Pencil Enterprise Terms and Conditions

These Enterprise Terms and Conditions, together with any Order Forms and the Product Specific Terms here (the “Agreement”), set out the terms and conditions that govern Customer’s rights to access and use the Platform and associated Services.

THE PARTIES AGREE AS FOLLOWS:

1. INTERPRETATION

1.1 The following definitions apply to this Agreement (including the introductory language set out above):

(a) “Affiliate” means any company or entity that directly or indirectly controls, is controlled by, or is under common control with, a Party.  For these purposes, “control” (and inflections thereof) means to hold, directly or indirectly, more than 50% of the respective shares, or other interests, with voting rights or the power to otherwise direct or cause the direction of the general management of a company or other entity (including through economic or contractual interest).

(b) “Authorised Users” means those of Customer’s designated representatives acting on Customer’s behalf and authorised from time to time by Pencil to use the Platform under this Agreement via certain of the Workspace(s) allocated to Customer, and who are provided usernames, passwords and other necessary credentials by Pencil for the purpose of accessing and using those Workspace(s) via the Platform (“Access Credentials”).

(c) “Beta Feature” means any feature or functionality of the Platform, which is made available by Pencil on a ‘beta’, pre-release or evaluation basis.

(d) “Business Day” means any day which is not a Saturday, Sunday or public holiday in London, United Kingdom or the principal place of business of the Customer (as set out in pre-amble to this Agreement set out above).

(e) “Content” means any text, images, audio, video, data or information, or any other materials.

(f) “Customer Content” means any User Content and Outputs.

(g) “Documentation” means any manuals, instructions, user guides published by Pencil that describe the Platform and its use, operation, features and functionality, as updated and amended from time to time.

(h) “Fees” means any fees for Customer’s subscription to the Platform, provision of the Services (if any) and any other fees (where applicable), as set out in or determined pursuant to the Order Form and these Enterprise Terms and Conditions. 

(i) “Generation” means a single generation of an Output using the Platform. 

(j) “Credits” means credits to be applied for certain actions or activities undertaken by or on behalf of Customer in connection with the Platform (each, a “Credit Action”).

(k) “Intellectual Property Rights” means all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), so-called ‘personality rights’ and ‘publicity rights’ (including rights to natural person’s name, image and likeness), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

(l) “Order Form” means an order form signed by the Parties which incorporates these Enterprise Terms and Conditions.

(m) “Outputs” means any visual or audio Content which is generated and returned by the Platform based on the User Content through Customer’s and its Authorised Users’ permitted use of the Platform.

(n) “Platform” means Pencil’s cloud-based software‑as‑a‑service platform as updated from time to time and as described in the Documentation.

(o) “Pencil Technology” means collectively (i) the Platform; (ii) any and all other technology and software owned or used by Pencil as part of, or in connection with, the Platform or the Services, software code (in any form including source code and executable or object code), neural networks, models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code)) and other computer systems or technologies; (iii) any configurations, software, technology or similar (including in response to any feature requests for the Platform) in relation to the Platform that are produced, conceived, created, developed as part of or in connection with the Platform or the Services, (iv) any benchmarking, analytics or technical data relating to the performance or operation of the Platform; (v) the Documentation; and (vi) any and all Intellectual Property Rights in or to each of (i)-(v).

(p) “Services” means those services which Pencil agrees to provide under this Agreement pursuant to the Order Form in connection with the Platform.

(q) “Term” means the initial term as set out in the Order Form (“Initial Term”) or any renewal term(s) (if applicable) as set out in the Order Form (each, a “Renewal Term”).

(r) “Third-Party AI Models” means third-party artificial intelligence models, algorithms, and platforms made available in the Platform for Customer enablement and use.

(s) “User Content” means any Content submitted or otherwise made available for processing by the Platform by or on behalf of Customer in connection with the Agreement, including inputs submitted to generate Outputs, Customer’s brand materials (including any trademarks, logos and other assets) and any Content integrated into or otherwise made available to the Platform at Customer’s and its Authorised Users’ instruction.

(t) “Workspace” means a ‘Workspace’ made available via the Platform that is allocated to Customer as part of its subscription to the Platform.  

1.2 To the extent not defined in this Section 1 or elsewhere in these Enterprise Terms and Conditions, the capitalised terms set out as headings in the Order Form shall have the meaning given to them in that Order Form. 

1.3 Where applicable, to the extent of any inconsistency or conflict between any provision(s) of these Enterprise Terms and Conditions and any provision(s) of the Order Form, the relevant provision(s) of the Order Form shall govern and prevail.

1.4 The following rules of interpretation shall apply in this Agreement: (a) any reference to this Agreement terminating shall, where the context requires, include a reference to this Agreement terminating by expiry of the Term; (b) the words “include” and “including” (or similar) shall be construed as illustrative only and shall not limit the sense of the description, definition, phrase or term(s) that comes before the relevant term; and (c) any reference to the “Parties” means Pencil and Customer and “Party” shall mean one of them.

2. PLATFORM AND SERVICES

2.1 Platform Access. Subject to Customer’s and its Authorised Users’ continued compliance with this Agreement (including payment of all Fees due and payable in accordance with Section 4), Pencil hereby grants Customer a limited, personal, non-exclusive, non-transferable and non-sublicensable right during the Term for Customer’s Authorised Users (up to the limits on the number of such Authorised Users set out in the Order Form) to access the ordinary features and functionalities of the Platform as part of Customer’s internal business operations via the Workspace(s).

2.2 No Training. Pencil will not use, and will not permit any provider of Third Party AI Models to use, any Customer Content to train or improve any artificial intelligence models, algorithms or systems provided that Customer Content may be used to train any custom model associated with any Workspace(s) and which is made accessible via the Platform (such models, each a “Custom Model”). The Custom Models shall not be made available by Pencil for use by any other Pencil customers, and no Custom Model shall be made available to or used by Customer or its Authorised Users other than via the relevant Workspace to which that model is dedicated. 

2.3 Service Level Agreement.  Pencil shall provide the Platform in accordance with the Service Level Agreement here, which shall form part of the Agreement.

2.4 Authorised Users. Customer is solely responsible for the acts and omissions of its Authorised Users and such Authorised Users’ compliance with this Agreement.  Customer shall not enable access to the Platform to any parties except for Authorised Users. Customer shall immediately notify Pencil of any unauthorised use of any Authorised User’s Access Credentials. Customer shall: (a) ensure that: (i) only Authorised Users access the Platform; and (ii) each Authorised User maintains the confidentiality of the Access Credentials; (b) not allow any Access Credentials allocated to an Authorised User to be used by more than one individual Authorised User; (c) immediately notify Pencil if any Authorised User ceases to be employed or otherwise engaged by Customer; and (d) Authorised Users only access Workspace(s) for which they have been allocated Access Credentials.

2.5 Additional Services. In addition to making available the Platform, Pencil and/or a Pencil Affiliate shall also provide the Services to Customer if and as agreed in an Order Form. Pencil and any relevant Pencil Affiliate shall provide any such Services in accordance with reasonable care and skill consistent with good industry standards and practices.  Where Customer has separately contracted with a Pencil Affiliate outside the terms and conditions of this Agreement (e.g., not as part of the Services) for the provision of certain ‘in-house agency’, creative, design or other marketing services by that Pencil Affiliate, and those services include the use of the Platform on behalf of Customer to perform those services, any employees or staff of that Pencil Affiliate shall be Customer’s Authorised Users with respect such use and may use the Platform on behalf of Customer to support performance those services. Unless and as expressly agreed by Pencil’s entry into and execution of such agreement, Pencil shall not be a party to, nor have any obligations under any contract between Customer and a Pencil Affiliate with respect to such services.

3. OWNERSHIP AND LICENSING 

3.1 Pencil Ownership. As between the Parties, Pencil retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to the Pencil Technology. Customer will not acquire any right, title or interest in or to the Pencil Technology other than the limited right to access the Platform set out in Section 2.1, and Pencil reserves all rights therein and thereto not expressly granted in this Agreement. 

3.2 Customer Ownership. As between the Parties, Customer retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to all Customer Content. 

3.3 Licence to Pencil. Customer hereby grants to Pencil a non-exclusive, worldwide, royalty-free and fully paid-up licence during the Term to use the Customer Content solely as necessary to provide, operate and make available the Platform to Customer and/or to provide the Services.

4. FEES

4.1 Payments. Customer shall pay the Fees in advance in accordance with this Section 4 and any relevant terms of the Order Form. 

4.2 Invoicing and Payment. Pencil shall issue Customer with invoices in respect of any Fees that come due and payable and Customer shall pay the amounts shown in all such invoices in full in accordance with such invoices within thirty (30) days of the invoice date, unless otherwise agreed in the Order Form. 

4.3 Fees. All Fees: (a) shall be payable in the currency agreed in the Order Form; (b) are non-cancellable and non-refundable unless and to the extent expressly provided otherwise in this Agreement; and (c) are exclusive of any and all taxes (including value added tax). 

4.4 Credits. 

(a) Customer shall purchase a specific number of Credits to be made available for use by Customer and its Authorised Users in the Workspaces associated with Customer for the Term (the “Credit Limit”). 

(b) Any unused Credits shall expire at the end of the applicable Term and cannot be rolled over or otherwise retained at the end of an applicable Term.

(c) Pencil shall charge Credits for Credit Actions. The number of Credits that will be applied against the Credit Limit for a given Credit Action may vary and is subject to change. Current rates can be found in applicable Documentation made available by Pencil.

(d) Where Customer exceeds the Credit Limit, then each Credit Action in excess of the Credit Limit used by Customer shall be charged the applicable number of Credits for each such Credit Action at the Credit rate for additional Credits set forth in the Order Form (each, an “Excess Credit”). The Fees for any such Excess Credits shall be added to the next invoice to be issued by Pencil.

(e) The Order Form shall set out: (i) the base Fees payable; (ii) the applicable Credit Limit; and (iii) the Fees payable for each Excess Credit.  

4.5 Fee Changes. Pencil reserves the right to increase the Fees following the Initial Term, and each Renewal Term thereafter, provided that Pencil will provide notification of any such increase at least ninety (90) days in advance of the end of the Initial Term or then-current Renewal Term (as applicable).

4.6 Late payments. In addition to any other rights or remedies available to Pencil, if Customer fails to pay any sums by the due date: (a) any such sums will accrue interest equal to the higher of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum rate allowed under applicable law (including, where applicable, the default statutory rate), from the time the indebtedness arose until fully paid, whether before or after judgment; and (b) Pencil may suspend the provision of any access to the Platform and/or any and all other parts of the Services until payment of the sums is made by Customer in full without liability to Customer or prejudice to any other rights or remedies available to Pencil in the circumstances.

5. ACCEPTABLE USE POLICY

Customer shall comply with the Acceptable Use Policy here, which shall form part of the Agreement.

6. PENCIL WARRANTIES AND DISCLAIMERS

6.1 Pencil Warranties. Pencil warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times, the requisite power, capacity and authority to enter into this Agreement, to perform and carry out its obligations under this Agreement. Pencil warrants that, during the Term, the Platform will materially conform to the then-current Documentation when used in accordance with that Documentation and the provisions of this Agreement.

6.2 Pencil Disclaimer. Except as expressly provided in this Agreement, the Platform, Documentation, Services and the Outputs are provided “as is” and to the fullest extent permitted by law, Pencil disclaims all other conditions, warranties, representations, undertakings, or other terms which might have effect between the Parties with respect to the Platform, Documentation, Services, the Outputs and/or Third-Party AI Models or otherwise be implied or incorporated into this Agreement, whether by statute, common law, custom or otherwise, including any implied conditions, warranties, undertakings or other terms relating to satisfactory quality, accuracy, reasonable skill and care, fitness for any particular purpose, non-infringement, ability to achieve a particular result or arising from course of dealing or usage of trade. 

6.3 AI Disclaimer. Without limiting the generality of Section 6.2, Customer further acknowledges and agrees that (a) any Outputs produced without human intervention may not constitute valid, subsisting or enforceable Intellectual Property Rights and/or be capable of registration in certain jurisdictions (e.g., they may not be considered to be ‘original’ or ‘novel’ for the purposes of relevant law pertaining to the validity, subsistence or enforceability of certain Intellectual Property Rights); (b) the same or similar outputs may be generated by other customers or users of the Third-Party AI Models and Customer shall not have any ownership rights over such outputs; (c) Third-Party AI Models may hallucinate or have imperfect prompt adherence; and (d) Pencil shall not be responsible for reviewing or attempting to verify the fitness for a given purpose or accuracy of any Outputs. Customer shall be solely responsible for Customer’s use of the Platform, the Services and any Output. 

7. CUSTOMER WARRANTIES AND DEPENDENCIES

7.1 Customer Warranties. Customer warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times: (a) the requisite power, capacity and authority to enter into this Agreement, to perform and carry out its the obligations under this Agreement; and (b) sufficient rights to grant Pencil the rights and licences granted by Customer under this Agreement, including with respect to the Intellectual Property Rights in or to any User Content.

7.2 Customer Dependencies. Customer shall: (a) implement and maintain effective security policies and procedures to prevent unauthorised disclosure of Access Credentials and unauthorised access to the Platform; (b) secure any systems and devices Customer and its Authorised Users use to access the Platform; (c) ensure that all Authorised Users of the Platform only access the Platform using a supported version of the systems and technologies (e.g., browsers, operating systems etc.) that are listed in the Documentation as supported by Pencil from time to time; (d) ensure that it has an internet connection with adequate bandwidth for Authorised Users to access and use the Platform; (e) ensure that it maintains connectivity to the extent necessary to prevent network performance degradation; and (f) maintain all necessary back-up copies of all Customer Content, and Customer further acknowledges that it, and not Pencil, is solely responsible for doing so.

8. DATA PROTECTION

The Pencil Data Processing Addendum shown from time to time here (the “DPA”), which shall form part of the Agreement and shall apply in accordance with its terms in relation to Pencil’s Processing of Customer Personal Data on Customer’s behalf in performance of this Agreement. If and where the DPA applies in accordance with the foregoing, to the extent of any inconsistency or conflict between any provision(s) of this Agreement and any provision(s) of the DPA, the relevant provision(s) of the DPA shall govern and prevail in preference to any relevant provision(s) of this Agreement insofar as they relate to Pencil’s Processing of Customer Personal Data. Any capitalised terms used in this Section 8, but not defined in this Agreement, shall have the meaning given to them in the DPA.

9. INDEMNITIES

9.1 Pencil Indemnities. Subject to Section 9.2, Pencil shall indemnify Customer from and against all losses, liabilities and damages and costs (including reasonable legal and professional fees and disbursements) (“Losses”) awarded in final judgment or agreed in final settlement of any claim, demand, complaint or proceeding (“Claim”) brought by a third party against Customer that: (a) any Output infringes, misappropriates or violates the Intellectual Property Rights of that third party (this indemnity, the “Output Indemnity”); and (b) Customer’s use of the Platform (excluding any Third-Party AI Models or Outputs) within the scope of the rights granted under this Agreement, infringes, misappropriates or violates the Intellectual Property Rights of that third party (this indemnity, the “Platform Indemnity”). The obligations set forth in this Section 9.1 as they may apply in the circumstances shall constitute Pencil’s entire liability and Customer’s sole remedy (i) for any actual or alleged infringement, misappropriation or violation of any Intellectual Property Rights of a third party arising out of or in connection with this Agreement and (ii) with respect to Outputs.

9.2 General Exclusions. Pencil shall have no liability whatsoever to Customer under the Output Indemnity and/or the Platform Indemnity in respect of any Indemnified Claims arising as a result of: (a) any breach, non-performance or any other default by Customer under this Agreement, or Customer’s actions that contribute to, induce or encourage the relevant infringement, misappropriation or violation; (b) any use of the Platform and/or any Output in combination with other products, hardware, equipment, software, data or other Content not provided to Customer by Pencil under this Agreement; (c) any modification of the Platform and/or any Output by any person other than Pencil; (d) User Content; (e) any continued use of the Platform and/or any Output after Customer knew or ought reasonably to have known that the Platform and/or Output infringed, misappropriated or violated of any third-party right (including Intellectual Property Rights); (f) Customer’s or its Authorised Users’ intentional, negligent or reckless generation of an Output that infringes, misappropriates or violates any third party’s Intellectual Property Rights; and/or (g) any allegation of infringement, misappropriation or violation of a trade mark-related right resulting from Customer’s use of an Output in its trade or commerce.

9.3 Customer Indemnity. Customer shall indemnify Pencil from and against all Losses awarded in final judgment or agreed in final settlement of any Claim brought by a third party against Pencil or Pencil Affiliates arising out of or related to (a) any User Content or (b) any breach of the Acceptable Use Policy.  

9.4 Control of Claims. A Party seeking indemnification under this Section 9 shall: (a) notify the other Party (the “Indemnifying Party”) in full, accurate and complete detail in writing promptly (and in any event within ten (10) Business Days) after it becomes aware of any event or any Claim which may give rise to a claim for indemnification (an “Indemnified Claim”); (b) allow the Indemnifying Party sole authority to control the defence and settlement of any Indemnified Claim; (c) provide the Indemnifying Party with all reasonable cooperation in the defence of such Indemnified Claim; and (d) not settle or compromise any Indemnified Claim or make any admission of liability without the express prior written consent of the Indemnifying Party. In event of any Indemnified Claim, at its option, the Indemnifying Party may elect to: (x) modify or replace all or any relevant materials or technology so that it becomes non-infringing; (y) obtain any required licence(s) to use the applicable third-party Intellectual Property Rights; or (z) terminate this Agreement on written notice; provided that, where Pencil is the so terminating Indemnifying Party, Pencil refund to Customer any pre-paid Fees reduced pro-rata to reflect the remainder of the Initial Term or then-current Renewal Term (as applicable). 

10. LIMITATION OF LIABILITY

10.1 Unlimited Liability. Nothing in this Agreement limits or excludes the liability of either Party: (a) for death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) in respect of Pencil, its liability under the Platform Indemnity; (d) for any other act, omission, or liability which may not be limited or excluded by applicable law; or (e) in respect of Customer, Customer’s liability (i) to pay Pencil any sums due and payable under this Agreement, (ii) for its breach of the Acceptable Use Policy or (iii) under its indemnification obligations.

10.2 Exclusions. Subject only to Section 10.1, neither Party shall be liable to the other Party whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any: special, indirect, punitive or consequential loss or damage or; (whether direct or indirect) any loss of profits, business, business opportunities, revenue, turnover, Content, reputation or goodwill, in each case however arising under or in connection with this Agreement and even if the other Party was aware of the possibility that such loss or damage might be incurred.

10.3 Liability Cap. Subject to Sections 10.1 and 10.2, (a) each Party’s total aggregate liability to the other Party in respect of any and all other Claims (whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise) arising in connection with the performance or contemplated performance of this Agreement shall under no circumstances exceed one hundred per cent (100%) of the Fees paid by Customer under this Agreement in the twelve (12) months immediately preceding the first event (or first event in any series of connected events) giving rise to a Claim  (the “General Cap”) and (b) Pencil’s total aggregate liability to Customer under the Output Indemnity shall under no circumstances exceed three hundred percent (300%) of the General Cap up to a maximum amount of $3,000,000 – provided that, the existence of more than one Indemnified Claim, Claim, or event (or series of connected events) from which liability arises shall not enlarge the limits set out in this Section 10.3.

11. TERM AND TERMINATION

11.1 Commencement and duration. Unless terminated earlier pursuant to the terms of Section 11.2, this Agreement shall: (a) commence on the effective date of this Agreement and continue for the Initial Term; and (b) automatically renew for further successive Renewal Terms at the end of the Initial Term and at the end of each Renewal Term, unless either Party gives written notice to the other Party not later than sixty (60) days before the end of the Initial Term or then-current Renewal Term to terminate this Agreement upon the expiry of the Initial Term or then-current Renewal Term. 

11.2 Termination. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party: (a) commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so; or (b) becomes insolvent or unable to pay its debts, proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets, suffers the presentation of any petition, the making of any order shall or the passing of any resolution for its winding up (except for the purposes of a bona fide solvent amalgamation or reconstruction), bankruptcy or dissolution, otherwise proposes or enters into any composition or arrangement with its creditors or any class of them, ceases to carry on business or claims the benefit of any statutory moratorium, or undergoes any similar or equivalent process in any jurisdiction. Both a failure by Customer to pay any Fees when due and/or any breach by Customer of the Acceptable Use Policy shall each constitute a ‘material breach’ for the purposes of Section 11.2(a).

12. CONSEQUENCES OF TERMINATION

12.1 Consequences. On termination of this Agreement: (a) notwithstanding Section 4, Customer shall promptly (and in any event within ten (10) Business Days of the date of termination) pay Pencil any outstanding balances owing to Pencil under this Agreement; (b) any and all licences, permissions and authorisations granted to Customer and/or its Authorised Users by Pencil under this Agreement will terminate automatically; and (c) subject to Section 12.2 and the Product-Specific Terms, each Party will promptly return all Confidential Information (as defined below) received from the other Party, together with all copies, or certify (on request from the other Party) in writing that all such Confidential Information and copies thereof have been destroyed. 

12.2 Limitations. Any obligation to return, destroy or permanently erase Confidential Information outlined in Section 12.1 shall not apply in respect of any Confidential Information that either Party may retain as necessary to comply with any legal, regulatory, judicial, audit or internal compliance requirements or that is retained on electronic back‑up media made in the ordinary course of business and from which it cannot readily be isolated from other information and deleted, provided that, in each case, the provisions of Section 13 shall continue to apply to such retention of any such Confidential Information at all relevant times.

12.3 Survival and accrued rights. Any provision of this Agreement that either expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

13. CONFIDENTIAL INFORMATION

In this Agreement, “Confidential Information” means any information that is clearly labelled or identified as confidential, or reasonably ought to be treated as being confidential. Confidential Information excludes any information which: (a) is or becomes publicly known other than through a breach of this Agreement; (b) was in the receiving Party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the receiving Party and that independent development can be shown by contemporary written evidence without reference to or reliance upon the other’s Confidential Information. Neither Party shall use the other’s Confidential Information for any purpose other than the performance and enjoyment of the obligations and rights set out in this Agreement. Each Party shall keep the other’s Confidential Information confidential and, except as otherwise provided in this Agreement, shall limit access to the other’s Confidential Information to its and its Affiliates’ employees, agents, representatives or subcontractors who have a genuine ‘need to know’, who are subject to confidentiality obligations no less restrictive than those set forth in this Section 13, and who have been informed of the confidential nature of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose the other’s Confidential Information to the limited extent that such disclosure is required by law or by the order of a court or similar regulatory or administrative body; provided that the receiving Party shall promptly notify the other Party in writing of such required disclosure and shall cooperate with the other Party if the other Party seeks a protective order in relation to any such disclosure and/or any limitations on the further use and disclosure of such Confidential Information. For the avoidance of doubt, any Customer Content constitutes Customer’s Confidential Information, and Pencil Technology constitutes Pencil’s Confidential Information. 

14. BETA TESTING

From time to time, Customer may have the option to participate in a programme where Customer and its Authorised Users are permitted at no additional cost to access certain Beta Features. Customer may only use the Beta Features to internally evaluate and test such Beta Features and for no other purpose whatsoever. The Beta Features are not generally available and are provided by Pencil “as is”, without any conditions, warranties, representations, undertakings, or other terms either express or implied whatsoever (including as to non-infringement, merchantability, satisfactory quality, use of reasonable skill and care or fitness for any particular purpose). Furthermore, Pencil does not provide any warranty, indemnities or service level or availability commitments whatsoever in relation to the Beta Features (e.g., Sections 2.3, 6.1 (insofar as the limited warranty therein would otherwise be given by Pencil) and 9.1 do not apply in respect of Beta Features). As Pencil sees fit in its sole discretion, it may from time to time impose, and Customer shall comply with, certain additional restrictions or limitations on Customer’s and its Authorised Users’ use of the Beta Features. Pencil may terminate Customer’s access to any Beta Feature(s) at any time with or without notice, at which point Customer and its Authorised Users must stop using the Beta Feature. Customer shall not disclose to any third party or publish (including via the internet or social media) details of any Beta Feature (including details of its any evaluation or testing (including any Outputs, results, screenshots, questions, or workflows) of the Beta Feature) without Pencil’s prior written consent.  

15. GENERAL

15.1 Marketing. Customer acknowledges and agrees that Pencil may, and Customer hereby grants Pencil a right and licence to, include Customer’s name and a description of the technology and services provided to Customer under this Agreement in case study marketing content, lists of or references to any of Pencil’s clients on its website and/or in proposals, and in other marketing materials.

15.2 Feedback. If Customer provides feedback, suggestions or recommendations to Pencil regarding the Pencil Technology and/or Services (“Feedback”), Customer hereby grants Pencil an unrestricted, unconditioned, irrevocable and perpetual right and licence to freely use and exploit such Feedback without any requirement of compensation. 

15.3 Platform Operation Data. Pencil may collect and compile certain Platform Operation Data, which shall be owned by Pencil (inclusive of all intellectual property rights therein or thereto) provided that in all cases the Platform Operation Data shall not identify Customer. “Platform Operation Data” means general usage, data and statistics relating to the use and operation of the Platform compiled into an aggregated or de-identified form.

15.4 Force Majeure. No Party will be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure results from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for three (3) months, the unaffected Party may terminate this Agreement by giving thirty (30) days’ written notice to the other Party.

15.5 Subcontracting. Pencil may engage any third party to perform its obligations under this Agreement, provided that Pencil shall remain fully liable to Customer for performance of such obligations (subject to the exclusions and limitations outlined herein).

15.6 Assignment. Neither Party may assign or transfer all or any of its rights or obligations under this Agreement, without the prior written consent of the other Party; provided that, a Party may, without such prior written consent but with not less than five (5) Business Days’ prior notice to the other Party, assign or transfer this Agreement in connection with undergoing a change of control (with “control” for these purposes meaning the power of a person to secure that the affairs of such Party are conducted in accordance with the wishes of that person either: (a) by means of the holding of shares, or the possession of voting power, in or in relation to such Party or any other entity; or (b) as a result of any powers conferred by the articles of association or any other document regulating such Party or any other entity). 

15.7 Notices. Any notice required to be given under this Agreement will be sent by email to the Notice Address set out in the Order Form. Notices will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside business hours, at 9am on the first Business Day following its dispatch). A Party may change its details given on the Order Form by giving written notice to the other Party.

15.8 Variation. Unless and only to the extent expressly permitted in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).

15.9 Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

15.10 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by this Agreement and supersedes all previous agreements (if any and whether in writing or not) between the Parties in relation to such matters. The Parties acknowledge and agree that, except as otherwise expressly provided for in this Agreement, they are not entering into this Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (whether a Party to this Agreement or not) in relation to the subject matter of this Agreement, provided that nothing in this Agreement shall exclude any Party from liability for fraud or fraudulent misrepresentation.

15.11 No Partnership or Agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.

15.12 Rights of Third Parties. A person who is not a Party to this Agreement shall not be entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

15.13 Governing law and jurisdiction. The Agreement and all matters arising from it (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) shall be governed by, and construed in accordance with, the laws of England. In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement (including any dispute relating to the existence, validity or termination of this Agreement or any contractual or non-contractual obligation) (for the purposes of this Section 15.13, “Proceedings”) each of the Parties irrevocably submits to the exclusive jurisdiction of the courts of England, and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that the Proceedings have been brought in an inappropriate forum provided that a judgment or order of any court may be enforced in any court of competent jurisdiction.