1. DEFINITIONS
1.1. In these terms, unless the context otherwise requires, the definitions in the Order Form or set out below shall apply:
"Affiliate" means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
"Additional Service" means any services provided by Malted to the Customer which are outside the scope of the services included within
the Customer's Subscription Tier;
"Annual Fee" means the annual fee for Services (other than for the Additional Services) as detailed in the Order Form;
"Authorised Users" means the users authorised by the Customer to access the Product and use the Services, being the Customer's
employees and contractors;
"Business Day" means a day other than a Saturday or Sunday or bank holiday in England;
"Commencement Date" means the date the Agreement commences, listed in the Order Form;
"Confidential Information" means any and all confidential information, (whether in oral, written or electronic form). Malted's Confidential Information
includes confidential information relating to the Product;
"Control" has the meaning given to it in section 1124 of the Corporation Tax Act 2010;
"Customer Data" means the inputs and data uploaded to the Product by or on behalf of the Customer, and/or otherwise provided to Malted by or on
behalf of the Customer in connection with the Agreement, including the Interactions;
"Customer Materials" means the Customer Data, Customer Systems and any other information or other materials which are supplied,
made available or otherwise provided to Malted by the Customer in connection with the Agreement;
"Customer Obligations" means the obligations to be performed by the Customer as detailed in the Agreement including in the Order Form;
"Customer Systems" means the computers and operating systems and any other hardware or software which is supplied, made available
or otherwise provided by the Customer to Malted, or which is used by the Customer in connection with this Agreement, excluding the
Product;
"Distillation" means training or configuration process conducted by Malted on the Product;
"Data Processing Terms" means Malted's data processing terms as amended, updated or replaced from time to time, the current version of
which is in Schedule 1 of these Terms;
"Data Protection Laws" means all laws applicable to the processing of personal data and/or privacy, including the GDPR as it forms part of
the law of the UK ("UK GDPR");
"Documentation" means the documentation and user manuals relating to the Product available online at malted.ai from time to time;
"Fees" means the fees for the Product and Services to be paid by the Customer to Malted in accordance with this Agreement including Clause 7,
including the Annual Fee and the fees and charges for any Additional Services;
"Force Majeure Event" has the meaning given to it in Clause 14.5;
"Good Industry Practice" means the exercise of that degree of care, diligence and skill which would reasonably and ordinarily be expected from a
skilled, professional and experienced person engaged in the same type of undertaking under the same or similar circumstances;
"Hosting Account" has the meaning given to it in Clause 3.2;
"IPR" means any and all intellectual property rights, whether registered or not and whether vested, contingent or future; and wherever existing;
"New Modules" means modules made available by Malted with new and/or improved functionality;
"Order Form" means an order form in relation to the use of the Product and/or the provision of Services entered into by or on behalf of the Customer
and Malted incorporating these Terms;
“Output Reports” means the reports, insights, transcripts, graphs, export of charts, analysis, proposed actions and data which are generated as a
result of the Customer’s use of the Product (excluding the Product and any models or works forming part of or used in connection thereof);
"Purpose" means the sole purpose of the Customer's own internal business use of the Output Reports in relation to the Product Objective;
"Product" means the product to be provided, or made available, by Malted to the Customer as agreed in the Order Form as modified and
updated from time to time, and underlying data models and model weights;
"Rate Card" means Malted's rate card detailed in the Order Form, as may be updated by Malted from time to time in accordance with
Clause 7.6 and/or 7.7;
"Renewal Period" means the period as described in Clause 13;
"Resources" means the data, documents and other information required to be provided to Malted by or on behalf of the Customer to enable Malted to
(a) perform its obligations under this Agreement; and (b) configure the Product for use by the Customer;
"Services" means the services and resources (including access to the Product) to be provided by Malted as agreed in an Order Form;
"Subscription Term" has the meaning given to it in Clause 13.1;
"Subscription Tier" means the tier of Services agreed to be provided by Malted to the Customer in relation to the Product as detailed in the
Order Form (as it may be updated or replaced from time to time in accordance with Clause 7);
"Support and Maintenance Terms" means the terms detailed in Schedule 2;
"Support Services" has the meaning given to it in Schedule 2;
"Synthetic Data and Model Weights" means the synthetic data and model weights used in connection with and/or produced by the Product
developed and/or generated as a result of the Customer's use of the Product, together with any other materials, algorithms, data annotations
and/or data which would allow the Customer or any other third party to access decode, reverse engineer, disassemble, correct errors in,
create derivative works from, observe, translate, study or test the functioning of, decompile or otherwise derive, discover, convert or access
the source code or functionality of the Product and/or train any other artificial intelligence system;
"Terms" means these terms of service;
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"VAT" means United Kingdom value added tax; and
"Virus" means any computer code, programs, procedures, mechanisms or programming devices that are designed to disrupt, modify,
delete, damage, deactivate, disable, harm or otherwise impede in any manner the operation, confidentiality, integrity, and/or availability of
any systems or service or any software, firmware, hardware, computer system or network.
1.2. In this Agreement, a reference to a ‘party’ includes that party’s successors and permitted assigns and any reference to a statutory provision
shall include such provision as from time to time modified or re-enacted or consolidated so far as such modification or re-enactment or
consolidation applies or is capable of applying to any transaction entered into hereunder.
1.3. In this Agreement:
1.3.1. 1.3.2. each Order Form entered into by the Customer and Malted shall form a separate agreement, incorporating these Terms; and
in the event of any conflict in respect of the provisions of this Agreement the following order of priority shall prevail (in descending order of
priority): the Order Form; these Terms; the Support and Maintenance Terms; and then the Data Processing Terms.
1.4. Customer may at any time request services by submitting an Order Form to Malted or by requesting that Malted prepare an Order Form to
reflect the relevant services. An Order Form shall not constitute a binding obligation on Malted to supply the relevant service until such time
as both the Customer and Malted have signed it.
2. ACCESS AND USE OF THE PRODUCT
2.1. 2.2. 2.2.1. 2.2.2. 2.2.3. 2.3. Following such date(s) and/or development and build work as agreed between the parties, Malted shall provide the Customer with the
Services and access to the Product, as set out in the Order Form, for the Subscription Term for the Purpose, subject to this Agreement.
Malted shall provide the Services:
in accordance with this Agreement (including the Support and Maintenance Terms);
using reasonable skill and care and in accordance with Good Industry Practice; and
in accordance with applicable laws.
Malted warrants to the Customer that:
2.3.1. it has the right, power and authority to enter into this Agreement, to perform the Services and to provide the customer with access to the
Product;
2.3.2. it shall provide the Customer with instructions to enable the Customer to use the Product (subject to the Customer complying with its
obligations under this Agreement); and
2.3.3. it shall use reasonable endeavours to ensure that the Product is provided to the Customer free from Viruses.
2.4. The Customer agrees that:
2.4.1. the Services and any installation of and access to the Product are provided to the Customer on a non-exclusive basis, and subject to this
Agreement;
2.4.2. any installation, access and use of the Product and provision of the Services is subject to the Customer’s compliance with its obligations in
this Agreement and Malted’s reasonable instruction and directions (including the User Manuals); and
2.4.3. it shall act in accordance with applicable laws.
2.5. The Customer shall:
2.5.1. perform the Customer Obligations;
2.5.2. be responsible for procuring its own hardware, systems and infrastructure on which to use and/or access the Product, subject to provision of
the Hosting Account by Malted where agreed in accordance with this Agreement;
2.5.3. cooperate with Malted and provide Malted with all information, documents, materials, data or other items (including Customer Materials)
necessary for Malted to provide access to the Product and to provide the Services;
2.5.4. on request, provide Malted with Resources (in such format as reasonably requested by Malted) suitable to allow Malted to (a) perform its
obligations under this Agreement; and (b) configure the Product for use by the Customer;
2.5.5. provide Malted with access (including cloud access) to all data and Customer Systems necessary for Malted to provide access to the
Product and to provide the Services;
2.5.6. 2.5.7. keep all log in details (if any) (including user names and passwords) for the Product confidential;
ensure the Customer Systems are secure and backed-up regularly and establish and maintain adequate security measures to safeguard all
information and data of Malted (including the Product) in its possession from unauthorised access and copying;
2.5.8. provide all reasonably requested support and assistance and access to employees and contractors of the Customer in connection with the
Services;
2.5.9. notify Malted in writing as soon as it becomes aware of any actual or suspected unauthorised installation, access or use of the Product, or
any breach of this Agreement by it or its Authorised Users;
2.5.10. 2.5.11. notify Malted as soon as reasonably practicable of any problems and/or unexpected outcomes arising out of its use of the Product; and
where necessary (including to comply with applicable laws), ensure that there will be human oversight over its use of and reliance on the
Product and Output Reports.
2.6. The Customer shall not, and shall not attempt to (except as permitted under this Agreement) at any time during or after termination of this
Agreement:
2.6.1. 2.6.2. 2.6.3. install, access or use the Product for any purpose other than the Purpose or any other purpose agreed in writing with Malted;
attempt to circumvent or interfere with any security features of the Product unless agreed in writing with Malted for security reasons;
use the Product, Output Reports, Synthetic Data and Model Weights and/or Malted's Confidential Information to train any other system
including any artificial intelligence system, language model and/or machine learning system;
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2.6.4. copy, reproduce, publish, distribute, redistribute, broadcast, transmit, resell, modify, adapt, alter, edit, abstract, store, archive, display publicly
or to third parties, sell, license, lease, rent, assign, transfer, disclose (in each case whether or not for charge) or in any way commercially
exploit, deal in or encumber any part of the Product;
2.6.5. permit any (direct or indirect) access or use of the Product (or any part) in any manner by any third party (including, without limitation, use in
connection with the internet or any timesharing or service bureau, software as a service, outsourced or other similar service or making the
Product (or any part) available to any third party);
2.6.6. create derivative works or improvements of the Product other than as (and only to the extent) agreed in writing with Malted and provided that
Malted will own the IPR in any such derivative works or improvements (which the Customer hereby assigns on their creation to Malted);
2.6.7. permit the Product (or any part) to become incorporated into any other program or service or to be combined or merged with any other
software, platform or program;
2.6.8. attempt to decode, reverse engineer, disassemble, correct errors, observe, translate, study or test the functioning of, decompile or otherwise
derive, discover, convert or access the source code or functionality of the Product including using the Output Reports;
2.6.9. remove, alter, obscure, translate, combine, supplement or change any trademarks, terms, warranties, disclaimers, or IPR, proprietary rights
or other symbols, notices, marks, or serial numbers on or relating to the Product;
2.6.10. release, publish or make available any results of its use of (or evaluation of) the Product (including, but not limited to, any data concerning
availability, functionality or performance) publicly or to any third party;
2.6.11. access or use the Product (directly or indirectly) for any purpose or in any manner that: (a) is unlawful under any applicable law (including,
without limitation, all laws relating to privacy, data protection and use of systems and communications); (b) is in breach of this Agreement;
(c) disrupts, disables, interferes with or otherwise impedes in any manner the operation of the Product (in whole or in part) or the operations,
business or systems of any person or entity; (d) harms, endangers or may endanger any person; or (e) infringes any IPR; or
2.6.12. use the Product (directly or indirectly) to store, transmit or process in any manner any data that: (a) contains any Virus, disabling code or
malicious software (including, but not limited to, malware, trojan horses, ransomware and spyware); or (b) is unlawful, obscene, indecent,
threatening, harassing, racially or ethnically offensive, libellous or defamatory.
2.7. Malted reserves the right to implement and deploy security measures (including a circuit-breaker) capable of interrupting and/or stopping the
Product. Malted shall be entitled to deploy such measures without notice in any circumstances where Malted, acting reasonably, considers it
is reasonable to do so (including to protect the Product and/or Customer Materials) or to comply with applicable law.
2.8. If and to the extent that the Customer requests that Malted provide any Additional Service and/or the Customer uses or accesses the
Product (or requests to do so) outside the scope or levels of the Customer's Subscription Tier (including the number of users and/or
Interactions) then:
2.8.1. Malted shall be entitled to provide such Additional Service and, subject to Clause 2.8.2, each Additional Service shall (if Malted agrees to
provide it) be subject to this Agreement as if it were an agreed Service (including without limitation the limitations on liability and disclaimers
in Clause 12); and
2.8.2. Malted shall be entitled to monitor the use of Additional Services and charge for each Additional Service on a time and materials basis, at
the rates detailed in the Rate Card, or as otherwise agreed between the parties in writing pursuant to an Order Form, and the Customer
shall pay such charges in accordance with Clause 7.
2.9. The parties shall be entitled to execute an Order Form for Additional Services, to which these Terms shall apply.
3. DEPLOYMENT – MALTED HOSTED
3.1. 3.2. 3.3. 3.3.1. 3.3.2. 3.3.3. This Clause 3 applies where the Product is provided on a Malted Hosted basis.
Malted shall provide the Customer with use of a cloud account and VPC network or (where agreed with a Customer in the Order From) other
cloud hosting account (together, the "Hosting Account") to enable to Customer to use the Product. The Customer shall use the Hosting
Account in connection with the Product only (and not for any other purpose).
The Customer shall co-operate with Malted in connection with the set-up and configuration of the Hosting Account and the Product on the
Hosting Account including by:
providing Malted with sufficient details of its preferences and expectations in connection with the set-up and configuration, including details
of the IPs and/or CIDR ranges requested by it in connection with the Product and details of any preferred geographical restrictions;
providing Malted with assistance, and access to employees and contractors of the Customer with relevant technical know-how, to enable the
set-up and configuration of the Product for the Customer; and
ensuring that security measures and password and other authentication procedures reasonably requested by Malted are implemented in
relation to the Product.
4. DEPLOYMENT – CUSTOMER HOSTED
4.1. 4.2. 4.3. This Clause 4 applies only where the Product is provided on a Customer Hosted basis.
Subject to this Agreement and payment of the Fees, Malted grants the Customer a non-exclusive licence to use the Product for the Purpose
for the Subscription Term.
The Customer shall arrange and provide (and pay its relevant third party hosting and other service providers) for sufficient compute budget
and spend (including where relevant AWS budget and spend) in order to enable Malted to perform its obligations under the Agreement,
including to provide the Product to the Customer. On request, Malted shall give the Customer a non-binding, high-level estimate of the
annual compute costs which it expects may be incurred in connection with the Product when it is hosted on a Customer Hosted Basis. The
Customer acknowledges and agrees that it is responsible for hosting and is liable to pay such compute costs associated with the hosting
and its use of the Product.
4.4. Malted shall provide the Customer during the period set out in the Order Form or as otherwise agreed with Malted (the "Deployment
4.4.1. 4.4.2. Period") with:
initial installation and configuration of the Product on the Customer Systems;
integration of the Product with the Customer’s existing IT infrastructure;
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4.4.3. 4.4.4. 4.5. initial data migration and setup of the Product on the Customer Systems; and
user training and knowledge transfer relating to the Product,
in each case to seek to enable the Customer to use the Product in accordance with the terms of this Agreement.
Malted’s access to the Customer’s Systems and Customer Data shall be solely for the purpose of providing the deployment assistance
specified in Clause 4.3 for the Deployment Period (and Malted shall not be required to provide Services in connection with the Customer
Systems, Customer Data and/or the hosting or deployment of the Product following the Deployment Period unless otherwise agreed in
writing).
4.6. 4.6.1. 4.6.2. 4.6.3. 4.6.4. Upon completion of the Deployment Period:
Malted shall provide the Customer with documentation relating to the installation and configuration of the Product on the Customer Systems;
the Customer shall revoke Malted's access credentials to the Customer Systems promptly;
any ongoing support relating to the Product shall be provided in accordance with the Support and Maintenance Terms;
Malted shall not be required to access and/or provide Services in connection with the Customer Systems, unless otherwise agreed in
writing; and
4.6.5. the Customer shall assume full responsibility for the security of the Product on the Customer Systems.
4.7. The Customer shall:
4.7.1. 4.7.2. 5. AUTHORISED USERS
provide Malted with the necessary access credentials and permissions to allow Malted to provide the Services detailed in this Clause 4; and
be responsible for, and ensure that, appropriate backup copies of all Customer Systems and Customer Data are maintained.
5.1. The Customer shall procure that only Authorised Users receive the Services and access and use the Product on its behalf and that such
receipt and access and use complies at all times with the terms of this Agreement.
5.2. The Order Form includes details of the number of Authorised Users included within the Customer’s Subscription Tier. The Customer is
entitled to remove any individual as an Authorised User and replace them with another individual, but Authorised User accounts cannot be
shared or used by more than one individual at the same time.
5.3. To the extent that the number of users that the Customer authorises to use and/or access the Product exceeds the number of Authorised
Users included within the Customer's Subscription Tier (including as a result of a breach of Clause 5.2 by the Customer), then use of and/or
access to the Product by each additional Authorised User shall constitute an Additional Service (and the Customer shall pay Malted for such
Additional Service in accordance with Clause 7).
5.4. The Customer shall be liable for the acts and omissions of the Authorised Users as if they were its own. Any obligation on the Customer to
do, or to refrain from doing, any act or thing under this Agreement shall include an obligation upon the Customer to procure that its
Authorised Users also do, or refrain from doing, such act or thing.
6. SUPPORT AND MAINTENANCE
The Support and Maintenance Terms in Schedule 2 shall apply between the parties from such date as Malted provides the Customer with live,
operational access to the Product in the production environment. The Support and Maintenance Terms shall not apply, and Malted shall not
be required to provide any Support Services, until Malted has completed any agreed development and build Services required to enable the
Customer to access and/or use the Product and/or the Services and/or Product go-live.
7. FEES AND PAYMENT TERMS
7.1. 7.2. 7.2.1. 7.2.2. 7.3. 7.4. 7.5. 7.6. 7.7. Malted shall invoice the Customer for the Annual Fee following the Commencement Date and each anniversary of the Commencement
Date. The Annual Fee is the Fee payable by the Customer to Malted for each year of the Subscription Term for the Services included in the
Customer's Subscription Tier.
Malted shall invoice the Customer following the end of each quarter of the Subscription Term for:
any Fees incurred by the Customer for Additional Services which shall be calculable on a time and materials basis in accordance with the
Rate Card (unless otherwise agreed in writing by the parties pursuant to an Order Form); and
(a) any other fees or charges agreed between the parties; and (b) expenses incurred by Malted in connection with the Agreement.
Any invoices issued in accordance with Clause 7 shall be paid by the Customer within 30 days of the date of the invoice to a bank account
nominated by Malted in writing.
All fees, charges and expenses payable under this Agreement are exclusive of VAT, which shall be paid by the Customer at the rate and in
the manner prescribed by law.
If the Customer fails to make any payment due to Malted under this Agreement by the relevant due date for payment, then, without limiting
Malted's remedies under Clause 8 and 13, 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. Such interest shall accrue on a daily basis from the due date until actual payment of the
overdue amount. The Customer shall pay the interest together with the overdue amount.
Malted AI shall be entitled to increase the Annual Fee and the rates in the Rate Card by the percentage change of the UK Retail Price Index
for the previous year, on 90 days' notice to the Customer prior to each anniversary of the Commencement Date.
Malted shall be entitled to:
7.7.1. 7.7.2. 7.7.3. update and/or replace the Rate Card;
increase the Annual Fee; and/or
update and/or replace the Order Form to reflect the Services included within each Subscription Tier,
in each case, on 90 days' written notice to the Customer prior to the end of the Initial Subscription Term and/or then current Renewal Period,
in which case the relevant update or increase shall come into effect on the commencement of the Renewal Period immediately following
such notice being given.
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7.8. Subject to Clause 13.2.2, the Customer shall not be entitled to any refund or discount of the fees or charges payable under this Agreement
except in the event that the Customer terminates this Agreement under Clause 13.3.1 (in the case of a material breach of this Agreement by
Malted) in which case the Customer shall be entitled to a pro-rata refund in respect of the fees or charges pre-paid by the Customer for
Services up to the date of termination.
7.9. The Customer shall be entitled to request an upgrade to its Subscription Tier during the Subscription Term, including to include New
Modules. Any such upgrade shall be agreed between the parties in writing including by executing (and/or amending) an Order Form in
respect of the upgraded Subscription Tier (which shall include details of the Fees payable by the Customer in connection with the upgrade).
7.10. The Customer agrees that work carried out in connection with the deployment of the Product and any New Modules, including pursuant to
Clause 3 to 4, shall constitute Additional Services and shall be charged on a time and materials basis in accordance with Clause 7.
8. SUSPENSION
8.1. Malted shall be entitled to suspend access to the Product and/or the provision Services (or any part) to the Customer and/or all or some of
the Authorised Users if:
8.1.1. Malted reasonably suspects that there has been any misuse of, unauthorised access to, security incident and/or suspected Virus relating to
the Product or breach of this Agreement;
8.1.2. 8.1.3. 8.2. the Customer fails to pay sums due to Malted by the due date for payment; or
required by law, by court or governmental or regulatory order.
If Malted exercises its right to suspend access to the Product and/or the provision of the Services, then Malted will be entitled to take steps
to investigate the issue and may restore access to the Product and the provision of the Services or continue to suspend access to the
Product and the provision of the Services at its discretion.
8.3. The Fees shall remain payable by the Customer during any period of suspension notwithstanding that the Customer or some or all of the
Authorised Users may not have access to the Product or be able to receive the Services.
9. CONFIDENTIALITY AND DATA PROTECTION
9.1. 9.2. 9.2.1. 9.2.2. Each party (the "receiving party") undertakes to the other party (the "disclosing party") that it shall maintain the confidentiality of the
disclosing party's Confidential Information and shall not without the prior written consent of the disclosing party, disclose the disclosing
party's Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations
under this Agreement.
The receiving party may disclose the disclosing party's Confidential Information only to those of its employees, contractors and professional
advisers to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement and
provided that:
the disclosing party shall procure that its employees, contractors and professional advisers are made aware of and agree in writing to
observe the obligations in this Clause 9; and
the disclosing party shall be responsible for the acts and omissions of its employees, contractors and professional advisers as if they were
the Customer’s own acts or omissions.
9.3. 9.3.1. 9.3.2. 9.3.3. 9.3.4. The provisions of Clause 9.1 and Clause 9.2 shall not apply to information which:
is or comes into the public domain through no fault of the disclosing party, its officers, employees, agents or contractors;
is lawfully received by the disclosing party from a third party free of any obligation of confidence;
is independently developed by the disclosing party, without access to or use of the receiving party's Confidential Information; or
is required by law, by court or governmental or regulatory order to be disclosed provided that the disclosing party, where possible, notifies
the receiving party at the earliest opportunity before making any disclosure.
9.4. 9.4.1. 9.4.2. In relation to personal data processed in connection with this Agreement:
each party shall comply with Data Protection Laws in connection with the processing of personal data pursuant to this Agreement;
the Customer will complete the Details of Processing in the Order Form and shall keep the Details of Processing updated during the
continuance of this Agreement so that the Details of Processing reflect the processing of personal data by Malted (as a processor) under
this Agreement; and
9.4.3. 9.5. the Data Processing Terms shall apply (and are hereby incorporated by reference).
Each party's obligations under this Clause 9 shall continue in full force and effect during and after the continuation of this Agreement.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. 10.2. 10.3. The Customer acknowledges and agrees that all IPR in and to the Product (including, among other things, in all underlying software,
models, algorithms, large and small language models, pipelines, interfaces and DevOps infrastructure incorporated in and/or used in
connection with the Product and all associated documentation and data (other than the Customer Materials and the Output Reports)) belong
to and shall remain vested in Malted or its licensor(s) (as applicable).
The Customer acknowledges and agrees that the Product offers machine learning and will continuously develop, be refined, improve and
evolve including as a result of its use and processing of data and any Distillation and that Malted will own the IPR in and to the Product and
relating to or used in connection with the supply of the Services, including in any software, works, models, materials, functionality and
features developed prior to and/or during the course of this Agreement, including in response to any Distillation, feedback and/or requests
for certain functionality from the Customer. The Customer is not granted any rights in relation to the Product or the IPR held by Malted
except for those rights expressly granted in this Agreement. The Customer shall promptly execute all such documents and do such things as
Malted may consider necessary to give effect to this Clause 10.2.
All IPR in and to the Customer Materials and Output Reports belongs to the Customer (or, if relevant, its licensors). The Customer shall use
the Output Reports for the Purpose only, except that the Customer may disclose the Output Reports which it is required to disclose by law,
or any court, any governmental, regulatory or supervisory authority or any other authority of competent jurisdiction.
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10.4. Malted warrants that the receipt of the Services and the use of the Product by the Customer in accordance with the terms of this Agreement
shall not infringe the IPR of any third party, provided that this warranty shall not apply to the use of any of the Customer Materials in
connection with the Services and/or Products and/or to the use and/or generation of the Output Reports which is and shall remain the
Customer's responsibility including pursuant to clause 10.9.3.
10.5. The Customer:
10.5.1. 10.5.2. 10.5.3. 10.6. shall use the Output Reports and (if and to the extent it is given access to them by Malted) the Synthetic Data and Model Weights solely in
connection with the Purpose;
shall not use the Output Reports or the Synthetic Data and Model Weights for any other purpose, including that the Customer shall not use
the Output Reports or Synthetic Data and Model Weights to train any system including any artificial intelligence system, language model
and/or machine learning system; and
shall not sub-licence, resell or give any third party access to, or use of, the Output Reports and/or Synthetic Data and Model Weights.
Malted shall not use the Customer Data, Customer Materials or the Output Reports to train artificial intelligence platforms for its other
customers.
10.7. 10.7.1. 10.7.2. 10.7.3. 10.7.4. 10.7.5. 10.7.6. 10.7.7. The Customer represents, warrants and undertakes that:
it has, and shall continue to have for the continuance of this Agreement all rights, titles, licences, permits, permissions, consents and
approvals necessary (a) to provide the Customer Materials to Malted; and (b) for the hosting, use, processing and other utilisation of the
Customer Materials on the Product;
the Customer Materials (and the IPR therein) are either the property of the Customer or are licensed to the Customer and Malted is
authorised to use the same in order to perform its obligations under this Agreement (including to provide the Services);
the use of the Customer Materials as permitted by this Agreement does not, and will not (i) infringe the IPR of any third party or (ii) place
Malted in breach of contract or applicable law;
the Customer Materials and the systems, methods and means of transferring the Customer Materials to Malted or for use on the Product,
shall not contain any Virus;
it has taken all reasonable steps to ensure that the Customer Materials are complete, accurate and free from errors or omissions;
the Customer Systems are secure; and
the Customer Materials do not include any systems, software, data or other materials or information which are subject to any export control
laws.
10.8. The Customer agrees that:
10.8.1. 10.8.2. it shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Materials;
Malted shall be entitled to (a) unless otherwise agreed with the Customer, permanently delete or otherwise remove, delete and/or suspend
access to any Customer Materials and/or Output Reports at the end of the Subscription Term (or otherwise acting reasonably); and/or (b)
disclose Customer Materials and/or Output Reports to law enforcement authorities at any time to the extent Malted is legally required to do
so (in each case without the need to notify or consult the Customer); and
10.8.3. Malted is not required to store or retain any Customer Materials or Output Reports at any time during or after the Subscription Term unless
otherwise agreed with the Customer (in which case (unless the relevant back-up service is included as a Service within the Customer’s
Subscription Tier) Malted may charge for such storage or back-up services as an Additional Service; and
10.8.4. it is responsible for taking appropriate measures to back up and retain any required copies of any Customer Materials and any other
measures to provide or recover any Customer Materials.
10.9. Malted shall be entitled to use any feedback and suggestions for improvements or changes relating to the Product and/or the services that it
offers, provided by or on behalf of the Customer or by any Authorised User (collectively,
"Feedback") for any purpose without charge or
limitation. The Customer hereby assigns (or shall procure the assignment of) all IPR in the Feedback with full title guarantee (including by
way of present assignment of future IPR), and with waiver of all moral rights, to Malted at the time such Feedback is first provided to Malted.
10.10. Either party shall be entitled with the prior written consent of the other party to publicise and disclose to third parties the fact that the
Customer is a customer of Malted, including through the production, use and distribution of promotional, advertising and other marketing
materials (which may include a case study example of the Services and Product provided under this Agreement and used by the Customer).
Each party hereby grants to the other party a non-exclusive, royalty free, perpetual, irrevocable licence to use the Customer's trade mark,
logo and branding on promotional, advertising and other marketing materials, for that purpose.
11. AUDIT
11.1. The Customer shall maintain accurate records relating to its (and its Authorised Users') installation and use of the Product and Services
under this Agreement which are sufficient to demonstrate the Customer's compliance with this Agreement and shall provide access to and/or
copies of such records to Malted on its reasonable request.
11.2. Where Malted reasonably suspects that there has been any misuse of, unauthorised access to, security incident and/or suspected Virus
relating to the Product or breach of this Agreement, the Customer shall permit Malted (and/or its nominee) access to its premises and
systems to inspect the relevant Customer Systems and/or audit (and take copies of) the relevant records of the Customer, in each case to
verify that the Customer is in compliance with its obligations under this Agreement.
1. LIMITATION OF LIABILITY
1.1. 1.2. The extent of Malted’s liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in
any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this Clause 12.
Subject to Clause 12.6, Malted shall not be liable for any breach, delay or default in the performance of this Agreement to the extent the
same (or the circumstances giving rise to the same) arises or was contributed to by: any breach of the Agreement by the Customer;
incorrect installation, operation, configuration or use of the Product or Services by the Customer or any Authorised User; a failure by the
Customer to perform the Customer Obligations; a failure of the Customer to perform its responsibilities and obligations in connection with
hosting the Product (where the Product is hosted on a Customer Hosted basis); or any event or sequence of events beyond Malted’s
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1.3. 1.4. 11.3. 11.3.1. 11.3.2. 11.3.3. 11.3.4. 11.3.5. 11.3.6. 11.3.7. 11.3.8. 11.3.9. 11.3.10. 11.3.11. 11.3.12. 11.3.13. reasonable control preventing or delaying it from performing its obligations under this Agreement (including, without limitation, any matters
relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the
internet).
Subject to Clause 12.6, Malted’s aggregate liability howsoever arising under or in connection with this Agreement shall not exceed the
Annual Fee paid by Customer to Malted in the preceding 12 month period.
Subject to Clause 12.6, the Customer's aggregate liability howsoever arising under or in connection with this Agreement (other than liability
to pay the Fees) shall not exceed the Annual Fee payable by Customer to Malted in the preceding 12 month period.
The Customer acknowledges and agrees that:
all warranties, conditions, terms, undertakings and obligations including, without limitation, any implied terms relating to quality, fitness for
any particular purpose or ability to achieve a particular result relating to the provision of the Product and Services by Malted are excluded to
the fullest extent allowed by applicable law;
there is no guarantee, and Malted makes no warranty or representation that, the Product or the Services are capable of achieving, or will
enable the Customer to achieve, its intended commercial result or the Customer's requirements or expectations, including without limitation
the Product Objective;
there is no guarantee that the Product will be compatible with any other software or equipment (including without limitation the Customer
Systems);
the installation, hosting and use of the Product and performance of the Services are subject to the Customer's compliance with the terms
and conditions of this Agreement (including the Customer performing its obligations under this Agreement (including the Customer
Obligations) with reasonable skill and care and in a timely manner);
any data or information generated by the Product is provided to the Customer without any duty of care or guarantee;
Malted is not qualified to and does not hold itself out as qualified to, give any legal, accounting or other professional or regulated advice,
opinions and/or services;
the use of the Product and the performance of the Services does not include any legal, accounting or other professional or regulated
services and Malted gives no assurance that the use of the Product or performance of the Services will comply with or satisfy any legal or
regulatory obligation;
Malted has no obligation (howsoever arising, whether under contract, tort, in negligence or otherwise) to ensure that access to the Product
or use or provision of the Services are provided: uninterrupted or error free; available, up-to-date or maintained; compatible or operate
correctly with any particular software, hardware or other systems; secure; or to meet the Customer’s needs or expectations or the Product
Objective;
Malted shall be entitled to monitor, collect, store and use any information in, about or relating to the Customer's installation, access and use
of the Product, Services and/or the Customer Materials (including, without limitation, to monitor for or detect breaches of this Agreement or
errors and for the maintenance, development and improvement of the Product and/or Malted's services);
the Product may contain third party materials and/or data provided by a third party and Malted accepts no liability in relation to such
materials and/or data;
the Product is hosted using the services of third parties and Malted accepts no liability in relation to such third party services (whether or not
the Product is Malted Hosted or Customer Hosted);
the Customer shall be solely responsible for its use of and/or reliance on any Output Reports; and
it is in the best position to ascertain any likely loss it may suffer in connection with this Agreement and that it is therefore responsible for
making appropriate insurance arrangements to address the risk of any such loss and that the provisions of this Clause 12 are reasonable in
these circumstances.
11.4. Notwithstanding any other provision in this Agreement, neither party's liability shall be limited or excluded in any way in respect of the
following: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; wilful misconduct; breach of the
confidentiality or intellectual property obligations in this Agreement; or any other losses which cannot be excluded or limited by applicable
law.
2. TERM AND TERMINATION
2.1. 11.4.1. 11.4.2. 11.5. 11.5.1. 11.5.2. 11.5.3. 11.6. 11.6.1. The Agreement shall come into force on the Commencement Date and unless terminated earlier in accordance with this Clause 13 shall
continue for the duration of the Initial Subscription Term and, thereafter, this Agreement shall automatically renew for successive periods of
12 months (each a "Renewal Period"), unless:
either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal
Period, in which case this Agreement shall terminate upon the expiry of the then current Initial Subscription Term and/or Renewal Period; or
otherwise terminated in accordance with the provisions of this Agreement,
and the Initial Subscription Term together with any subsequent Renewal Periods (if any) shall constitute the "Subscription Term"
.
Malted may terminate the Agreement (and any other agreement between the Customer and Malted) at any time if:
the Customer fails to pay any amount due under this Agreement (and/or any other agreement between the Customer and Malted) on the
due date for payment and remains in default not less than 14 days after being notified to make that payment;
due to an unforeseen change in law or regulation, Malted ceases to be able to provide the Product and/or Services generally to users and/or
customers (provided that, in such circumstances, the Customer shall be entitled a refund of the most recent Annual Fee paid by the
Customer up to the date of termination (calculated on a pro rata basis)); and/or
there is a change of Control of the Customer
Either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party:
commits a material breach of the terms of this Agreement (and/or any other agreement between the Customer and Malted) and (if that
breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so; and/or
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11.6.2. 2.2. 11.6.3. 11.6.4. 11.6.5. 2.3. (i) becomes unable to pay its debts; (ii) enters into liquidation (except for the purposes of a solvent amalgamation or reconstruction); (iii)
makes an arrangement with its creditors; (iv) has a receiver, administrator or administrative receiver appointed over all or any of its assets;
(v) ceases or threatens to cease trading or is dissolved; (vi) takes or suffers any similar action in consequence of a debt; or (vii) is subject to
any procedure equivalent to any of the preceding matters in any other jurisdiction.
Immediately on termination or expiry of this Agreement:
the rights granted to the Customer under this Agreement shall cease and the Customer shall (and shall procure that each Authorised User
shall) stop accessing and using the Services, the Product, the Hosting Account, Synthetic Data and Model Weights and Malted's
Confidential Information and shall promptly delete, destroy or return (at Malted's choice) all: (i) copies of documentation relating to the
Product and Hosting Account; (ii) Synthetic Data and Model Weights; and (iii) Malted's Confidential Information, in each case in its or its
Authorised Users' possession or control; and
the Customer shall uninstall the Product (and all copies of it) from the Customer Systems and shall delete, destroy or return them (at
Malted's choice).
Malted shall delete, destroy or return (at the Customer’s choice) the Customer’s Confidential Information.
Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of
termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond
termination.
2.4. Termination of an Agreement shall not automatically terminate any other agreement between the Customer and Malted which shall continue
unless terminated in accordance with applicable terms.
12. GENERAL
12.1. 12.2. 12.3. 12.4. 12.5. 12.6. 12.7. 12.8. 12.9. 12.10. 12.11. 12.12. 12.13. If any provision of this Agreement or part thereof is rendered void, illegal or unenforceable in any respect under any law, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
A variation of this Agreement is only effective if made in writing and signed by or on behalf of each of the parties. For this purpose, a
variation of this Agreement includes any addition, deletion, supplement or replacement, howsoever effected.
The Customer shall comply with all applicable export control laws that apply to the Product, the Customer Materials and/or the Output
Reports. The Customer shall not export, install, access, use, transmit, or re-export, directly or indirectly, separately or as a part of a system,
the Product, the Customer Materials or the Output Reports (or any part) in or to any country or territory for which an export licence or other
approval is required.
All notices, requests, demands or other communications to or upon the parties to this Agreement shall be in writing in the English language
and may be given by personal delivery (including by way of delivery of internationally recognised commercial courier) or by being sent by
first class recorded mail if posted to an address in the United Kingdom or by email, to the relevant party's address detailed in the Order
Form. Any such notice, request, demand or communication shall (a) if delivered personally, be deemed to have been received at the time of
such delivery or if delivery is not on a Business Day on the next Business Day following such delivery; (b) if given by first class recorded
mail, be deemed to have been received on the second Business Day after posting; (c) if given by email, be deemed to have been received
on transmission of such email except where email is received by the sender that the email has not been received or correctly delivered
(which, for the avoidance of doubt, will not include an automated out of office response), if deemed receipt under the previous paragraphs of
this Clause 14.4 is not within business hours (meaning 9.00 a.m. to 5.30 p.m. Monday to Friday on a day that is a Business Day), at 9.00
a.m. on the next Business Day in the place of receipt.
Neither party shall be liable to the other party for any delay or non-performance of its obligations under this Agreement (other than
obligations to pay fees) arising from any event beyond its reasonable control including, without limitation: act of God, governmental act, act
of terrorism, war, fire, earthquake, flood, embargo, riot, sabotage, explosion, pandemic, epidemic, civil commotion or failure or delay of a
third party service provider ("Force Majeure Event"), provided it notifies the other party as soon as reasonably practicable of the Force
Majeure Event and its likely duration.
Malted may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its
rights or obligations under this Agreement. The Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a
trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the right to use the Product), in
whole or in part, without Malted's prior written consent.
No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate
as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy. No
single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the
exercise of any other right, power or remedy. A waiver of any term, provision, condition or breach of this Agreement shall only be effective if
given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
The Customer shall pay all sums that it owes to the Malted under this Agreement without any set-off, counterclaim, deduction or withholding
of any kind, save as may be required by law.
Nothing in this Agreement shall be deemed to constitute a partnership between the parties hereto or constitute any party the agent of any
other party for any purpose.
A person who is not a party to this Agreement has no right to enforce any term of this Agreement against any of the parties pursuant to the
Contracts (Rights of Third Parties) Act 1999.
Each party represents and warrants to the other that it has the right, power and authority to enter into this Agreement and grant to the other
the rights contemplated in this Agreement and to perform its obligations under this Agreement.
This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and
supersedes all prior proposals, agreements and understandings whether written or oral between the parties or any of them or their advisors
relating to such subject matter.
Each of the parties acknowledges and agrees that in entering into this Agreement, it has not relied, and does not rely, on any statement,
representation, warranty, assurance, promise or undertaking, of any nature whatsoever made by any person (including the other party or any
of its employees, directors, professional advisers or agents) not expressly included in this Agreement as a warranty (a "Prior Non-contractual
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12.14. 12.15. SCHEDULE 1 Representation"). To the extent that, notwithstanding the foregoing a Prior Non-contractual Representation has been made, the relevant
party unconditionally and irrevocably waives any claims, rights or remedies it may have in relation thereto, without prejudice to any claim it
may have under this Agreement for breach of any express warranties set out herein. Nothing in this Clause or in this Agreement shall,
however, operate to limit or exclude any liability of any party, or the remedies available to any party for fraud, including fraudulent acts,
misstatements and misrepresentations.
Each Order Form may be entered into in any number of counterparts and by the parties to it on separate counterparts, each of which when
so executed shall be an original and all the counterparts shall together constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of
England shall have exclusive jurisdiction to settle any disputes that may arise out of or in connection with this Agreement.
– DATA PROCESSING TERMS
1. 2. 2.1. 2.2. 2.3. 2.4. 2.5. 2.6. 2.7. 2.8. 2.9. The Customer warrants and undertakes to Malted that the details of the types of personal data which shall be processed by Malted under
this Agreement, the categories of data subjects to which such data relates, and the permitted nature, purpose and duration of Malted's
processing of such personal data are set out in the Order Form.
Malted, in relation to any personal data provided to or obtained by Malted for processing on the Product and/or in connection with the
Services (the "Data") which it processes as a data processor, shall:
process that Data only on and in accordance with the Customer's documented instructions (unless Malted is required by applicable laws to
otherwise process the Data);
ensure that any persons authorised by it to process Data are bound by appropriate confidentiality obligations in relation thereto;
take, implement and maintain appropriate technical and organisational measures in relation to the Data to ensure a level of security
appropriate to the level of risk, in particular relating to a potential personal data breach of the Data (as required by Article 32 of the GDPR);
be entitled to appoint any third party to process any of the Data on its behalf (each a "sub-processor") subject to compliance with the
requirements of the Data Protection Laws, including by entering into a contract with that third party which imposes the same data protection
obligations on that party as are imposed on Malted in this Agreement, and Malted shall provide a list of its sub-processors to the Customer
on request;
only transfer Data to a outside of the UK or EEA in accordance with Data Protection Laws;
assist the Customer (at the Customer's cost) in fulfilling its obligations under the Data Protection Laws taking into account the nature of
processing and information available;
inform the Customer, without undue delay (i) if Malted becomes aware of a personal data breach and/or (ii) if in Malted's opinion an
instruction from the Customer infringes the Data Protection Laws;
at the end of the provision of services relating to processing, delete or return to the Customer (as requested by the Customer) all Data in
Malted's possession or control (except to the extent that applicable law requires storage of that Data by Malted and/or its sub-processors);
keep, and make available to the Customer on the Customer's request, all such documentation and information as is necessary to
demonstrate Malted's compliance with the requirements of the Data Protection Laws and the data protection obligations in this Agreement;
and
2.10. allow for and contribute to audits and inspections conducted by the Customer or another auditor mandated by the Customer relating to
Malted's compliance with the data protection obligations in this Agreement, provided that: (i) the Customer must give a minimum thirty (30)
days’ notice of its intention to audit; (ii) the Customer may exercise the right to audit no more than once in any calendar year unless
additional audits are required by a regulator; (iii) Malted may restrict access to certain facilities, systems and records to ensure commercial
and/or client confidentiality; (iv) each auditor will be required to sign such non-disclosure agreement as reasonably required by Malted prior
to the audit; and (v) the Customer shall compensate Malted for its costs incurred in connection with any audit.
SCHEDULE 2 – SUPPORT AND MAINTENANCE
PART 1 – SUPPORT AND MAINTENANCE TERMS
These Support and Maintenance Terms shall apply between Malted and the Customer in relation to the Support Services.
1. DEFINITIONS AND INTERPRETATION
2.5. Words and expressions used in these Support and Maintenance Terms shall have the meanings given to them in the Terms or the Order
Form (as applicable) and the following words and expressions shall have the following meanings:
"Error" means a verifiable failure of the Supported Software to materially conform with the specifications contained in the Documentation;
"Relief Event" means: any breach of these Support and Maintenance Terms or the Agreement by the Customer; any Force Majeure Event;
any failure by the Customer to provide access to and/or use of the Customer Systems, Customer Materials and/or Customer Hosting
Account in accordance with this Agreement and/or as required by Malted to provide the Services; and/or any system downtime,
unavailability or error caused directly or indirectly by any act or omission of the Customer, its Affiliates and/or its third party service providers;
and
"Resolution Target Times" means the timeframes targeted by Malted for resolving an Error brought to the attention of Malted via a Ticket,
as detailed in Part 2 of this Schedule;
"Response Target Times" means the timeframes targeted by Malted for acknowledging receipt of a Ticket from the Customer, as detailed in
Part 2 of this Schedule;
"Service Level" means 99.9% uptime of the Product during Support Hours, measured on a monthly basis;
"Severity Levels" means the levels of severity detailed Part 2 of this Schedule and "Severity Level" means any one of them;
"Support Hours" means the hours between 9.00 am and 5.00 pm local time in London, United Kingdom on Business Days (and, for the
avoidance of doubt, excluding bank holidays in England), excluding periods where System Maintenance is taking place;
"Support Services" means the services to be provided by Malted set out in these Support and Maintenance Terms;
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"Supported Software" means the most recent version and release of Product made available to or provided to the Customer in accordance
with the terms of the Agreement;
"System Maintenance" means planned or emergency maintenance of the Product;
"Target Times" means the Response Target Times and Resolution Target Times; and
"Ticket" means a report of an Error in the form requested by Malted from time to time.
2.6. The rules of interpretation in Clause 1.2 and Clause 1.3 of the Terms shall apply to these Support and Maintenance Terms.
3. SERVICE LEVELS
12.16. Malted shall use reasonable endeavours to meet or exceed the Service Level where the Product is Malted Hosted. Malted makes no
commitment that the Product will meet or exceed the Service Level where the Product is Customer Hosted.
12.17. Malted shall be entitled to conduct System Maintenance (and the calculation of service uptime for the purposes of calculating the Service
Level shall not include periods of time in which System Maintenance is taking place). Malted shall use reasonable endeavours to: provide
the Customer with 3 Business Days' notice of any planned System Maintenance; and/or conduct planned System Maintenance outside of
Support Hours.
4. PROVISION OF SUPPORT SERVICES
4.1. Subject to the provisions of the Agreement and receipt of the Annual Fee, Malted shall provide the Support Services to the Customer during
the Support Hours during the Subscription Term.
12.18. 4.2. Malted shall use its reasonable endeavours to meet the Target Times for the Support Services but time shall not be of the essence.
The provision of the Support Services does not imply that Malted shall be successful in correcting Errors or that Malted shall be able to
assist the Customer in achieving any specific results from the Supported Software including which may not be technically feasible.
4.3. Malted shall not be liable for any breach, delay or default in the performance of this Agreement and/or for any failure to achieve any Service
Level, to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Relief Event.
4.4. The Customer shall complete a Ticket in respect of each request for Support Services in connection with any Error and provide Malted with
all information and materials reasonably required by Malted for the purpose of investigation, diagnosis and correction of each Error. Unless it
otherwise elects, Malted is not obliged to provide any Support Service in connection with any Error which has not been reported on a duly
completed Ticket.
4.5. The Customer shall submit each Ticket to Malted's Zoho Desk account (using the details provided by Malted from time to time) or to
support@malted.ai.
5. ERROR RESOLUTION
5.1. Malted shall use reasonable endeavours to address Errors based on the Severity Level assigned to each incident by Malted (using Part 2 of
this Schedule). In the event that the Customer considers that a Ticket has not been awarded the correct Severity Level by Malted, the
Customer shall inform Malted by following-up on a Ticket (using the same channel as the relevant Ticket was submitted in) and marking the
Ticket as "Escalated"
. Only those employees and contractors of the Customer which Malted has pre-approved in writing may request to
escalate a Ticket.
5.2. Progress against Target Times shall be measured from Malted's receipt of the completed Ticket. In the event that an Error is resolved such
that it becomes a lower Severity Level, then progress against Target Times for the resulting lower Severity Level Error shall be measured
separately for the purposes of this Agreement from the time that the relevant Error becomes a lower Severity Level.
5.3. In respect of any Target Times, time shall not be of the essence.
6. CUSTOMER’S OBLIGATIONS
6.1. 6.1.1. Without prejudice to the Customer's obligations in the Agreement, the Customer undertakes to:
provide Malted with all necessary information and support reasonably required by Malted for the performance of its obligations to the
Customer under these Support and Maintenance Terms;
6.1.2. notify Malted via a Ticket as soon as is reasonably practicable on becoming aware of an Error in the Supported Software or of any proposed
material change to the Customer’s operating system or of any other circumstances which might materially affect the operation of the
Supported Software;
6.1.3. ensure that remote access as specified by Malted from time to time is installed, permitted and operated in conjunction with relevant systems
at the Customer’s own cost and expense, for the purpose of assisting Malted in its provision of the Support Services;
6.1.4. ensure that all applications, data, interfaces, tools, software, hardware and equipment within its (or any of its Authorised Users’) control,
used in conjunction with the Supported Software, are properly maintained;
6.1.5. ensure that its Authorised Users, employees and other representatives co-operate fully with Malted in relation to the provision of the Support
Services;
6.1.6. ensure the health and safety of Malted’s employees, contractors and other representative while they are at the Customer’s premises (if
applicable);
6.1.7. 6.1.8. not request or permit or require anyone other than Malted to provide any support and maintenance services in respect of the Product; and
comply at all times with its obligations in the Agreement including these Support and Maintenance Terms.
7. SUPPORT SERVICES EXCLUSIONS
7.1. 7.1.1. 7.1.2. 7.1.3. 7.1.4. Malted is not obliged to provide Support Services in respect any Error resulting from, or contributed to by:
any breach by the Customer of the Agreement including these Support and Maintenance Terms;
any infrastructure failures or misconfiguration of the Product caused by the Customer;
any fault in any equipment or in any software used in conjunction with the Product;
installation or use of the Product other than for the purposes for which it is intended;
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7.1.5. installation or use of the Product with other software or on equipment with which it is incompatible (unless Malted required the use of that
other software or equipment);
7.1.6. 7.1.7. 7.1.8. 7.1.9. 7.1.10. 12.19. 7.1.11. 7.1.12. incorrect operation or use of the Product (including any failure to follow the Documentation);
the Customer’s (or its Authorised Users, employees, contractors and other representatives') negligent act or omission;
attempted repair, rectification or maintenance of the Product by any person other than Malted;
failure to notify Malted of any error within a reasonable period of time of it first occurring; or
the failure by the Customer to promptly implement any update or upgrade to the Product recommended and made available by Malted.
The following are outside the scope of the Support Services and shall be treated as Additional Services:
any support services outside of Support Hours;
any services in respect of Errors which relate to the responsibilities and/or services which have been designated to the Customer (including
as detailed in Clauses 3 and 4 of the Terms);
7.1.13. 7.1.14. 7.1.15. services relating to feature requests;
customisation of the Product and/or the development of any other bespoke or customised software;
services relating to resolving errors or issues with third-party tools and services and/or integration services in connection with third party
tools and services;
7.1.16. 7.1.17. services relating to expedited feature development or early access to unreleased versions of the Product;
services relating to non-standard deployment support in relation to the Product (including custom hosting, shadow environments and custom
releases);
7.1.18. consultancy and strategy services and/or training services; and
7.1.19. services relating to the integration of the Product with the Customer Systems.