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Terms & Conditions for the Use of the GAINS Pilot Service

Last updated 16th December 2022

1. Definitions

a. “Agreement” means these terms and conditions.
b. “Access Fee” means the monthly fee (excluding any taxes and duties) payable by You in accordance with the Fee Schedule.
c. “Applicable Law” means any legally binding obligation applicable to a party, including statutes, rules, regulations, codes, court rulings, or any other binding requirement.
d. “Earth-i”, ”we”, ”us” or ”our” means Earth-i Ltd., with its registered office at Northside House, 69 Tweedy Road, Bromley, Kent, England, BR1 3WA, with company number 08508188 and VAT number GB216813321.
e. “Fee Schedule” means the information relating to trials, subscriptions and billing of the GAINS Service.
f. “Minimum Term” is defined in Section 7.
g. “GAINS Data” means data delivered through the GAINS applications programming interface or user interface.
h. “GAINS Service” means the user interface provided at, the APIs connected with that system and all data and content provided through that system.
i. “Exported Data” means GAINS Data that is exported or downloaded from the GAINS Service.
j. “Derived Data” means any data or information that is a result of or modification of, adaption, revision, translation, abridgement, condensation, compilation, evaluation, expansion, or any other recasting or processing of the GAINS Data.
k. “Services” means the services that we agree to provide to you, including the GAINS Service.
l. “Service Start Date” means the date on which services were first supplied under the Fee Schedule.
m. “Service End Date” means the day on which services were last supplied under the Fee Schedule.
n. “Term” is defined in section 7.
o. “User” means an individual employed by your company that you have authorised to use the Services.
p. “You” or ”Customer” means the party whose details are registered in the GAINS Service.

2. The Services: This Agreement governs your use of our Services and any information provided to you resulting from your use of those Services. The Services are subject to the terms of this Agreement.
a. Warranties and exclusions: We warrant that during the Term we will: (a) provide the Services with reasonable skill and care; (b) maintain all licences and permissions necessary to perform our obligations under this Agreement. We do not provide any warranty as to the fitness of the GAINS Service or GAINS Data for any particular purpose.
b. No liability: We exclude all liability for the performance, functionality or the result of or use of the content of the GAINS Service and the GAINS Data.

3. Your use of the services:
a. Responsibility: You: (a) are responsible for your use of the Services and for your Users’ compliance with the online user guides, help and training materials, and your Users’ compliance with this Agreement (as if they were you); (b) will ensure that your use of Exported Data complies with Applicable Law; (c) will comply with any other existing agreements between you and Earth-i.
b. Password protection: You are responsible for ensuring that any user IDs and passwords required for your Users to use Services are kept safe and confidential. You will promptly notify us upon discovery if the security of a user ID or password may be compromised.
c. Restrictions: You will not: (i) sell, resell, license, sublicense, distribute, or otherwise make the Services (or the results of the Services) and / or the GAINS Data and / or Derived Data from the Services available to anybody other than your User(s); (ii) subject to Applicable Law, attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form any part of the Services; (iii) use the Services or any GAINS Data to violate Applicable Law, including Applicable Law about data protection, privacy, or information security; (iv) communicate any material which is obscene, defamatory, offensive, or abusive via the Services; or (v) purposefully interfere with or disrupt the integrity or performance of our Services, including spamming, hacking, purposefully violating or circumventing our API rate limits, or similar activities.
d. Removal of GAINS Data: A licensor or Applicable Law may require us to remove GAINS Data from our Services. In such cases, we will notify you of the impacted data and you will promptly remove the same Exported Data from your systems, whether during or after the Term.

4. Fees and Conditions of Participation
a. Fees: No fees shall be chargeable by You or by Earth-i for Your participation in the GAINS Pilot.
b. Onboarding Call: You agree to join an initial call with the Earth-i team at the start of the Term of the GAINS pilot, where Earth-i experts will explain how to access and make use of the system, both via the online user interface and the APIs, and how to download and inspect GAINS data using standard office software tools such as MS-Excel.
c. Follow-up Call: You agree to join a follow-up call a week after the onboarding call, so that We may answer any questions or address any problems you have experienced in your initial week of use of GAINS.
d. Active usage: You agree to actively use the GAINS Service for the Term of the GAINS Pilot. This includes identification of one or more designated Users, amongst which at least one shall log in to the GAINS portal or make use of the GAINS API at least once per working day and evaluate the GAINS Data thereby accessed.
e. Feedback Questionnaire: You agree to send Earth-i a fully completed GAINS feedback questionnaire at least once per calendar month during the Term of the GAINS Pilot. A proforma of the questionnaire is attached to these Terms & Conditions. Earth-i reserves the right to make amendments to this proforma as may be necessary from time to time.
f. Feedback Calls: You agree to join a feedback call with the Earth-i team at least once per calendar month, in which You will provide feedback on your experience of using the system, and You will provide suggestions for future improvements to the system.

5. Confidential information
a. Confidential Information: ”Confidential Information” means any information that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is expressly marked as confidential or that a reasonable person under the circumstances would understand to be confidential. Our Confidential Information includes GAINS Data, trade secrets, non-public copyrighted materials, our product roadmap, and this Agreement. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) the Receiving Party knew prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) the Receiving Party independently developed.
b. Strict confidence: From the effective date of this Agreement until two years after the end of the Term, each party will hold in strict confidence, and will not use other than for the purposes of performing its obligations under this Agreement and/or using or supplying the Services, all Confidential Information of the other party. Nothing in this section 5 prevents the Receiving Party from disclosing the Confidential Information of the Disclosing Party to its corporate affiliates, legal advisers, accountants, or other professional advisers where required (collectively, ”Permitted Recipients”), provided that the party so disclosing will remain responsible for its obligations and for the Permitted Recipients’ use (and any disclosure) of the Confidential Information.

6. Intellectual Property
a. Our intellectual property rights: We, or our licensors, own all intellectual property rights in the Services and in the GAINS Data. Except as expressly stated otherwise in this Agreement, no one is granted any rights to or interest of any kind in our intellectual property rights.
b. Exported Data Licence: We grant to you a worldwide, non-exclusive, non-transferable, royalty-free, licence to use the Exported Data in accordance with this Agreement.
c. Licence to use your feedback: You grant to us, and you undertake to procure that your Users grant to us, a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or your Users arising out of your use of the Services.

7. Term and termination
a. Term: The Term of this Agreement is the duration of the GAINS Pilot Phase, which is expected to be for a period of 3 months commencing on the 1st February 2023, unless terminated earlier in accordance with this Agreement.
b. Minimum Term: The minimum term shall be 1 month.
c. Renewal: At the end of the term, the parties may mutually agree to extend the Agreement for a further Minimum Term, unless either party terminates these Terms by giving at least one month’s advance written notice.
d. Termination by either Party: Either Party may terminate this Agreement by written notice to the other party at any time if: (i) the other party is in material breach and, if remediable, the breach is not remedied within 30 days of being notified in writing of the breach; or (ii) the other party begins bankruptcy proceedings or becomes the subject of a petition in liquidation or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
e. Our termination rights: We may immediately suspend our performance or terminate this Agreement upon written notice if: (i) you breach any the clauses in section 3; (ii) we have good faith concerns about your financial solvency; or (iii) you fail to pay any fees by their due date and the default is more than 30 days.
f. Accrued rights and liabilities and survival: Termination of this Agreement, however arising, does not affect the accrued rights and liabilities of the parties as at termination. The following sections survive termination of this Agreement: 1, 3(a), 3(d), 5, 6, 7, 8, 9, and 11.
g. End of Agreement Data Handling: The Customer agrees that upon termination of this Agreement it shall erase, destroy, and render unreadable all GAINS data, Exported Data and Derived Data and certify in writing that these actions have been completed within 30 days of the termination of this Agreement or within 7 days of the request by Earth-i, whichever shall come first.

8. Exclusions and limitations of liability
a. What the parties are liable for: Nothing in this Agreement excludes or limits a party’s liability for any liability that cannot be excluded or limited under Applicable Law (including fraud).
b. Losses a party is never liable for: Subject to 8(a), each party excludes all liability, whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution, or otherwise, direct or indirect, whether foreseeable, known, foreseen, or otherwise, however arising, for any: (i) loss of revenue or profits (of any kind); (ii) loss of goodwill; (iii) loss of business; or (iv) special, indirect, or consequential loss, costs, damages, charges, or expenses.
c. Liability cap: Subject always to sections 2(b), 8(a), 8(b) and 11(k), Earth-i’s total liability, however arising, will under no circumstances exceed in aggregate, the greater of: (i) £30,000 or (ii) 110% of the total amount of fees payable for our Services under this Agreement for the 12 months immediately preceding the date any first claim arose.

9. Mutual indemnities
a. When you indemnify us: You will indemnify us, our Affiliates, and our and their officers, directors, employees, and agents, against any Losses arising out of your breach (including a breach by your Users or any agency clients) of section 3.
b. Indemnity process: An indemnity is subject to the indemnified party giving the indemnifying party prompt written notice of any claim and sole control to defend or settle the claim. The indemnified party will use its commercially reasonable efforts to mitigate its Losses.

10. Customer Support
a. Technical problems: Please contact us via the email address for assistance.
b. Service availability: Whilst Earth-i intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services may be unavailable to permit maintenance or other development activity to take place. If for any reason Earth-i has to interrupt the Services for longer periods than we would normally expect, Earth-i will use reasonable endeavours to publish in advance details of such activity on the website.

11. General
a. Privacy: We collect and process User data in accordance with our
b. Rules of interpretation: The following rules of interpretation apply to this Agreement: (a) the words ”include” and ”including” are deemed to have the words ”without limitation” following them; (b) references to the singular include the plural and vice versa; and (c) references to ”will” are to be construed as having the same meaning as ”shall”.
c. Force Majeure: Neither party is liable for a breach caused by an event beyond its reasonable control, including a natural disaster, disease outbreak, war, riot, terrorist action, civil commotion, malicious damage, government action, industrial action or dispute, fire, flood, storm, or failure of third party telecommunications services.
d. Publicity: We will be allowed to publicise on the Earth-i website and in Earth-i presentations that your business is a customer of Earth-i without your prior written consent, as well as be allowed to use your company logo in that publicity.
e. Testimonial: If you agree to submit a testimonial to us, then you agree that we may publish your testimonial, together with your name and company logo, on the Earth-i website (and on any successor website that we may operate from time to time), on such page and in such position as we may determine in our sole discretion. You further agree that we may edit the testimonial and publish edited or partial versions of the testimonial. However, we will never edit a testimonial in such a way as to create a misleading impression of your views. You may terminate your Testimonial by giving to us 90 days’ written notice of termination.
f. Invalidity: If any term of this Agreement is found invalid, illegal or unenforceable, the rest of the Agreement remains in effect.
g. No waiver: Either party’s delay or failure to enforce a term of the Agreement is not a waiver of that right and does not prevent that party from later enforcing that term or any other term.
h. Notice: Each party will deliver notices for legal service or material breach by a courier service or recorded delivery: for Earth-i, to our registered office address as set out above; for you, to your registered company address. Any notices for any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, you will send the notice to and we will send the notice to you via the email registered in the GAINS Service. Notice sent by recorded delivery is received three London, UK business days after posting. A party is deemed to receive email notice one working day after it is sent.
i. Assignment: You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with this Agreement, or any right, benefit, or interest under it, nor transfer or novate (each an ”Assignment”) without our prior written consent. Any Assignment without our prior written consent is void.
j. Anti-bribery: The parties will: (a) comply with all Applicable Law relating to anti-bribery or anti-corruption; (b) not engage in any act which, if it had occurred in the United Kingdom, the United States, or Singapore would have violated Applicable Law relating to anti-bribery or anti-corruption; and (c) promptly report to the other party if it receives a request for undue advantage.
k. Entire agreement: This Agreement, including materials incorporated by reference, constitutes the exclusive statement of agreement and understanding between the parties. This Agreement excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written about its subject matter. You agree that no representations were made prior to entering into this Agreement and that, in entering into this Agreement, you do not rely on, and will have no remedy in respect of, any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as set out in this Agreement. Nothing in this Agreement excludes or limits our liability for fraudulent misrepresentations or excludes (but this Agreement does limit) our liability for any fundamental misrepresentation.
l. Order of priority: If there is a conflict of this Agreement: sections 8 and 11(k) of these terms and conditions prevail over other sections of these terms and conditions. The English version of these terms and conditions prevails over any non-English version.
m. Third party rights: Other than as set out in sections 9.1 and 9.2, nothing in this Agreement creates or confers any rights or other benefits in favour of any person other than the parties to this Agreement even if that person has relied on the term or has indicated to any party to this Agreement its assent to the term.
n. No agency: This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
o. Governing law and jurisdiction: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, existence, negotiation, validity or termination (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.