Terms of Service

These Terms of Service govern the Agreement between Cord Technologies Limited (“Encord”) and registered in England with company number 12330483 and having its registered office at 86-90 Paul Street, 3rd Floor, London, EC2A 4NE, United Kingdom (“Encord,” “we,” “our” or “us”), and the entity identified as Client in the Order Form (“Client”,“you” or “your”) (each, a “Party” and together, the “Parties”). This Agreement is effective as of the Commencement Date (as defined below) and governs your access and use of our Services as defined below. If you are agreeing to these terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these terms on that organization or entity’s behalf and bind them to these terms (in which case, the references to “Client”, "you" and "your" in these terms, except for in this sentence, refer to that organization or entity). If you do not agree to these terms, you are not authorized to use the Services (as defined below) and must cease using any Services immediately.

In addition to these terms, we also publish a Privacy Policy that describes how we process, collect, use, and protect your information. Our Privacy Policy is deemed incorporated into this Agreement.

1. 1. Definitions and Interpretation

   1. 1.1The following definitions apply in this Agreement:
      

      Agreement: These Terms of Service, any Order Forms executed by the Parties and in effect from time to time, our Privacy Policy and (as applicable) the Data Processing Addendum.

      Authorized Users: Client’s employees who have a bona fide business need and are authorized by Client in accordance with this Agreement, to use the SaaS Services.

      Commencement Date: the earlier of the Effective Date of the first Order Form executed by the Parties or your accessing or using the Services or creating an account on Encord’s website. 

      Confidential Information: information that is proprietary or confidential and is either labelled or identified as such, or in respect of which it was reasonable to infer that it was confidential. Confidential Information includes each Party’s data, records, forms, tools, services, methodologies, research, technical knowledge, marketing, business and development plans, trade secrets and IPRs and, in the case of Encord, includes the SaaS Services, Encord Software, Encord IPRs, and Documentation and, in the case of Client, includes Client Inputs.

      Contract Year: each successive 1-year period on and from the Effective Date of the applicable Order Form.

      Client Input: all Data and Models uploaded or submitted to or entered into the Services by Client (including its Authorized Users) or by Encord on Client’s behalf during Professional Services, including all annotations and labels applied to the foregoing by the Client through its use of the Services. Client Input excludes all Encord IPRs (including Usage Data).

      Client Personal Data: the personal data contained in Client Input.

      Data: all information, data, datasets, databases, charts, pictures, videos, analyses, graphic representations, labels, annotations and metadata.

      Data Processing Addendum: Encord’s data processing addendum available at http://encord.com/online-dpa which is incorporated into this Agreement by reference.

      Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK and EU including (a) the General Data Protection Regulation ((EU)  2016/679) (“GDPR”), the Data Protection Act 2018, the Privacy and Electronic  Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the  Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all EEA Member State laws amending or supplementing the EU GDPR; (b) the US Health Insurance Portability and Accountability Act 1996 (“HIPAA”), the California Consumer Privacy Act 2018 and California Privacy Rights Act 2020 and all other laws in the US relating to the protection of personally identifiable information; and (d) all other such laws anywhere else in the world.

      Deliverables: the outputs specified as “Deliverables” in the relevant Order Form. 

      Documentation: the description and technical specifications of the SaaS Services, Encord Software and Support available at https://docs.encord.com, as updated by Encord from time to time (excluding release notes).

      Effective Date: in respect of an Order Form, the last date of execution by both Parties or such different date as specified therein.

      Encord IPRs: all rights (including IPRs) in, to and in respect of the (i) Encord Software, (ii) Services, (iii) Documentation, (iv) Encord Trademarks, (v) Usage Data, (vi) Encord Confidential Information and (vii) all feedback provided in respect of the Services.

      Encord SDKs: the software development kits and application program interfaces (APIs) provided by Encord (including task agents), as may be specified in the applicable Order Form.

      Encord Software: all and any part of Encord’s software, including the Encord SDKs, made available to Client via the SaaS Services, as may be specified in the applicable Order Form.

      Encord Trademarks: the trade, business and service marks, logos, taglines, and service marks displayed in the Services, which are owned or licensed by Encord or its licensors. 

      Fees: the fees payable by Client to Encord as specified in the Order Forms from time to time. Fees are exclusive of all applicable taxes and third-party charges, including VAT, sales taxes, export and import taxes, exchange and bank charges, for which Client is additionally liable

      Force Majeure Event: an event beyond a Party’s reasonable control (whether occurring to a Party or its subcontractors, subprocessors and/or service providers), including strikes, other industrial disputes, failure of a utility service, telecommunications network or the internet, act of God, government or other public authority, terrorism, war, riot, civil commotion, pandemic, epidemic, cyber-attack, breakdown of plant or machinery, fire, flood or storm.

      Insolvency Event: if a Party ceases (or threatens to cease) doing business, takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering administration, liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium, being wound up (whether voluntarily or involuntarily), or struck off the register of companies, having a receiver appointed to any of its assets, or entering a similar procedure in any jurisdiction.

      Intellectual Property Rights or IPRs: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered, including all applications and rights to apply for, be granted, renewals or extensions of, and to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist in any part of the world.

      Liabilities: all actions, claims, proceedings, damages, losses, liabilities, charges, costs and expenses. 

      Malicious Code: any computer viruses, software, scripts or similar items designed to disrupt or destroy technology systems.

      Models: artificial intelligence models, prediction sets and/or weights.

      Order Form: an order form that describes the Services purchased by Client. An Order Form is only effective once executed by both Parties.

      Professional Services: the professional services as specified in an Order Form from time to time. 

      Relief Event: (i) any failure by Client to perform an obligation or any other failure or delay which Client knew, or reasonably should have known, would prevent or delay Encord from performing its obligations; (ii) a Force Majeure Event; or (iii) Encord acting in accordance with an express instruction (including the imposition of a constraint) from Client.

      SaaS Services: the provision of the Encord Software to Client “as-a-service” and any Third Party Products made available as part of the SaaS Services, including any updates and upgrades that are generally released/made available by Encord to all of its clients from time to time, as specified in the Order Form(s) in effect from time to time. 

      Sensitive Data: all: (a) information that under Data Protection Laws constitutes a special category of personal data or is personal data relating to criminal offences or proceedings; (b) information relating to a person’s bank details or payment information; or (c) HIPAA Data.

      Services: the SaaS Services, Professional Services and Support.

      Subprocessor List: the list of Encord’s third party processors of Client Personal Data available at https://trust.encord.com/, as updated by Encord from time to time.

      Support: the support for the SaaS Services provided by Encord to Client specified in the applicable Order Form, and as described in the Documentation. 

      Third Party Products: the third party Models, products and other services that are made available through the SaaS Services. 

      Term: has the meaning given to it in Section 12.1.

      Usage Data: information and logs about how Client and Authorized Users use and interact with the Services, including types of content viewed or engaged with, features used and actions taken, time zone, country, dates and times of access, user agent and version and device type.

2. 2. Services, Order Forms and Payment Terms

   1. 2.1The Services purchased by Client shall be specified in the Order Forms executed by the Parties from time to time.
   2. 2.2During the Term, the Parties may execute additional Order Forms for additional Authorized Users and/or Services, which will be governed by the terms of this Agreement.
   3. 2.3Fees. Client will pay the fees for the Services (“Fees”) as described in the Order Form. All Fees are non-refundable except as required by law or expressly set out in this Agreement. Further, if Client provides Encord with a valid payment method, including a credit card or debit card (“Authorized Payment Method”), Client authorizes Encord to charge Client’s Authorized Payment Method for all fees payable during the subscription term. Client further authorize Encod to use a third party to process payments, and consent to the disclosure of Client payment information to such third party.
   4. 2.4Payment Terms. If the payment timing is not specified in Client’s Order Form, Client will pay all Fees within thirty (30) days following Client’s receipt of an invoice. Late payments are subject to a service charge of 8% above the Bank of England base rate at the date the payment fell due from that date until payment is made. Encord may immediately suspend its performance if Client fails to pay the Fees specified in each Order Form
   5. 2.5Taxes. Your Fees are exclusive of all applicable taxes unless otherwise specified in an agreement with Encord, or on an applicable invoice. Tax rates are calculated based on the billing information you provide and the applicable tax rates at the time of your subscription charge.
   6. 2.6Notice. In the event we change the Fees, we will give you at least thirty days’ notice of that change prior to the renewal of Client's then-current subscription. Your use of the Service following such notification constitutes your acceptance of any new or increased Fees.

3. 3. Licensing of Services

   1. 3.1Right to Use the Services and Software. During the term of the applicable Order Form, in consideration for Client’s payment of the Fees, Encord: (a) will use commercially reasonable efforts to provide the Services to Client; (b) subject to the terms of this Agreement and each applicable Order Form, grants Client a non-exclusive, non-transferable, revocable, limited right and licence (without the right to grant sub-licences) to (through the Authorized Users) access and use the SaaS Services and the Documentation and receive the Professional Services; and (c) where specified in the Order Form grants Client a non-exclusive, non-transferable, revocable, limited right and licence (without the right to grant sub-licences) to (through the Authorized Users) use the Encord SDKs for the sole purpose of building integrations to the SaaS Services. Client is solely responsible for ensuring it has, and maintains, all appropriate consents, licences and rights required to connect and/or use the Encord SDKs in connection with any data, platforms, services or systems of any third party.
   2. 3.2Restrictions on the Right to Use the Services. Client may only use the Services: (a) for its internal business purposes; and (b) in accordance with the Documentation and this Agreement, including their restrictions. Client will promptly notify Encord of any breach of this Agreement by Client or an Authorized User and will cooperate with Encord to address the suspected violation. Encord may suspend or terminate any Authorized User’s access to the Services, if Encord reasonably determines that such Authorized User violated this Agreement. For the avoidance of doubt, Client is responsible for the actions and omissions of its Authorized Users.
   3. 3.3Reservation of rights. Client is granted no rights in or to any Encord IPRs except as expressly stated in this Agreement. Encord expressly reserves all its rights in and to the Encord IPRs.
   4. 3.4Changes to the Services. Encord may make changes to features and functionality of the SaaS Services and Support. Encord will notify Client in advance of any changes that may have a material adverse effect on functionality and in such event the Parties shall enter into good faith negotiations to agree upon a reduction of Fees proportionate to the effect of the adverse change on Client.
   5. 3.5Client Responsibilities. Client is solely responsible for all Client Input, and for ensuring that its use of Client Input in connection with the Services is in compliance with all applicable laws and any third party terms that may be applicable to Client Input and Encord is not responsible and has no Liability to Client and/or any third party in connection with any Client Input and/or the use of Client Input, including any third party data, information, databases, models, or other third party IPRs used by Client in connection with the SaaS Services.
   6. 3.6Trials. Encord provides numerous Services options. From time to time, we may provide Clients with access to use our Services free-of-charge or at a reduced rate (“Trial”), this Trial can only be activated by Encord in an Authorized User’s account. By using the Trial Services, you agree to the terms under this Agreement. Encord will make the applicable Services available to you on a trial basis until the earlier of (a) the end of the trial period (if not terminated earlier) or (b) the start date of your paid subscription. Encord reserves the right to suspend, limit, or terminate the Trial for any reason and at any time without notice.
   7. 3.7Freemium License. Encord, may, from time to time and at its sole discretion offer Clients with access to the Services at no charge (“Freemium License”). Encord will explain the nature of the Freemium License and the Services available to you when you are signing up for the Services. Encord reserves the right to suspend, limit, or terminate the Client’s access to the Freemium License for any reason and at any time without notice. 

4. 4. Client’s Obligations

   1. 4.1Client Dependencies. Client shall provide Encord with: (a) all necessary cooperation in relation to this Agreement; and (b) all materials (including Client Input) that Encord may reasonably request in order to perform the Services. 
   2. 4.2Client warranties. Client warrants that any and all Client Input and the use of Client Input by the Parties for the purposes set out in, and as provided by, this Agreement, including in connection with the Services: (a) complies and shall comply with all applicable laws, including the Data Protection Laws; and (b) will not infringe or violate any third party rights, including IPRs or rights under Data Protection Laws, or any third party terms or conditions that may be applicable to Client Input. 
   3. 4.3Client Input Use Rights. Client hereby grants to Encord a non-exclusive, non-transferable, worldwide, royalty-free license to use Client Input to provide the Services, and to perform its rights and obligations under this Agreement. 
   4. 4.4Export. Client may, at any time during the term of an Order Form, using the functionality available through the SaaS Services, download Client Inputs in respect of the SaaS Services. Client acknowledges that Client is solely responsible for back-ups of Client Inputs. 
   5. 4.5Ownership. As between Client and Encord, Client shall own all right, title and interest in and to all of Client Input. Client has sole responsibility for the legality, reliability, integrity, accuracy and quality of Client Input.
   6. 4.6Encord SDKs. At all times where Client uses Encord SDKs, Client shall ensure that it uses the current version of the Encord SDKs or a version that was released in the previous six (6) months.
      

5. 5. Use Restrictions

   1. 5.1In respect of the Services and Encord Confidential Information (including the Encord IPRs) (or any part thereof), Client will not nor permit anyone else to:
      1. 5.1.1make them available to anyone (including extracts, screenshots, snippets, framing or screensharing), or use them for the benefit of any third party or for any purpose other than Client’s internal business purposes;
      2. 5.1.2sell, resell, license, sublicense, distribute, rent, fraudulently use or lease any of them;
      3. 5.1.3use them to store, distribute or transmit: (a) material that is unlawful, illegal or in violation of third-party rights; or (b) Malicious Code;
      4. 5.1.4interfere with or disrupt the integrity or performance of them, third-party data or Third Party Products contained therein;
      5. 5.1.5attempt to gain unauthorized access to them;
      6. 5.1.6permit direct or indirect access to or use of them in a way that circumvents a contractual usage limit (whether imposed by Encord or a third party), or use them to access, copy or use any of Encord’s IPRs except as expressly permitted under this Agreement;
      7. 5.1.7use them in a way that adversely impacts their availability or interferes with or disrupts their integrity or performance or breaches or circumvents any security measure;
      8. 5.1.8modify, copy, or create derivative works of them (including any part, feature, function or user interface thereof);
      9. 5.1.9in respect of the Encord Software and SaaS Services only and except to the extent expressly permitted by applicable law that cannot be excluded between the Parties, disassemble, reverse engineer, decompile, attempt to copy, reverse compile or create a derivate work from them, or attempt to derive their source code or otherwise reduce to them to human-perceivable form, or otherwise attempt to derive or gain improper access to any software components, models, algorithms or systems of the SaaS Services;
      10. 5.1.10otherwise act in a manner restricted by, or contrary to the protection of, the Encord IPRs except as expressly permitted by this Agreement; or
      11. 5.1.11use them to build a competitive product or service.

6. 6. Confidentiality

   1. 6.1Use. Where a Party (the “Recipient”) receives the other Party’s (the “Discloser’s”) Confidential Information in connection with this Agreement, the Recipient shall: (a) not use or disclose to third parties such Confidential Information, except as necessary to exercise its rights and fulfil its obligations under, or as expressly permitted by, this Agreement; (b) hold such Confidential Information in confidence; and (c) protect such Confidential Information in the same manner as it protects its own proprietary or confidential information, and with no less than reasonable care.
   2. 6.2Exceptions. The Recipient’s obligations under this Section 6 will not apply to any Confidential Information that: (a) was in the Recipient’s possession lawfully and without restriction prior to its disclosure; (b) a third party rightfully disclosed to the Recipient free of any confidentiality obligations; (c) through no fault of the Recipient is or becomes in the public domain; or (d) is independently developed by the Recipient without use of the Discloser’s Confidential Information.
   3. 6.3Permitted Disclosures. The Recipient may disclose the Discloser’s Confidential Information to the extent: (a) expressly approved in writing by the Discloser; (b) to its employees, contractors, service providers and professional advisers who “need to know” such information for the Recipient’s exercise of its rights and obligations under this Agreement; and (c) required by applicable law or court order, provided that (unless prohibited by law) the Recipient notifies the Discloser in writing without undue delay of such required disclosure and (at the Discloser’s expense and request), provides reasonable assistance to the Discloser to contest or limit the scope of such disclosure.

7. 7. Data Protection and Security

   1. 7.1Client compliance. Client shall comply with all Data Protection Laws applicable to it and the processing of personal data in connection with this Agreement. Without limitation to the generality of the foregoing, Client warrants that it has obtained all consents and provided all notices required by Data Protection Laws to permit the lawful transfer to and processing by Encord of Client Personal Data in connection with this Agreement and as set out in Section 7.4. This Section 7 is in addition to, and does not reduce, remove or replace, Client’s obligations under Data Protection Laws.
   2. 7.2Encord compliance. Encord will comply with the Data Protection Laws in its processing of Client Personal Data in connection with this Agreement.
   3. 7.3Encord as processor. Except as set out in Section 7.4, Client is “controller” and Encord is “processor” of all Client Personal Data processed by Encord to provide the Services.
   4. 7.4Parties as controllers. A Party acts as controller in processing the personal data of business-as-usual contacts of the other Party for the administration of this Agreement and the Parties’ commercial relationship (including exercising its rights and remedies). Encord acts as controller for the processing of any personal data contained in Usage Data as described in Section 8.2 and feedback as described in Section 8.4.
   5. 7.5Sensitive Data. Without prejudice to Section 7.1, Client may not include in Client Input or use the Services to process any Sensitive Data unless: (a) Client has provided a summary of such Sensitive Data to Encord, including the types and volume of information; (b) Encord has given its prior written consent; and (c) if such Sensitive Data includes HIPAA Data, Client has complied with Section 7.6. Encord can condition its consent on Client de-identifying and/or anonymising Sensitive Data.
   6. 7.6HIPAA Data. Where applicable, Client shall comply with its obligations under HIPAA, including (where required by law or Encord): (a) de-identifying data sets prior to their upload to the Services; and (b) the Parties executing a Business Associate Agreement (upon which it will be incorporated into this Agreement). Unless a Business Associate Agreement is in place, Encord will have no Liability for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any applicable law.
   7. 7.7Security Standard. Encord will implement and maintain and will use commercially reasonable efforts to ensure that any third-party provider of hosting services implements and maintains, reasonable industry-standard security measures designed to reduce the likelihood of unauthorized access, use, alteration or disclosure of Client Input. Provided Encord complies with the foregoing sentence, Encord shall have no Liability to Client for any unauthorized access to, loss or corruption of Client Input.

8. 8. Intellectual Property Rights

   1. 8.1Encord IPRs. Client acknowledges and agrees that Encord and/or its licensors own all IPRs in and to the Services. Except as expressly stated herein, this Agreement does not grant Client any rights or licenses to, under or in respect of the Encord IPRs. 
   2. 8.2Usage Data. Encord may collect and use Usage Data to monitor, maintain the security of and improve its products and services. Encord shall not share Usage Data with any third party for such third party’s own purposes unless such information has been aggregated and de-identified so that it cannot identify Client or any Authorized User. 
   3. 8.3Encord Trademarks. The Encord Trademarks are owned or licensed by Encord and may not be used without Encord’s prior express written permission.
   4. 8.4Feedback. Encord may use all Client (including Authorized Users) feedback without restriction or obligation to any person, and Client hereby assigns (with full title) all present and future rights, title, and interest in such feedback to Encord.
   5. 8.5Client Marketing Reference. Encord may add Client’s name and logo to a list of Encord customers to identify Client as a customer on our website, and for use in marketing and promotion materials, collateral, presentations and publications. Upon Client’s written request, Encord will promptly remove any such marks from our website and, to the extent commercially feasible, our marketing materials.
      

9. 9. Warranties

   1. 9.1General. Both Parties warrant that they (i) have full right, power, and authority to enter into and perform their obligations under this Agreement; and (ii) will comply with all laws applicable to it in the performance of its obligations under this Agreement.
   2. 9.2Services Warranties. Encord warrants that:
      1. 9.2.1SaaS Services will perform in accordance with the Documentation in all material respects; and
      2. 9.2.2Professional Services and Support shall be performed with reasonable skill and care, (together the “Services Warranties”)
   3. 9.3Breach of the Services Warranties. Client shall report any breach of the Services Warranties without undue delay to Encord by delivering a written, reasonably detailed description of the failure to the Encord support team by email to Support@encord.com (or such successor email as Encord may provide). Such description must be sufficiently detailed to allow Encord to reproduce the non-conformance. Upon receiving such notice, Encord will apply commercially reasonable endeavours, without undue delay, to correct the non-conforming Services. If Encord deems that Encord cannot reasonably remedy such non-conforming Services, Client’s exclusive remedy, and Encord’s sole obligation and entire Liability, will be the re-performance of the applicable Services in a reasonable timeframe that is agreed upon by both Parties. For the avoidance of doubt, the Services Warranties do not apply to any free-of-charge Services. 
   4. 9.4Disclaimer. Except as expressly stated in this Agreement, to the fullest extent permitted by law, Encord, our affiliates, and our suppliers: (a) do not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, noninfringement, or error-free or uninterrupted use of the Services; (b) make no representation about the content or information accessible through the Services; and (c) do not warrant that the operation of the Services will meet your requirements or a fit for any particular purpose.
   5. 9.5Time is not of the essence. Dates and times are estimates only. Time is not of the essence.

10. 10. Encord Third Party IPR Infringement Indemnity and Client Indemnity

    1. 10.1Encord Indemnification Obligation. Subject to Client’s compliance with Sections 10.2 and 10.3, Encord shall indemnify Client against all damages finally awarded in judgment against Client in any third party claim that Client’s use of the Encord Services in accordance with this Agreement infringes or misappropriates a third party’s IPRs (“Third Party IPR Claim”). 
    2. 10.2Exclusions. Encord will have no Liability or obligations to Client under this Section 10 for any Third Party IPR Claim arising out of or in connection with: (a) Client Input or any Third Party Product or outputs made available through use of the Third Party Product; (b) any modification or combination of the Services that is not performed or approved in writing by or on behalf of Encord; (c) Client’s use of the Services after becoming aware or receiving notice or an actual or potential Third Party IPR Claim; or (d) Client’s breach of this Agreement.
    3. 10.3Indemnification Notices. Client must in respect of any alleged or actual Third Party IPR Claim: (a) promptly notify Encord in writing on becoming aware of it; (b) not make or attempt any admission, compromise or settlement; and (c) reasonably cooperate with Encord in, and give Encord sole conduct of, the defence and settlement of any Third Party IPR Claim.
    4. 10.4Remedies. If Encord reasonably believes any Services might infringe a third party's IPRs, then Encord may, at Encord’s sole option and expense: (a) procure the right for Client to continue using such Services; (b) modify such Services to make them non-infringing without materially reducing their functionality; or (c) replace such Services with a non-infringing, materially functionally equivalent alternative. If Encord considers none of (a) to (c) commercially reasonable, Encord may, on immediate written notice, terminate this Agreement and/or the applicable Order Form, and provide Client with a pro-rata refund of prepaid and unused Fees for the applicable Services.
    5. 10.5Sole Remedy. This Section 10 states Client’s sole and exclusive rights and remedies, and Encord’s sole obligations and Liability, for claims of infringement of any third party rights.
    6. 10.6Client Indemnity. Client shall indemnify Encord and keep Encord fully and effectively indemnified against all costs, expenses, damages and losses, including any interest, fines, reasonable legal and other professional fees and expenses finally awarded in any third-party legal proceeding to the extent arising from (a) Client Input or (b) the Client’s use and/or Client’s Authorized Users use of the Services. 
       

11. 11. Limitation of Liability

    1. 11.1Encord Liability Cap. Subject to Section 11.3, Encord’s total aggregate liability in each Contract Year for all Liabilities arising out of or relating to this Agreement whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise is limited to the Fees Client paid during such Contract Year under the Order Form in connection with which the Liability arose.
    2. 11.2Excluded Liabilities. To the extent permitted by applicable law and subject to Section 11,3, Encord will have no Liability whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any: (a) indirect, consequential, special, incidental, or punitive Liability, however arising; (b) direct or indirect (i) loss of revenues, profits, savings or goodwill, (ii) wasted expenditure, (iii) cost of replacement services, or (iv) loss or corruption of data or information; or (c) pure economic loss. The foregoing applies even if Encord has been made aware of the possibility of any such Liability.
    3. 11.3Liabilities that cannot be excluded by law. Nothing in this Agreement excludes or limits either Party's Liability for: (a) death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or (b) matters for which liability cannot be excluded or limited under applicable law;
    4. 11.4Unlimited Liabilities. Each Party’s Liability for its indemnification obligations is unlimited. Nothing in these Terms excludes or limits Client’s Liability for: (a) infringement or breach of Encord’s IPRs, or (iii) Client’s payment obligations.
    5. 11.5Client is solely responsible. Client assumes sole responsibility for results obtained from the use of the SaaS Services, and for conclusions drawn from such use. Encord is not liable for any Liability caused by, or responsible for, errors or omissions in any Client Input, information, instructions or scripts provided to Encord by Client in connection with the Services, any Third Party Product or any actions taken by Encord at Client’s direction.
    6. 11.6Relief Events. Encord is not liable for Liabilities arising in connection with any breach of this Agreement or delay or failure to provide the Services if such event results from a Relief Event. 
       

12. 12. Term and Termination

    1. 12.1Term. This Agreement shall commence on the Commencement Date and shall, unless terminated in accordance with its terms, continue until the date on which all Order Forms have expired or terminated (the “Term”). Unless otherwise stated in the relevant Order Form, Order Forms shall commence on their Effective Date and continue for the Initial Term specified therein (or, if not specified, 1 year) and thereafter renew for successive 1-year terms, unless otherwise terminated in accordance with this Agreement. Encord reserves to right to increase its Fees on any renewal by the percentage increase in the Consumer Price Index over the preceding twelve (12) months, plus five percent (5%). A Party may prevent renewal of any Order Form by providing written notice to the other Party at least 30 days prior to such Order Form’s renewal date.
    2. 12.2Termination. Without prejudice to any other right or remedy available to it, a Party may terminate this Agreement (including all Order Forms) if: (a) the other Party materially breaches this Agreement and, if remediable, fails to cure that breach within 30 days after receipt of a written notice of the breach; or (b) the other Party is subject to an Insolvency Event.
    3. 12.3Encord termination and suspension rights. Without prejudice to any other right or remedy available to it, Encord may, on immediate written notice, terminate this Agreement (including any or all Order Forms) and/or suspend its provision of and/or Client’s access to the Services if: (a) necessary to comply with law; (b) any Fees are more than 30 days overdue; (c) Client has breached Section 5 or a term of this Agreement relating to (or otherwise infringed) Encord IPRs; or (d) Encord reasonably believes that Client's use of the Services poses a risk to the Services, Encord’s other users, or Encord’s infrastructure, security or third-party relationships. Encord may on immediate written notice suspend its provision of and/or Client’s access to the Services if Client is in breach of this Agreement. If an Order Form is terminated or notice is given to terminate an Order Form, Encord may terminate this Agreement (including all Order Forms), on written notice to Client.
    4. 12.4Effects of Termination.
       1. 12.4.1At the termination of this Agreement: (a) all licences granted in respect of and access to the Services and all Encord IPRs under this Agreement will immediately terminate; and (b) each Party shall return or delete the other Party’s Confidential Information (except where and solely for the period required by law to retain such Confidential Information, or as may be contained in “business as usual” backups which are not generally accessible and shall be deleted in accordance with such Party’s usual backup retention periods).
       2. 12.4.2Termination of this Agreement howsoever arising will not affect (a) the Parties’ accrued rights and obligations as at termination; or (b) any terms of this Agreement that are expressly stated to or impliedly survive termination.
       3. 12.4.3Upon termination of an Order Form: (a) all licences granted in respect of and access to the Services and all Encord IPRs under such Order Form will immediately terminate; and (b) Client will pay Encord all Fees set out in such Order Form, including for Professional Services that are in progress as of the effective date of such termination, and reimburse Encord for incurred Expenses.

13. 13. Dispute Resolution

    1. 13.1Jurisdiction and Venue. Subject to Section 13.2, this Agreement and all claims and disputes (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, English law. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
    2. 13.2Informal Resolution. Before filing a claim, a Party will provide written notice to one another and will try, in good faith, to settle any dispute. If the dispute is not resolved within 30 days of notice, a formal proceeding may be brought in accordance with this Section 13

14. 14. Miscellaneous

    1. 14.1Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will be unimpaired and the invalid or unenforceable provision will be deemed modified to the minimum extent possible so that it is valid and enforceable to the maximum extent permitted by law and gives effect to the Parties’ original intention.
    2. 14.2Independent Contractor Relationship. Encord’s relation to Client under this Agreement is that of an independent contractor. Nothing in this Agreement is intended to or should be constructed to create a partnership, joint venture, or employer-employee relationship between Client and Encord or any of Encord’s employees, contractors or agents.
    3. 14.3Non-solicitation. Client shall not (except with Encord’s prior written consent) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from Encord’s employment any person employed or engaged by Encord in the provision of the Services at any time during the Term or for a further period of 6 months after the Term other than by means of an advertising campaign open to all comers and not specifically targeted at any Encord staff.
    4. 14.4Subcontracting and assignment. Encord may subcontract, assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under this Agreement. Encord is responsible for its subcontractors in their performance of this Agreement. Client shall not, without Encord’s prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
    5. 14.5Construction. Section headings will not affect interpretation of this Agreement. When used in this Agreement, “including” means “including without limitation.” In the event of any conflict between this Agreement and a Order Form, this Agreement will control unless such Order Form expressly states otherwise. A reference to writing or written includes email. Unless the context otherwise requires, words in the singular include the plural and vice versa.
    6. 14.6Waiver. All waivers must be in writing and signed by both Parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    7. 14.7No Third Party Beneficiaries. A person who is not a Party to this Agreement shall have no rights to enforce its terms, including under the Contracts (Rights of Third Parties) Act 1999.
    8. 14.8Entire Agreement. This Agreement is the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreement between the Parties. Each Party: (a) acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement; and (b) agrees that it shall have no claim for innocent or negligent misrepresentation or misstatement based on any statement in this Agreement.
    9. 14.9Amendments. No modification of or amendment to this Agreement will be effective unless in writing and signed by the authorized representatives of each Party.
    10. 14.10Force Majeure. With the exception of the payment of any Fees, neither Party shall be responsible for delays or failures to perform their respective responsibilities under this Agreement due to causes beyond their reasonable control.  If the performance of a Party is interfered with for reasons beyond its reasonable control, that Party, upon prompt written notice to the other Party, will be excused from performance to the extent of the interference. The Party that is so interfered with will take reasonable steps to remove the causes of non-performance and resume performance as soon as the causes are removed.
    11. 14.11Notices. Encord shall provide notices under this Agreement to Client by sending an email to the email address we have on file for Client. Client will provide notices under this Agreement to Encord by sending an email to legal@encord.com. Notice will be treated as received when the email is sent, provided no bounceback is received.