API Sandbox Terms and Conditions

YOU (“PARTNER”) SHOULD REVIEW THESE THOUGHT MACHINE API TERMS AND CONDITIONS (“TERMS AND CONDITIONS”). YOU ARE NOT REQUIRED TO AGREE TO THE TERMS AND CONDITIONS BUT, IF YOU ACCESS ANY WEBSITE OR APPLICATION PROGRAM INTERFACE (“API”) OF THOUGHT MACHINE GROUP LIMITED (“THOUGHT MACHINE”), INCLUDING THE THOUGHT MACHINE WEBSITE LOCATED AT www.thoughtmachine.net (“WEBSITE”), TM SANDBOX APIS OR THE TM SANDBOX ENVIRONMENT, THEN YOU SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS AND TO HAVE ENTERED INTO A LEGALLY BINDING CONTRACT WITH THOUGHT MACHINE GROUP LIMITED. (“THOUGHT MACHINE”). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, THEN DO NOT ACCESS THE WEBSITE.

1. Definitions and interpretation

1.1. In this agreement, unless the context otherwise requires, the following words and expressions shall have the following meanings:

“End Date”

24 months from the Start Date;

“Group Member”

means, at any relevant time, in relation to any entity, an entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that entity, where “control” means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations (whether through holding of voting rights, by contract or otherwise);

“Intellectual Property Rights”

means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);

“Losses”

means any liabilities, costs (including court costs and reasonably attorney's fees), expenses, fines, penalties, damages and losses;

“Malicious Code”

means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.

“Partner Middleware”

means software programmes that Partner may test or develop using the TM Sandbox API’s;

“Posted Content”

means any information, data and/or content posted in the TM Sandbox Environment which is, or may be, visible to the community of users of the TM Sandbox Environment.

“Purpose”

means the testing and development by Partner of its software programmes (using non-production data only).

“Security Incident”

means any actual, attempted or suspected unauthorised access, use, disclosure, modification or destruction of information and/or data, and/or any event which has compromised, or may compromise, the security or integrity of the TM Sandbox APIs and/or Thought Machine (and its third party’s) servers, environments, infrastructure, systems, networks providing the TM Sandbox APIs or any Thought Machine data or confidential information.

“Start Date”

The date of last signature below;

“Term”

means a period commencing on the Start Date and continuing until the End Date, unless this agreement is earlier terminated or extended in accordance with its terms;

“Territory”

has the meaning given in the Front Sheet;

“Thought Machine”

has the meaning given in the Front Sheet; and

“Thought Machine Trade Marks”

means those trade marks identified in the Front Sheet, as may be updated from time to time by Thought Machine on giving written notice.

1.2. In this agreement, unless the context otherwise requires:

a. reference to a person includes a legal person (such as a limited company) as well as a natural person;

b. references to singular include the plural and vice versa and references to one gender include all other genders;

c. clause headings are for convenience only and shall not affect the construction of this agreement;

d. reference to “including” or any similar terms in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words;

e. reference to any legislation shall be to that legislation as replaced, consolidated, amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation; and

f. reference to this agreement includes each Appendix.

2. Use of Sandbox and Approval

2.1 These Terms and Conditions govern Partner’s use of Thought Machine’s application programming interfaces and associated Thought Machine software (“TM Sandbox APIs”) made available to Partner on the terms herein.

2.2. During the Term and subject to Acceptance (as such term is defined in clause 2.3 below), Thought Machine grants the Partner a non-exclusive, non-royalty bearing, non-transferable and non-sublicensable right to use the TM Sandbox APIs only in the sandbox environment made available by Thought Machine through the (“TM Sandbox Environment”) for the Purpose. By using or accessing the TM Sandbox APIs and/or the TM Sandbox Environment, Partner agrees to the Terms and Conditions contained herein. For the avoidance of doubt, these Terms and Conditions shall not permit any use of the TM Sandbox APIs for use by Partner or Partner’s end users in a production environment or for commercial use. Any use or access for production use shall be at Thought Machine’s sole discretion, require certain Thought Machine requirements to be met, and shall be subject to a separate written agreement between the Parties.

2.3. In order to access the TM Sandbox APIs Partner shall submit an application (“Partner Submission”) here and include all details required by Thought Machine. If an application is incomplete or further due diligence is required by Thought Machine, then Partner shall use all reasonable endeavours to promptly provide this information. Following Thought Machine’s receipt of all such information, Thought Machine shall review, and, at its sole discretion, accept (“Acceptance”) or refuse Partner’s Submission by email. Partner acknowledges and agrees that Thought Machine is not required to provide any reasons for its decision and Partner further warrants and represents that such Partner Submission is, and shall remain, true and accurate, and that Partner’s use of the TM Sandbox APIs shall at all times comply with these terms and conditions. Thought Machine may immediately suspend or terminate Partner’s use and/or access to the TM Sandbox APIs and/or the TM Sandbox Environment at any time without liability or obligation to Partner. Partner must only access the TM Sandbox APIs in accordance with its Partner Submission (subject to any terms of Acceptance) and any access and use must be in accordance with the Documentation or other directions of Thought Machine. Thought Machine may add, remove, change, modify or impose restrictions on, the functionalities of the TM Sandbox APIs. Furthermore, Thought Machine may change these Terms and Conditions, at any time and for any reason. Partner will be notified of changes via the email address have provided to Thought Machine as part of the Partner Submission.

2.4. Thought Machine may enforce limits on Partner’s use of the TM Sandbox APIs at any time without prior notice, and this may include discontinuation of the service. TM may make modifications, change and/or retire TM Sandbox APIs without notice (“Modifications”). Thought Machine will have no obligation liability to Partner for any such Modifications. Partner acknowledges and agrees that its use and/or access to the TM Sandbox APIs and/or TM Sandbox Environment is at Partner’s sole cost and expense.

2.5. Partner acknowledges and agrees that its use and access to the TM Sandbox APIs and TM Sandbox Environment is non-exclusive and that Thought Machine and other partners may develop products and/or services that may be similar to and/or competitive with Partner’s products and/or services. Nothing in these Terms and Conditions will restrict or prevent Thought Machine from creating and fully exploiting its products and/or services without any obligation to Partner.

2.6. Thought Machine makes no guarantee with respect to the availability or uptime of the TM Sandbox APIs or TM Sandbox Environment. Thought Machine has no obligation to provide support, maintenance, updates, upgrades, modifications or new releases of any TM Sandbox APIs, software or materials. If Thought Machine chooses, in its sole discretion, to provide any such support, then these Terms and Conditions will govern such support. Furthermore, Thought Machine has no liability, obligation or duty to Partner in respect of any Partner Middleware that Partner may develop and/or any TM APIs that Partner may use or consume (whether in production or non-production), and Thought Machine shall not provide any support or maintenance for, or in relation to, such Partner Middleware and/or such TM APIs.

2.7. Partner acknowledges and agrees that: (i) it is responsible for its use of the TM Sandbox APIs and TM Sandbox Environment and Partner’s use and handling of all test data used in that environment; (ii) Thought Machine has no obligation to maintain, protect or preserve Partner’s test data or Partner Middleware and may delete test data from the system without notice to Partner; (iii) personal data must not be included in test data. (iv) the Partner Middleware and/or any Posted Content shall not be deemed confidential information and Thought Machine owes no obligations of confidentiality to such Partner Middleware and/or Posted Content; (v) any Posted Content that it submits or uploads to the TM Sandbox Environment will be treated as non-confidential and may be published openly by Thought Machine and Partner acknowledges and agrees that Thought Machine and all other users do not owe Partner any obligation in respect of it and shall not be in any way liable to Partner in respect of such Posted Content.

2.8. Pursuant to its use of the TM Sandbox APIs in accordance with these Terms and Conditions, Partner may submit Partner Middleware to Thought Machine for validation pursuant to Thought Machine’s Integration Validation Process . Such validation shall be at Thought Machine’s sole discretion. If Thought Machine confirms such validation in writing then Partner agrees to promptly complete the Integration Guide (as shall be made available by Thought Machine). Following this Thought Machine may include such Partner Middleware in Thought Machine’s integration library, provided that Partner agrees to (a) enter into a separate letter of consent regarding the licensing of Partner’s name and logo on Thought Machine website and the use of Partner content of the respective webpage and (b) promptly and without undue delay, update and maintain the Partner Middleware for (i) each latest version of the TM API Sandbox, of which Thought Machine shall notify Partner, and (ii) each major release of Partner’s respective product to which the Partner Middleware relates.

3. Prohibited Use

3.1. The following prohibitions apply to the use of the TM Sandbox APIs, and Partner hereby agrees that it, and procures that its internal users, shall not use the TM Sandbox APIs and/or the TM Sandbox Environment to:

a. breach any applicable law, rules or regulations, nor contravene any third party rights (including third party IP);

b. compete with Thought Machine and/or for the benefit of Thought Machine’s competitors;

c. transmit any Malicious Code;

d. damage, disrupt, interfere with, amend, alter or adversely impact the TM Sandbox APIs, or Thought Machine (and its third party’s) servers, environments, infrastructure, systems, networks providing the TM Sandbox APIs or any Thought Machine data or confidential information;

e. reverse engineer, modify, decrypt, extract, disassemble or decompile any source code from the TM Sandbox API’s,

f. use the TM Sandbox APIs in any way that (i) could damage the reputation or goodwill of Thought Machine and/or (ii) contains offensive, threatening or otherwise objectionable content or information (including but not limited to “spam” messages);

g. use or aggregate any Posted Content of other users of the TM Sandbox Environment;

h. modify or alter any API Content belonging to a third party;

4. Security

4.1. Partner shall immediately notify Thought Machine of any Security Incident. Partner agrees (at Partner’s cost) to provide all assistance reasonably requested by Thought Machine to respond to and protect against or prevent the occurrence of a Security Incident.

5. Export Controls

5.1. In connection with your use of the TM Sandbox APIs, Partner is solely responsible for complying with all applicable export, re-export, and import control laws and regulations of all applicable jurisdictions, including, but not limited to, those of the U.S. Department of Commerce, Export Administration Regulations, 15 CFR Parts 730-774, the International Traffic in Arms Regulations, country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.

6. Reporting

6.1. Partner shall promptly and in good faith respond to any Thought Machine requests for information regarding Partner’s use of the TM Sandbox APIs (including but not limited to written progress reports, which Thought Machine may request no more than once per calendar month).

6.2. Thought Machine may use Partner information and data that is collected in relation to Partner’s use of the TM Sandbox APIs for the purposes of Thought Machine’s business.

6.3. If Partner elects to provide any feedback or suggested improvements to the TM Sandbox APIs, TM Sandbox Environment, or to any other Thought Machine software and/or service then Partner agrees that Thought Machine shall be entitled to use such feedback or suggested improvements without restriction.

7. Ownership and content

7.1. Thought Machine shall not acquire ownership in any Partner Middleware and by using the Sandbox APIs, you do not acquire ownership of any rights in the TM Sandbox APIs or the content that is accessed through the Sandbox APIs (“API Content”).

7.2. Partner grant to Thought Machine a paid-up, royalty-free, non-exclusive, worldwide, irrevocable, license to use, perform, and display your Partner Middleware and its content for our internal testing purposes (including security testing) and any other purpose for which we have your prior written consent.

7.3. API Content may be subject to intellectual property rights, and, if so, Partner may not use it unless Partner is licensed to do so by the owner of that content or are otherwise permitted by law. Partner’s access to the API Content may be restricted, limited, or filtered in accordance with applicable law, regulation, and policy.

7.4. Subject to clause 2.7, any API Content from third parties is the sole responsibility of the person that makes it available.

7.5. TM Sandbox APIs may allow the submission of content. Thought Machine does not acquire any ownership of any intellectual property rights in the Posted Content that Partner submits to the TM Sandbox APIs through your Partner Middleware, except as expressly provided herein. In order to enable Thought Machine to provide and improve the TM Sandbox APIs, Partner hereby grants Thought Machine a perpetual, irrevocable, worldwide, sub-licensable, royalty-free, and non-exclusive license to use, host, store, modify and communicate content submitted, posted, or displayed to or from the TM Sandbox APIs through your Partner Middleware.

7.6. Partner agrees to prior to submitting any content using the TM Sandbox APIs, Partner shall take all reasonable steps and precautions to ensure that Partner has the necessary rights (including the necessary rights from its users) to grant the licence at 7.5 above to Thought Machine.

7.7. Except as expressly permitted herein, the Partner may not use any of Thought Machine's intellectual property without Thought Machine's prior written consent.

8. Warranties

8.1. No implied conditions, warranties, terms, representations, statements, undertaking and obligations implied by statute, common law, custom, trade usage or otherwise (including implied terms or undertakings of satisfactory quality or fitness for any purpose), will apply to anything supplied or provided by either party under these Terms and Conditions. Thought Machine provides the TM Sandbox APIs on an "as is" basis and does not warrant that:

a. the TM Sandbox APIs will meet Partner’s specific requirements;

b. Partner’s access to or use of the TM Sandbox APIs will be uninterrupted or error-free; or

c. any errors in the TM Sandbox APIs will be corrected.

9. Term and Termination

9.1 This agreement shall commence on the Start Date and shall, unless sooner terminated, continue until the End Date.

9.2 Partner may terminate these Terms and Conditions with prior written notice to Thought Machine and upon termination Partner shall immediately cease all use of the TM Sandbox APIs and TM Sandbox Environment, and delete any stored or cached content.

9.3 Upon such termination of these Terms and Conditions, those terms that by their nature are intended to continue indefinitely will continue to apply.

10. Exclusions and limitations

10.1. Nothing in this agreement limits or excludes either party's liability:

a. arising under any indemnity;

b. for death or personal injury caused by its negligence;

c. for fraudulent misrepresentation or for any other fraudulent act or omission; or

d. for any other liability which may not lawfully be excluded or limited.

10.2 Subject to clause 10.1, Thought Machine shall not be liable to Partner or any third party (whether in relation to breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence), breach of statutory duty or otherwise) for any:

a. loss of profits, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data (regardless of whether any of these types of loss or damage are direct, indirect or consequential); or

b. any indirect or consequential loss or damage whatsoever,

even if that party was aware of the possibility that such loss or damage might be incurred by the other.

10.3. To the maximum extent permitted by law, Thought Machine’s total liability for loss or damage suffered or incurred by Partner as a result of any act or omission by Thought Machine under or in connection with these Terms and Conditions or Partner’s use of the TM Sandbox APIs (whether in contract, tort (including negligence) or otherwise) is limited in the aggregate for all claims to the amount of £5,000.

10.4 The parties agree that the limitations on and exclusions of liability listed in this clause 10 were freely negotiated and are an integral part of the bargain in that the right to use the TM Sandbox APIs (pursuant to clause 2), if any, would not have been available for the same price and under the same terms and conditions had such limitations on and exclusions of liability not been included in this agreement.

11. Indemnity

11.1 Unless prohibited by applicable law, Partner shall defend, hold harmless and indemnify Thought Machine and each Thought Machine group member against all liabilities, damages, losses, costs, fees (including all legal fees and expenses), suffered or incurred by Thought Machine relating to any allegation or third-party legal proceeding to the extent arising from:

a. Partner’s misuse of the TM Sandbox APIs;

b. Partner’s breach of these Terms; or

c. any content or data (including but not limited to Posted Content) routed into or used with the TM Sandbox APIs by Partner (or Partner’s users);

except to the extent that Thought Machine’s loss is due to Thought Machine’s unlawful or negligent acts. Partner agree to pay to Thought Machine the amount of the indemnity promptly on demand.

12. Confidentiality

12.1. API Content, and other information we may make (or have previously made) available to you in connection with these Terms and Conditions, may contain our confidential information. Our confidential information includes any information that is confidential or proprietary to Thought Machine (or a third party that has disclosed it to Thought Machine) and any information that we disclose to you in connection with these Terms and Conditions or in the Documentation that we designate as constituting our confidential information (which may include the specifications for certain TM Sandbox APIs), but excludes:

a. information that is or becomes part of the public domain otherwise than as a consequence of a breach by Partner of these Terms and Conditions;

b. information that is independently developed by Partner; or

c. information that is obtained by Partner from a source other than Thought Machine which source is legally permitted to disclose it to Partner.

12.2. Partner shall must protect all Thought Machine confidential information, use it only for the purposes contemplated by these Terms and Conditions, and not disclose it to any third party, save where legally compelled, without Thought Machine’s express prior written permission.

13. Publicity

13.1. Neither party shall issue any press release or announcement regarding any matter connected with this agreement unless and until the wording and intended distribution of such press release or announcement have been agreed, by notice in writing, by the other party.

14. Compliance with law

14.1. Each party shall at its own expense comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time.

15. General

15.1. Save as expressly permitted under the terms of this agreement, neither party can assign, sub-license, sub-contract or delegate any rights or obligations under this agreement, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Each party will be responsible for any acts and omissions of its assignees, sub-licensees, sub-contractors and delegatees as if they were that party's acts or omissions.

15.2. All notices and consents relating to this agreement shall be sent to the address of the relevant party set out in the Front Sheet or otherwise notified by the relevant party in accordance with this agreement. The notices shall be sent by hand, by first class recorded delivery or registered post or other form of certified or registered mail (and sent by air mail if posted to or from a place outside the United Kingdom), and shall be treated as having been delivered:

a. if sent by hand, when delivered;

b. if sent by certified or registered mail, two days after the date of posting; and

c. if sent by air mail, seven days after the date of posting.

15.3. Either party may by written notice to the other specify an updated address and/or contact information for receipt of notices and consents relating to this agreement. The updates shall take effect two days after the day on which the written notice is deemed to be delivered in accordance with clause 14.2.

15.4. Unless the parties expressly agree otherwise in writing, if a party:

a. fails to exercise or delays exercising or only exercises partially any right or remedy provided under this agreement or by law; or

b. agrees not to exercise or to delay exercising or only to exercise partially any right or remedy provided under this agreement or by law,

then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.

15.5. If any provision of this agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this agreement or this agreement as a whole. If any provision of this agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.

15.6. All variations to this agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.

15.7. Nothing in this agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent or employee of the other or give one party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party.

15.8. A person who is not a party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

15.9. This agreement constitutes the entire agreement between the parties in relation to its subject matter. It replaces and extinguishes all prior agreements, draft agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and undertakings of any nature made by or on behalf of the parties, whether oral or written, in relation to that subject matter. Each party acknowledges that in entering into this agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of this agreement at any time before its signature (together “Pre-Contractual Statements”), other than those which are set out in this agreement. Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements. Nothing in this clause shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.

15.10. This agreement and any disputes to claims arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) is governed by English law. Subject to clause 12.10, both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute or claim arising out of or in connection with this agreement or its subject matter (including any non-contractual disputes or claims) but either party is also entitled (without following the Dispute procedure in clause 12.10) to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.

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