose or scope of use for the Deliverables as set out in the Proposal.
  • "General Terms" means these general terms and conditions.
  • "Go Live Date" means the date on which the Customer first makes the Products available to End Users, or such other date as agreed in the Proposal.
  • "Implementation Services" means the services to be provided by Mindset to set up, configure and customise the Deliverables as described in the Proposal.
  • "ISP" means internet service provider.
  • "Initial Subscription Term" means the initial period of the subscription as specified in the Proposal.
  • "IPR" means all intellectual property rights, including patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, goodwill, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of Confidential Information and all other intellectual property rights, in each case whether registered or unregistered, including all applications and rights to apply for and be granted renewals or extensions of such rights.
  • "Licence Restrictions" means the restrictions on use of the Deliverables as set out in clause 3.
  • "Longstop Date" means the date by which Mindset must complete the Implementation Services, as specified in the Proposal.
  • "Mindset" means Mindset AI Ltd, a company registered in England and Wales with company number 12318480, whose registered office is at 68 Hanbury Street, London, E1 5JL.
  • "Open-Source Software" means software that is licensed under an open-source licence, meaning a licence that complies with the Open Source Definition as published by the Open Source Initiative.
  • "Payment Terms" means the payment terms specified in the Proposal or, if not specified, thirty (30) days from the date of invoice.
  • "Products" means the software products provided by Mindset as part of the Deliverables, as specified in the Proposal.
  • "Purpose" means the purpose for which the Customer is permitted to use the Deliverables, as described in the Proposal and subject to the Field of Use.
  • "Privacy Policy" means Mindset's privacy policy as made available on its website and as amended from time to time.
  • "Professional Services" means any consultancy, training or other professional services provided by Mindset to the Customer as specified in the Proposal.
  • "Professional Services Charges" means the charges for Professional Services as specified in the Proposal.
  • "Product Expert" means a Mindset-certified individual who provides guidance and support to the Customer in connection with the Deliverables.
  • "Proposal" means the proposal or order form issued by Mindset to the Customer setting out the Deliverables, Charges and other commercial terms.
  • "Regulatory Authority" means any government, regulatory authority, governmental department, agency, commission, board, tribunal, crown corporation, or court or other law, rule or regulation-making entity having jurisdiction over the parties or the Deliverables.
  • "Regulated Activity" means any activity that is subject to regulation by a Regulatory Authority.
  • "Renewal Period" means the period described in clause 15.4.
  • "Retail Prices Index" means the Retail Prices Index published by the Office for National Statistics, or any successor index.
  • "Sensitive Information" means information relating to an individual's racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, health, sex life or sexual orientation, criminal convictions or offences.
  • "Services" means the Implementation Services, Subscription Services, Support and Professional Services.
  • "Source Code Materials" means the human-readable source code of the Products, together with all associated technical documentation and build tools.
  • "Subscription Charges" means the charges for the Subscription Services as specified in the Proposal.
  • "Subscription Services" means the subscription services provided by Mindset to the Customer as specified in the Proposal, including hosting, maintenance and updates.
  • "Subscription Term" means the Initial Subscription Term and any subsequent Renewal Periods.
  • "Support" means the support services provided by Mindset in accordance with the SLA.
  • "SLA" means the service level agreement for the Subscription Services as made available by Mindset and as amended from time to time.
  • "Term" means the term of the Agreement as defined in clause 15.
  • "Unused Portion" means any prepaid Subscription Charges attributable to the period from the date of termination to the end of the then-current Subscription Term.
  • "User Licences" means the number of user licences purchased by the Customer as specified in the Proposal, which determines the maximum number of Authorised Users permitted to access and use the Deliverables.
  • "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; prevent, impair or otherwise adversely affect access to or the operation of any programme or data; or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

2.2 – 2.10 Interpretation Rules

2.2 Clause headings shall not affect the interpretation of the Agreement.

2.3 A reference to a particular 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, application or re-enactment, and includes any subordinate legislation for the time being in force made under it.

2.4 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

2.5 A reference to one gender shall include a reference to the other genders.

2.6 A reference to writing or written includes email.

2.7 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

2.8 A reference to a party shall include that party's personal representatives, successors and permitted assigns.

2.9 Any phrase introduced by the terms "including," "include," "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2.10 A reference to "this Agreement" or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied, novated or supplemented from time to time.

3. Access to the Deliverables

3.1 The Customer warrants that it has the legal right and authority to enter into and perform its obligations under the Agreement, and that it has obtained all necessary consents to do so.

3.2 The Customer shall ensure that only Authorised Users access and use the Deliverables, and that the number of Authorised Users does not exceed the number of User Licences purchased.

3.3 Subject to the Customer's compliance with the terms of the Agreement, Mindset grants to the Customer a non-exclusive, non-transferable licence to permit the Authorised Users to use the Deliverables during the Subscription Term solely for the Customer's internal business purposes in accordance with the Agreement and the AULA.

3.4 In respect of the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for their use of the Deliverables and that such password shall be changed in accordance with good industry practice. The Customer shall not share, and shall ensure that Authorised Users do not share, their access credentials with any other person.

3.5 The Customer shall not, and shall ensure that its Authorised Users do not, access, store, distribute or transmit any Viruses or any material during the course of its use of the Deliverables that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or is otherwise illegal or causes damage or injury to any person or property. Mindset reserves the right, without liability or prejudice to its other rights, to disable the Customer's access to any material that breaches the provisions of this clause.

3.6 The Customer shall not, except as may be allowed by applicable law which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under the Agreement:

  • attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Products in any form or media or by any means;
  • attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Products;
  • access all or any part of the Deliverables in order to build a product or service which competes with the Deliverables;
  • use the Deliverables to provide services to third parties other than End Users;
  • subject to clause 16.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Deliverables available to any third party except the Authorised Users and End Users; or
  • attempt to obtain, or assist third parties in obtaining, access to the Deliverables other than as provided under the Agreement.

3.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Deliverables and, in the event of any such unauthorised access or use, shall promptly notify Mindset.

3.8 The Customer shall not input, upload, transmit or otherwise provide any Sensitive Information to or through the Deliverables without the prior written consent of Mindset. The Customer acknowledges and agrees that Mindset shall have no liability for any Sensitive Information processed through the Deliverables in breach of this clause.

3.9 The Customer shall comply with all applicable laws and regulations with respect to its activities under the Agreement, including in relation to its use of the Deliverables and the content of all Customer Data.

3.10 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer unless otherwise agreed in writing by Mindset.

3.11 The Customer shall be responsible for ensuring that its Authorised Users and End Users comply with the terms of the AULA and EULA respectively, and the Customer shall be liable for any breach of the Agreement caused by any such Authorised User or End User.

3.12 The Customer shall take all reasonable steps to prevent unauthorised access to the Deliverables, including by maintaining the security and confidentiality of all login credentials and access tokens. The Customer shall immediately notify Mindset of any suspected or actual breach of security.

4. Services

4.1 Mindset shall provide the Services to the Customer during the Subscription Term in accordance with the Agreement and the SLA in all material respects.

4.2 The Implementation Services are provided on the assumption that the Customer will comply with its obligations under clause 6 and will provide all information, cooperation and access reasonably required by Mindset to perform the Implementation Services. Any failure by the Customer to do so may result in delay and/or additional charges.

4.3 The scope of the Implementation Services shall be as described in the Proposal. Any services requested by the Customer that fall outside the scope of the Proposal shall be subject to additional Charges at Mindset's then-current rates.

4.4 If the Implementation Services are delayed due to the acts or omissions of the Customer, the Longstop Date shall be extended by a period equal to the duration of such delay, and Mindset shall not be liable for any costs, losses or damages arising from such delay.

4.5 The Customer shall be responsible for the accuracy and completeness of all data provided to Mindset for the purposes of the Implementation Services, and Mindset shall have no liability for any errors arising from inaccurate or incomplete data provided by the Customer.

4.6 The Subscription Services shall be provided from the Commencement Date (or Go Live Date, if applicable) and shall continue for the duration of the Subscription Term, subject to earlier termination in accordance with clause 15.

4.7 Mindset shall provide Support in accordance with the SLA. The SLA may be updated by Mindset from time to time, provided that any such update shall not materially reduce the level of Support provided.

4.8 Mindset may, at its discretion, consider feature requests from the Customer, but shall be under no obligation to implement any such requests. Any feature development agreed between the parties shall be subject to separate terms and charges.

4.9 The Customer's use of the Subscription Services is subject to a fair usage policy. Mindset reserves the right to take action (including suspension or restriction of access) if the Customer's use of the Subscription Services is excessive or unreasonable, having regard to the nature of the Deliverables and the number of User Licences purchased.

5. Warranties and Representations

5.1 Each party warrants that it has the legal right and authority to enter into the Agreement and to perform its obligations hereunder.

5.2 Mindset warrants that the Services will be performed with reasonable skill and care in accordance with good industry practice.

5.3 The warranty in 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 the Documentation; (b) modification or alteration of the Deliverables by any party other than Mindset or its authorised contractors; or (c) any defect or error in the Customer Equipment or Customer Data.

5.4 Mindset may from time to time apply automatic updates to the Deliverables, and the Customer acknowledges that the Deliverables may change as a result. Mindset shall use reasonable endeavours to notify the Customer of any material changes in advance where reasonably practicable.

5.5 Mindset warrants that it has not entered into, and shall not enter into during the Term, any agreement which would conflict with or prevent it from fulfilling its obligations under the Agreement.

5.6 The timing of Mindset's performance of its obligations under the Agreement is indicative only and time shall not be of the essence.

5.7 The Customer warrants that it holds, and shall continue to hold during the Term, all necessary licences, consents and permissions required for the performance of its obligations under the Agreement.

6. Customer's Obligations

The Customer shall:

a. provide Mindset with all necessary co-operation in relation to the Agreement and all necessary access to such information as may be required by Mindset in order to perform the Services, including Customer Data, 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 in the Customer's provision of such assistance as agreed by the parties, Mindset may adjust any agreed timetable or delivery schedule as reasonably necessary;

d. ensure that it has obtained all necessary licences and consents and comply with all relevant legislation in relation to the Deliverables before the date on which the Services are to start, and shall maintain such licences and consents throughout the Term;

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, maintaining and securing its Customer Equipment and ensuring it is compatible with the Deliverables. The Customer shall also be responsible for maintaining its own broadband and internet connection at its own expense;

g. designate a contact person to act as its primary point of contact with Mindset for all matters relating to the Agreement, and shall ensure that such person has the authority to make decisions and provide approvals on behalf of the Customer;

h. be solely responsible for all content that it or its Authorised Users upload, input or transmit through the Deliverables, and shall ensure that such content does not infringe any third-party rights or breach any applicable law;

i. comply with all reasonable directions and instructions issued by Mindset in connection with the Customer's use of the Deliverables.

7. Third Party Software and Integrations

7.1 The Deliverables may enable or require the Customer to access and use third-party applications, software, products, services or website links (collectively, "Third-Party Applications"). The Customer acknowledges and agrees that its use of any Third-Party Application shall be subject to the terms and conditions and privacy policies of the relevant third-party provider.

7.2 The Customer may, through its use of the Deliverables, direct Mindset to access and process data from third-party data streams and services. The Customer is solely responsible for ensuring that it has obtained all necessary rights, consents and permissions to access, use and process such third-party data through the Deliverables.

7.3 Mindset does not control and has no responsibility or liability for Third-Party Applications, including their availability, accuracy, content, functionality, security or privacy practices. Mindset makes no representations or warranties in respect of any Third-Party Applications and shall not be liable for any loss or damage arising from the Customer's use of any Third-Party Application.

7.4 The Customer shall be solely responsible for ensuring the proper integration and interoperability of any Third-Party Applications with the Deliverables, and Mindset shall have no obligation to provide support or maintenance in respect of any Third-Party Applications unless expressly agreed in writing.

8. Charges and Payment

8.1 The Customer shall pay the Charges to Mindset in accordance with the Payment Terms. All Charges are exclusive of VAT and any other applicable taxes, which shall be payable by the Customer at the prevailing rate.

8.2 If the Customer fails to make any payment due to Mindset under the Agreement by the due date for payment, then, without limiting Mindset's other remedies: (a) the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time, accruing on a daily basis from the due date until the date of actual payment; and (b) Mindset may suspend access to the Deliverables until payment has been made in full.

8.3 The Customer authorises Mindset to charge the Customer's designated payment method for all Charges due under the Agreement. The Customer shall ensure that its payment method is valid and current at all times.

8.4 All amounts payable under the Agreement are non-cancellable and non-refundable, except as expressly set out in the Agreement. Subscription Charges are payable in advance for the applicable Subscription Term and are not subject to set-off or deduction.

8.5 The Customer shall be responsible for all taxes, levies, duties and similar governmental charges of any nature (including any penalties or interest) imposed on the Customer or Mindset with respect to the transactions contemplated by the Agreement, other than taxes based on Mindset's net income.

8.6 If the Customer is required by applicable law to withhold or deduct any tax from any payment due to Mindset, the Customer shall increase the payment to Mindset so that, after making such withholding or deduction, Mindset receives a sum equal to the sum it would have received had no such withholding or deduction been required.

8.7 If the Customer's use of the Deliverables exceeds the User Licences or other usage limits specified in the Proposal, Mindset shall invoice the Customer for the excess use at the rates specified in the Proposal (or, if no such rates are specified, at Mindset's then-current list prices), and the Customer shall pay such invoice in accordance with the Payment Terms.

8.8 The Customer shall keep its billing and contact information current and accurate at all times throughout the Term.

8.9 Mindset may increase the Subscription Charges at the start of each Renewal Period by an amount not exceeding the greater of: (a) the percentage increase in the Retail Prices Index in the twelve (12) month period immediately preceding the date of increase; and (b) five percent (5%). Mindset shall give the Customer at least thirty (30) days' prior written notice of any such increase.

9. Proprietary Rights and Data

9.1 The Customer acknowledges and agrees that Mindset and/or its licensors own all IPR in the Deliverables and the Services. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, IPR or any other rights or licences in respect of the Deliverables or the Services.

9.2 The licence granted under clause 3.3 does not confer any rights to the Customer in addition to those expressly set out in the Agreement. Without limiting the foregoing, the Customer shall have no right to access the Source Code Materials.

9.3 The Customer shall not use Mindset's name, logo, trade marks or other branding except with Mindset's prior written consent, and any such use shall be in accordance with Mindset's brand guidelines.

9.4 The Customer retains all ownership rights in its Customer Data. The Customer grants Mindset a non-exclusive, royalty-free, worldwide licence to access, use and process the Customer Data for the purpose of providing the Services and performing its obligations under the Agreement. The Customer further grants Mindset a non-exclusive, perpetual, royalty-free licence to use aggregated and anonymised data derived from the Customer Data for the purposes of improving and developing the Deliverables, provided that such data cannot directly or indirectly identify the Customer or any individual.

9.5 Mindset shall implement and maintain appropriate technical and organisational security measures to protect the Customer Data against unauthorised or unlawful processing, accidental loss, destruction or damage, in accordance with good industry practice and applicable Data Protection Law.

9.6 The Customer shall not access, store, distribute or transmit any Customer Data through the Deliverables in a manner that breaches any applicable law or regulation, and Mindset shall not be responsible for any such breach by the Customer.

9.7 The Customer agrees that it shall not, during the Subscription Term and for a period of twelve (12) months thereafter, directly or indirectly develop, market or distribute any product or service that is substantially similar to, or competes with, the Deliverables, using or based on Mindset's Confidential Information or IPR.

9.8 The Customer acknowledges and agrees that any Feedback provided to Mindset shall be deemed non-confidential and non-proprietary. Mindset shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use and incorporate into the Deliverables any Feedback.

9.9 The Customer shall be solely responsible for backing up its Customer Data. Mindset shall not be liable for any loss, corruption or destruction of Customer Data, except to the extent caused by Mindset's breach of its obligations under clause 9.5.

9.10 The Data Processing Terms shall apply to Mindset's processing of personal data on behalf of the Customer, and each party shall comply with its obligations under the Data Processing Terms and applicable Data Protection Law.

9.11 The Customer shall not attempt to access the Source Code Materials of the Products, and shall not permit or encourage any third party to do so. Any rights not expressly granted to the Customer under the Agreement are reserved by Mindset.

10. Confidentiality

10.1 Each party shall keep the other party's Confidential Information confidential and shall not, without the prior written consent of the other party, disclose the other party's Confidential Information to any person, except: (a) to its employees, officers, agents, consultants or subcontractors who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Agreement, provided that the disclosing party ensures that such persons are bound by obligations of confidentiality no less onerous than those in this clause 10; (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; or (c) to the extent that the information has entered the public domain through no fault of the receiving party.

10.2 The Customer acknowledges that Customer Data processed through the Deliverables is the Confidential Information of the Customer, and Mindset shall treat it as such in accordance with the terms of this clause 10 and the Data Processing Terms.

10.3 The Customer shall be responsible for managing access to its account and ensuring that only Authorised Users have access to the Deliverables. The Customer shall immediately notify Mindset if it becomes aware of any unauthorised access to its account or the Deliverables.

10.4 The existence, features and functionality of any Beta Deliverables shall be treated as Confidential Information of Mindset and shall not be disclosed by the Customer to any third party without the prior written consent of Mindset.

11. Non-Solicitation

11.1 During the Term and for a period of twelve (12) months after the termination or expiry of the Agreement, the Customer shall not, without the prior written consent of Mindset, directly or indirectly solicit or entice away (or attempt to solicit or entice away) from Mindset any person who is, or was during the preceding twelve (12) months, an employee, officer, consultant or contractor of Mindset who has been involved in the provision of the Services. In the event of any breach of this clause, the Customer acknowledges and agrees that Mindset shall be entitled to receive, as liquidated damages and not as a penalty, an amount equal to ten (10) times the gross annual salary (or, in the case of a consultant or contractor, ten times the annual fees) of the relevant individual, such amount being a genuine pre-estimate of Mindset's loss.

12. Indemnity

Customer's attention is particularly drawn to this clause

12.1 The Customer shall indemnify, defend and hold harmless Mindset against all claims, demands, actions, costs, expenses (including reasonable legal costs), losses and damages arising from or incurred by reason of: (a) the Customer's breach of any term of the Agreement; (b) the Customer's use of the Deliverables in breach of the Agreement; (c) any claim that the Customer Data infringes the IPR or other rights of any third party; or (d) any claim arising from the Customer's breach of applicable law.

12.2 Mindset shall defend the Customer against any claim that the Customer's use of the Deliverables in accordance with the Agreement infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality of any third party, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) Mindset is given prompt notice of any such claim; (b) the 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.

12.3 In the defence or settlement of any claim under clause 12.2, Mindset may, at its sole option and expense: (a) procure for the Customer the right to continue using the Deliverables; (b) replace or modify the Deliverables so that they become non-infringing; or (c) if options (a) and (b) are not reasonably available, terminate the Agreement on written notice and refund to the Customer the Unused Portion of any prepaid Subscription Charges.

12.4 Mindset shall have no liability under clause 12.2 and the Customer shall indemnify Mindset against any claim arising from: (a) use of the Deliverables in combination with any hardware or software not supplied or approved by Mindset, if the infringement would have been avoided by the use of the Deliverables without such combination; (b) use of the Deliverables other than in accordance with the Agreement; (c) modification of the Deliverables by any person other than Mindset or its authorised contractors; or (d) use of a non-current version of the Deliverables where use of a current version would have avoided the infringement.

12.5 Clauses 12.1 to 12.4 state the exclusive rights and remedies of, and the entire obligation and liability of, Mindset and the Customer in respect of any claim of infringement of IPR.

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, consultants and subcontractors) to the Customer in respect of: (a) any breach of the Agreement however arising; (b) any use made by the Customer of the Deliverables; and (c) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.

13.2 Except as expressly stated in the Agreement, all warranties, conditions, representations and other terms, whether express or implied (by statute, common law, custom, usage or otherwise), are excluded to the fullest extent permitted by applicable law. The Deliverables are provided on an "as is" and "as available" basis.

AI Functionality Disclaimers

13.3 The Customer acknowledges that certain features of the Deliverables may utilise artificial intelligence and machine learning technologies ("AI Functionality"). The Customer acknowledges and accepts that AI Functionality is inherently probabilistic and that outputs may vary, contain errors or inaccuracies, or produce unexpected results.

13.4 Mindset does not warrant that the outputs generated by AI Functionality will be unique or that identical or substantially similar outputs have not been or will not be generated for third parties.

13.5 Mindset makes no warranty or representation as to the accuracy, completeness, reliability, suitability or quality of any output generated by AI Functionality. The Customer is solely responsible for evaluating and verifying the suitability and accuracy of all AI-generated outputs before relying on or using them.

13.6 The Customer shall be solely responsible for all decisions made and actions taken based on AI-generated outputs, and Mindset shall have no liability for any consequences arising from the Customer's use of or reliance on such outputs.

13.7 The Customer shall ensure that its use of AI Functionality complies with all applicable laws and regulations, including (without limitation) Data Protection Law, consumer protection law and any sector-specific regulations applicable to the Customer's business.

13.8 The Customer shall be solely responsible for ensuring that any personal data processed through AI Functionality is processed in accordance with applicable Data Protection Law, including obtaining all necessary consents and providing all necessary notices to data subjects.

13.9 The Customer acknowledges that the AI Functionality may process and generate outputs based on data and content sourced from various sources, including publicly available data, and Mindset makes no warranty as to the accuracy or appropriateness of such data.

13.10 Mindset makes no warranty that outputs generated by AI Functionality are original, do not infringe any third-party rights, or are free from bias, inaccuracy or inappropriate content. The Customer uses AI-generated outputs at its own risk.

13.11 Mindset recommends that the Customer exercises caution and professional judgement when using AI-generated outputs, and that such outputs are reviewed by appropriately qualified personnel before being relied upon, published or distributed.

General Limitations

13.12 Mindset does not warrant that the Deliverables will meet the Customer's requirements, that the Deliverables will be uninterrupted, timely, secure or error-free, or that defects will be corrected.

13.13 The Customer acknowledges that the Deliverables have not been developed to meet its individual requirements, and that it is therefore the Customer's responsibility to ensure that the facilities and functions of the Deliverables as described in the Documentation meet its requirements.

13.14 Mindset shall not be liable for any recommendations made by any person in connection with the Deliverables or the Services, including any recommendations made by a Product Expert, unless such recommendations are confirmed by Mindset in writing.

13.15 Nothing in the Agreement shall exclude or limit Mindset's liability for: (a) death or personal injury caused by Mindset's negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot be excluded or limited by applicable law.

13.16 Subject to clause 13.15, Mindset shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any: (a) loss of profits; (b) loss of business; (c) loss of revenue; (d) depletion of goodwill or similar losses; (e) loss of anticipated savings; (f) loss of or corruption of data or information; (g) loss of contract; or (h) any indirect, special or consequential loss, costs, damages, charges or expenses however arising under the Agreement.

13.17 Subject to clause 13.15, Mindset's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall in all circumstances be limited to the total Subscription Charges paid by the Customer during the twelve (12) month period immediately preceding the date on which the claim arose.

13.18 Mindset does not warrant that the Deliverables will enable the Customer to comply with any specific legal or regulatory requirement. The Customer is solely responsible for ensuring that its use of the Deliverables complies with all applicable laws and regulations, including any Regulated Activity.

14. Free Deliverables and Beta Deliverables

14.1 The Customer acknowledges that any Free Deliverables are provided without charge and that the consideration for the provision of Free Deliverables is the Customer's agreement to the terms of the Agreement, including the limitations and exclusions set out herein.

14.2 Mindset may change, suspend or discontinue any Free Deliverable at any time without notice and without liability to the Customer.

14.3 The Customer's access to Free Deliverables is temporary and may be revoked by Mindset at any time in its sole discretion.

14.4 Beta Deliverables are provided "as is" and "as available" without any warranty of any kind. The Customer's use of Beta Deliverables is at its sole risk.

14.5 The existence, features and functionality of Beta Deliverables are the Confidential Information of Mindset and the Customer shall not disclose any information relating to Beta Deliverables to any third party without the prior written consent of Mindset.

14.6 The confidentiality obligations in clause 14.5 shall not apply to information that: (a) is or becomes publicly available other than through a breach of this Agreement; (b) was already known to the Customer at the time of disclosure; (c) is received by the Customer from a third party who is not bound by any obligation of confidentiality in respect of such information; or (d) is independently developed by the Customer without use of or reference to Mindset's Confidential Information.

15. Term and Termination

15.1 The Agreement shall commence on the Commencement Date and shall continue for the Initial Subscription Term, unless terminated earlier in accordance with this clause 15.

15.2 Without prejudice to any other rights or remedies, either party may terminate the Agreement at any time by giving written notice to the other party if:

  • the other party commits a material breach of any term of the Agreement and (if such breach is remediable) fails to remedy that breach within thirty (30) days of being notified in writing of the breach;
  • the other party becomes insolvent, has a receiver, administrator or administrative receiver appointed over any of its assets, passes a resolution for winding up (other than for the purpose of a solvent amalgamation or reconstruction), or has a winding up order made against it, or enters into any composition or arrangement with its creditors, or suffers any analogous event in any jurisdiction;
  • the other party takes or threatens any action which may adversely affect Mindset's ability to perform the Services or the Customer's ability to use the Deliverables; or
  • there is a change of control of the other party (where "control" has the meaning given in section 1124 of the Corporation Tax Act 2010).

15.3 Without prejudice to any other rights or remedies, Mindset may suspend the Customer's access to the Deliverables and/or terminate the Agreement immediately on written notice if: (a) the Customer fails to pay any amount due under the Agreement on the due date for payment; or (b) Mindset reasonably believes that the Customer's use of the Deliverables poses a security risk or may adversely affect Mindset's systems or other customers.

15.4 At the end of the Initial Subscription Term, the Agreement shall automatically renew for successive periods of the same duration as the Initial Subscription Term (each a "Renewal Period"), unless either party gives the other party written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.

15.5 On termination or expiry of the Agreement:

  • all licences granted under the Agreement shall immediately terminate and the Customer shall cease all use of the Deliverables;
  • each party shall return or destroy (at the other party's option) all Confidential Information of the other party in its possession or control, and shall certify in writing that it has done so;
  • the Customer may request an export of its Customer Data within thirty (30) days of termination, and Mindset shall use reasonable endeavours to make such data available for export in a standard format. After such thirty (30) day period, Mindset shall have no obligation to retain the Customer Data and may delete it;
  • Mindset shall delete or anonymise all Customer Data within a reasonable period following the expiry of the thirty (30) day data export period, unless retention is required by applicable law.

15.6 Where the Agreement is terminated by the Customer due to Mindset's material breach under clause 15.2, Mindset shall reimburse the Customer the Unused Portion of any prepaid Subscription Charges. No refund shall be payable in any other circumstances of termination.

16. General

16.1 Neither party shall be in breach of the Agreement or otherwise liable for any failure or delay in the performance of its obligations if such failure or delay results from circumstances beyond the reasonable control of that party, including (without limitation) acts of God, fire, flood, severe weather, epidemic, pandemic, governmental actions, war, terrorism, riot, civil commotion, malicious damage, explosion, industrial action, failure of a utility service or transport network, or failure of a third-party telecommunications network ("Force Majeure Event"). The affected party shall promptly notify the other party in writing of the nature and expected duration of the Force Majeure Event.

16.2 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy.

16.3 Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies 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 constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.

16.6 Mindset may use the Customer's name and logo in its marketing materials, website and client lists to identify the Customer as a user of the Deliverables, unless the Customer notifies Mindset in writing that it does not consent to such use.

16.7 The Customer shall not do, or omit to do, anything that could reasonably be expected to bring Mindset or its Deliverables into disrepute or damage Mindset's reputation.

16.8 The Customer shall not assign, transfer, sub-contract, delegate, charge, mortgage or otherwise dispose of all or any of its rights or obligations under the Agreement without the prior written consent of Mindset. Mindset may assign, transfer, sub-contract, delegate, charge, mortgage or otherwise dispose of all or any of its rights or obligations under the Agreement without the consent of the Customer.

16.9 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

16.10 The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

16.11 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand, sent by pre-paid first-class post, recorded delivery post or email to the other party at its registered office, principal place of business or such other address as may have been notified to the other party in accordance with this clause. A notice delivered by hand shall be deemed received when delivered. A notice sent by pre-paid first-class post or recorded delivery post shall be deemed received two (2) Business Days after posting. A notice sent by email shall be deemed received at the time of transmission, provided that no delivery failure notification is received by the sender.

16.12 The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.

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