Product-Specific Terms

These Product-Specific Terms constitute part of Customer’s Agreement to access and use the Platform.  Pencil may update Product-Specific Terms (in whole or in part) by posting revised or replacement versions on webpage(s) on the trypencil.com domain (or any successor thereto). 

By using the Platform after any changes of these Product-Specific Terms, Customer agrees to be bound by such updated Product-Specific Terms; provided that any changes shall not adversely affect Customer’s right of access to the Platform or result in a material reduction of the functionalities of the Platform.  For Customers with Agreements incorporating the Pencil Pro Terms and Conditions here, these Product-Specific Terms constitute Appendix C (Additional Terms).

Unless otherwise defined in these Product-Specific Terms, all capitalised terms in these Product-Specific Terms shall have the meaning given to them in the Agreement. To the extent of any conflict or inconsistency between these Product-Specific Terms and the rest of this Agreement, the Product-Specific Terms shall govern and prevail in respect of the specific functionalities or matters set out below.

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1. Third-Party AI Models

1.1. Integration. Certain elements of the Platform enable Customer and its Authorised Users to access and use Third-Party AI Models.  Customer acknowledges and agrees that (i) Customer is responsible for enabling or disabling specific Third-Party AI Models through its configuration of the Platform, (ii) Pencil does not operate or control such Third-Party AI Models, and (iii) Pencil does not guarantee and is not liable for the performance, availability or functionality of any Third-Party AI Model. 

1.2. Enablement. By enabling any Third-Party AI Model in the Platform, Customer is instructing Pencil to share any relevant Customer Content with the applicable provider of such Third-Party AI Model.  Such providers of Third-Party AI Models may process Customer Content solely in connection with the Platform and may retain Customer Content with respect to such processing.  Pencil shall ensure that any providers of any relevant Third-Party AI Model to whom Customer Content is provided are subject to restrictions that are as least as protective as those set out in Section 2.2 (No Training) and Section 13 (Confidentiality) of the Enterprise Terms and Conditions with respect to Customer Content. 

1.3. Marketplace Models. Pencil may make certain artificial intelligence models available in the Platform that are designated as “Marketplace Models.”  Notwithstanding anything to the contrary in the Agreement, such Marketplace Models are provided “as-is” and Pencil disclaims any and all express or implied conditions, warranties, representations, indemnities, undertakings or other terms of any nature relating to any Marketplace Models and, to the maximum extent permitted by law, is not responsible or liable for or in connection with any Marketplace Models or Customer’s use or reliance on them, including with respect to any Outputs generated by Marketplace Models.  For the avoidance of doubt, Pencil’s obligations under the Output Indemnity shall not apply, in whole or in part, to any Outputs generated in connection with any Marketplace Models.  

1.4. Third-Party Terms. Customer acknowledges and agrees that the use of Third-Party AI Models is subject to the third-party terms and conditions of any Third-Party AI Model (as applicable) and Customer shall comply with any such third-party terms and conditions, including but not limited to the Third-Party Terms here.

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2. Bring-Your-Own-Model

2.1. Bring Your Own Model. If the Order Form indicates that Customer is authorised to integrate certain artificial intelligence models or systems owned or licensed by Customer (each, a “BYO Model”) with the Platform for use within the Platform by its Authorised Users, this Section 2.1 shall apply. Customer shall (i) ensure that any BYO Models are made available to Pencil as necessary to enable their availability and operation as part of the Platform and (ii) promptly provide Pencil with all information (including any developer documentation, API keys and/or any other credentials) and cooperation reasonably required or requested by Pencil in order to integrate the BYO Model and make it available within Platform for use by Customer and its Authorised Users. Customer shall pay Pencil any applicable Fees to integrate and use such BYO Models through the Platform as set forth in the applicable Order Form, including through use of Credits and Credit Actions. Customer acknowledges and agrees that, as between the Parties, Customer is solely responsible and liable for each BYO Model and all outputs generated by a BYO Model (the “BYO Model Outputs”) and that Pencil expressly disclaims any and all responsibility and liability for the BYO Model Outputs and the BYO Model (including with respect to any unavailability of any BYO Model due to act or omission of, or circumstance affecting, any third-party provider of a BYO Model). Without limiting the foregoing, Pencil’s obligations under Section 9.1 and representations and warranties under Section 6.1 shall not apply, in whole or in part, to any BYO Model nor BYO Model Outputs. Customer represents and warrants on an ongoing basis that Customer has obtained all rights, consents and authorisations necessary for the integration of the BYO Model by Pencil and the ongoing use of the BYO Model within the Platform as described herein. In the event that a BYO Model does not function with respect to the Platform, Pencil may utilize Third-Party AI Models or Marketplace Models enabled by Customer as set forth in Section 1 of these Product-Specific Terms.

2.2. BYO Model Indemnity. Customer shall indemnify Pencil from and against all Losses incurred in connection with any Claim brought by a third party against Pencil or any Pencil Affiliates arising out of or related to (i) BYO Models or (ii) BYO Model Outputs.

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3. Connected Applications

3.1. Enablement. Certain elements of the Platform may permit or enable Customer and/or its Authorised Users to link or otherwise connect or integrate systems or applications owned or controlled by Customer (“Connected Applications”).  By connecting any Connected Application to the Platform, Customer (a) represents and warrants that it is entitled to link or otherwise connect the Connected Application to the Platform; and (b) instructs Pencil to access and/or share any Customer Content with the relevant providers of such Connected Applications. Customer acknowledges and agrees that Pencil (a) does not control and is not responsible for any Connected Application and (b) may access Content from such Connected Applications at the instruction of Customer and its Authorised Users and that such Content shall be deemed User Content under the Agreement.  

3.2. Third-Party Terms. Customer acknowledges and agrees that the use of Connected Applications is subject to the third-party terms and conditions of any Connected Application (as applicable) and Customer shall comply with any such third-party terms and conditions, including but not limited to as set forth in the Third-Party Terms here.

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4. AI Agents

4.1. Definitions.  The following definitions apply to this Section:

4.1.1. “AI Agent” means an artificial intelligence workflow designed to execute tasks, actions or other functions (“AI Actions”) with respect to the Platform, Third-Party AI Models and/or Connected Applications, as reflected in the instructions and prompts used to create such workflows. AI Actions do not constitute “Outputs” for the purposes of the Agreement.

4.1.2. “Custom AI Agent” means an AI Agent built by Customer using instructions and prompts provided by Customer. Such instructions and prompts, whether used to inform, configure or direct AI Actions and/or generate Outputs, shall be considered User Content under the Agreement.

4.1.3. “Pencil AI Agent” means an AI Agent pre-built by Pencil or a Pencil Affiliate for use by customers of the Platform.

4.2. Responsibility. Customer is solely responsible for any and all AI Actions performed by AI Agents it deploys, and the AI Actions of AI Agents deployed by Customer shall be for all relevant purposes treated as if they were performed by Customer. In particular, Customer is solely responsible for: (a) authorisation of such AI Agents’ access to and taking of AI Actions with respect to Customer Content; (b) integrations with any Connected Applications exposed to such AI Agents (including that it has sufficient authority to allow AI Agents to execute AI Actions with respect to those Connected Applications and any relevant Connected Content in accordance with any relevant third-party terms); (c) supervision and monitoring of such AI Agents (including appropriate human oversight, intervention, review and approval of AI Actions) consistent with applicable laws and good industry practices; (d) the nature and extent of its deployment and configuration of AI Agents (including the permitted parameters of any AI Actions it configures an AI Agent to execute, the selection of Third-Party AI Models available to power such AI Agent and/or from which it can create Outputs, the other AI Agents with which such AI Agent can interact, and the Connected Applications and Connected Content exposed to such AI Agent); (e) determining whether the use and deployment of an AI Agent is appropriate for a given use case and (f) any Custom AI Agents. 

4.3. Ownership. As between Pencil and Customer, Customer retains ownership of User Content (including instructions and prompts) used to build Custom AI Agents, and Pencil retains all right, title, and interest in and to Pencil Technology, including Pencil AI Agents.

4.4. Third-Party Data Sources. Certain AI Agent functionalities available through the Platform may enable Customer and its Authorised Users to generate results (“Third-Party Results”) based on or derived from third-party data, content or services available through third-party applications or websites that are not owned or controlled by Pencil and that are made available through the Platform for selection by Customer and its Authorised Users (“Third-Party Data Sources”). By enabling a Third-Party Data Source, Customer is instructing Pencil to share Customer Content with the provider of such Third-Party Data Source. Pencil does not control, review or verify any Third-Party Data Sources or Third-Party Results and disclaims any and all express or implied conditions, warranties, representations, indemnities, undertakings or other terms of any nature relating to Third-Party Data Sources or Third-Party Results and is not responsible or liable for or in connection with any Third-Party Data Sources or Third-Party Results or Customer’s use or reliance on them (including with respect to any intellectual property claims arising from or relating to such Third-Party Data Sources or Third-Party Results). Customer is solely responsible for determining whether to access, use or rely on any Third-Party Data Sources or Third-Party Results and for evaluating their fitness for any particular purpose. Pencil may add, modify or discontinue the availability of any Third-Party Data Sources at any time. For the avoidance of doubt, Third-Party Results do not constitute Outputs for the purposes of the Agreement, but may constitute User Content if used by Customer or its Authorised Users.

4.5. Third-Party Terms. Customer acknowledges and agrees that the use of Third-Party Data Source is subject to the third-party terms and conditions of any Third-Party Data Source (as applicable) and Customer shall comply with any such third-party terms and conditions, including but not limited to as set forth in the Third-Party Terms here.

5. Share of Model Platform

5.1. Definitions.  The following definitions apply to this Section 5:

5.1.1. “Share of Model Analyses” means any analyses that are generated through the ordinary use of the features and functionalities of the Share of Model Platform based on User Content and presented within the Share of Model Platform.

5.1.2. “Share of Model Platform” means the cloud-based software-as-a-service ‘Share of Model™’ Platform as described in the Documentation that Pencil may provide access to under this Agreement.

5.1.3. “Share of Model Reports” means any reports compiled by Pencil or its Affiliates as part of any Services based upon various collated Share of Model Analyses, which are prepared and made available to Customer. 

5.2. Share of Model Platform Provider. Customer acknowledges and agrees that the Share of Model Platform is owned, hosted and operated by Jellyfish Group Limited, a Pencil Affiliate, and made available by Pencil under the Agreement.

5.3. Rights and Obligations. For purposes of the Agreement, (i) the Share of Model Platform shall be considered the “Platform” as defined in Enterprise Terms and Conditions and (ii) Share of Model Analyses and Share of Model Reports shall be considered “Outputs” as defined in the Enterprise Terms and Conditions with all accompanying rights and obligations except as follows:

5.3.1. No Service Level Agreement shall apply to the Share of Model Platform (including as set forth in Section 2.3 of the Enterprise Terms and Conditions).  Pencil and its Affiliates shall use commercially reasonable efforts to maintain the operation and availability of the Share of Model Platform.

5.3.2. No Data Processing Addendum shall apply to the Share of Model Platform (including as set forth in Section 8 of the Enterprise Terms and Conditions).  Customer represents and warrants that it will not submit any personal data (as defined in applicable data protection laws) as Customer Content to the Share of Model Platform and Customer shall not otherwise cause Pencil or its Affiliates to process any personal data as its processor (as defined in applicable data protection laws) with respect to the Share of Model Platform (including as part of any Services). 

5.3.3. Pencil (i) does not provide any indemnification to Customer with respect to the Share of Model Platform, Share of Model Analyses or Share of Model Reports and (ii) gives no express or implied warranty, representation or undertakings with respect to any infringement of third-party rights with respect to the Share of Model Platform, Share of Model Analyses or Share of Model Reports.  For the avoidance of doubt, Section 9.1 (Pencil Indemnities) of the Enterprise Terms and Conditions as well as the associated liability provisions set forth in Section 10.1(c) and Section 10.3(b) of the Enterprise Terms and Conditions shall not apply to the Share of Model Platform, Share of Model Analyses or Share of Model Reports.  Additionally, Pencil shall not be liable to Customer for any use or reliance on any Share of Model Analyses or Share of Model Reports.

5.3.4. In addition to ownership of the Share of Model Platform and associated components of Pencil Technology, Pencil and its Affiliates shall further retain ownership of all right, title and interest, including all Intellectual Property Rights, to (i) the structure, format and presentation (including any copyright or similar rights therein or thereto, and any trademarks, trade dress, branding, logos, get-up, look-and-feel displayed thereon, etc.) of any Share of Model Analyses or Share of Model Reports (“Formatting”) and (ii) any trademarks, trade dress, branding, logos, get-up, look-and-feel or similar (including Formatting and the term ‘Share of Model™’) owned, controlled or used by Pencil or its Affiliates in connection with the Share of Model Platform, Share of Model Analyses or Share of Model Reports (“Brand Materials”).

5.3.5. Pencil hereby grants to Customer a non-exclusive, worldwide, royalty-free, revocable (only upon breach of the Agreement, including Section 5.3.6 below) and fully paid-up licence to use the Formatting and Brand Materials to the limited extent necessary to allow Customer to take the benefit of its rights in the Share of Model Analyses and/or Share of Model Reports, including to make the Share of Model Reports (but not the standalone Share of Model Analyses) stylised with the Formatting publicly available subject always to Section 5.3.6 below.

5.3.6. Wherever Customer or any person on its behalf carries out any activities that involves the public identification of Pencil, its Affiliates, the Share of Model Platform or otherwise uses the Brand Materials (including public display of any Share of Model Reports), Customer shall comply with Pencil’s or its Affiliates’ brand guidelines made available to Customer from time to time, which detail the permitted form and manner in which any Brand Materials may be used. Customer shall not use any Brand Materials in a manner which disparages or is detrimental to Pencil, its Affiliates or their respective goodwill, reputation and image or which would tend to allow any trademarks or similar within the Brand Materials to become generic, lose their distinctiveness and/or become liable to mislead the public. Customer shall not register or apply to register any trademarks, trade names, domain names or any other rights resembling any part of the Brand Materials. Any goodwill derived from the use by Customer of the any Brand Materials shall accrue and inure to Pencil or its Affiliates.

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