Jellyfish: Share of Search™ Platform Terms and Conditions
These Terms and Conditions, the Order Form and any SOW(s) (collectively the “Agreement”) are entered into by and between Jellyfish and Client, and set out the terms and conditions that govern Client’s rights to access and use Share of Search Platform and to receive the Services (if any) agreed in the Order Form.
Unless otherwise defined in the body of the Agreement or above, any capitalised terms have the meaning given to them in Section 15.
THE PARTIES AGREE AS FOLLOWS:
1. PLATFORM ACCESS
1.1 Platform Access. Subject to Client’s and its Authorised Users’ continued compliance with the Agreement, Jellyfish grants Client a limited, personal, non-exclusive, non-sublicensable and non-transferable right during the Subscription Term for Client’s Authorised Users to access Share of Search Platform via the Platform Interface to use the ordinary features and functionalities of Share of Search Platform as part of its internal business operations subject to the Usage Package purchased by Client as part of its subscription.
1.2 Availability. Jellyfish will use commercially reasonable efforts to maintain the operation and availability of Share of Search Platform, subject always to (a) any scheduled or emergency maintenance or upgrades (including any downtime therefor); (b) circumstances outside Jellyfish’s reasonable control (including any Force Majeure Event); and/or (c) resulting from any breach, non-performance or any other default by Client under the Agreement.
1.3 Authorised Users. Client is solely responsible for the acts and omissions of its Authorised Users. Client shall immediately notify Jellyfish of any unauthorised use of any Authorised User’s Access Credentials. Client shall: (a) ensure that: (i) only Authorised Users access Share of Search Platform; and (ii) each Authorised User maintains the confidentiality of their Access Credentials, and only access Workspace(s) for which they have been allocated Access Credentials; (b) not allow any Access Credentials allocated to an Authorised User to be used by more than one individual Authorised User; and (c) immediately notify Jellyfish if any Authorised User ceases to be employed or otherwise engaged by Client.
1.4 Affiliate Rights. The rights provided under this Section 1 and elsewhere in the Agreement are granted to Client only, and shall not be considered granted to any of Client’s Affiliates unless such an Affiliate enters into an Affiliate Acknowledgment Agreement or otherwise expressly agreed in an Order Form.
1.5 Additional Services. In addition to making available Share of Search Platform, if and as agreed in the Order Form, Jellyfish shall also provide the Services to Client. Jellyfish shall provide any such Services in accordance with reasonable care and skill consistent with good industry standards and practices. To the extent that any such Services involve employees or other staff of Jellyfish or any of its Affiliates using Share of Search Platform as part of any Managed Services, such use of Share of Search Platform is considered to be carried out on behalf of Client.
2. OWNERSHIP AND LICENSING
2.1 Jellyfish Ownership. As between the Parties, Jellyfish retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to: (a) the Jellyfish Technology; (b) the structure, format and presentation (including any copyright or similar rights therein or thereto, and any trade marks, trade dress, branding, logos, get-up, look-and-feel displayed thereon, etc.) of any Analyses and/or Reports (“Jellyfish Formatting”); and (c) unless and to the limited extent expressly agreed otherwise under the Order Form or any SOW, any work product, deliverables, materials, content, software, technology or similar produced, conceived, created, developed as part of or in connection with the Configuration Services (“Configurations”, which excludes, for the avoidance of doubt, Analyses which may be generated by personnel of Jellyfish or its Affiliates as part of any Managed Services). Client will not acquire any right, title or interest in or to the Jellyfish Technology, nor any Configurations, subject only to the limited right to use Share of Search Platform (including any such Configurations) expressly granted in Section 1.1, and Jellyfish reserves all rights therein and thereto not expressly granted in the Agreement.
2.2 Client Ownership. As between the Parties, Client retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to all Inputs. Furthermore, Jellyfish hereby assigns to Client its Intellectual Property Rights in and to the Analyses and Reports (excluding always any right, title and interest in and to the Jellyfish Technology, Jellyfish Formatting, any other Jellyfish Brand Materials, or any right, title or interest otherwise reserved by Jellyfish).
2.3 Licence to Jellyfish. Client hereby grants to Jellyfish a non-exclusive, worldwide, royalty-free and fully paid-up licence during the Subscription Term to use any Client Content, and under any other relevant Intellectual Property Rights owned or licensed by Client, as necessary to provide, operate and make available Share of Search Platform to Client and/or to provide the Services.
2.4 Licence to Client. Jellyfish hereby grants to Client a non-exclusive, worldwide, royalty-free, revocable (only upon breach of the Agreement, including Section 2.5) and fully paid-up licence under any relevant Intellectual Property Rights owned or licensed by Jellyfish to the limited extent necessary to allow Client to take the benefit of its rights in the Analyses and/or Reports, including to make the Reports (but not the standalone Analyses) stylised with the Jellyfish Formatting publicly available subject always to Section 2.5.
2.5 Jellyfish Brand Usage. Wherever Client or any person on its behalf carries out any activities that involves the public identification of Jellyfish, Share of Search Platform or otherwise uses the Jellyfish Brand Materials (including public display of any Reports) Client shall comply with Jellyfish’s brand guidelines made available to Client from time to time, which detail the permitted form and manner in which any Jellyfish Brand Materials may be used. Client shall not use any Jellyfish Brand Materials in a manner which disparages or is detrimental to Jellyfish or its goodwill, reputation and image or which would tend to allow any trade marks or similar within the Jellyfish Brand Materials to become generic, lose their distinctiveness and/or become liable to mislead the public. Client shall not register or apply to register any trade marks, trade names, domain names or any other rights resembling any part of the Jellyfish Brand Materials. Any goodwill derived from the use by Client of the any Jellyfish Brand Materials shall accrue and inure to Jellyfish.
3. FEES
3.1 Payments. Unless otherwise agreed in writing, Client shall pay the Fees in accordance with this Section 3 and the Order Form and any SOW (as and where applicable).
3.2 Invoicing and Payment. Jellyfish shall issue Client with invoices in respect of any Fees that come due and payable and Client shall pay the amounts shown in all such invoices in full by electronic transfer into the Jellyfish Bank Account as set out in the Order Form (or such other account as directed by Jellyfish) within twenty-eight (28) days of the invoice date, unless otherwise agreed in writing.
3.3 Fees. All Fees: (a) shall be payable in the currency and at the exchange rate (if any) and in accordance with the payment terms specified in the applicable Order Form or SOW; (b) are non-cancellable and non-refundable unless and to the extent expressly provided otherwise in the Agreement; and (c) are exclusive of any and all taxes (including value added tax).
3.4 Fee Adjustment for Additional Features. Client acknowledges that from time to time, Jellyfish may introduce Additional Features to Share of Search Platform. The introduction of such Additional Features may result in an increase in the Fees payable by Client. The Supplier may increase the Fees upon introduction of any Additional Features, provided that Jellyfish gives the Client at least 30 days’ prior written notice of such increase. The amount of the increase shall be based on the additional value or functionality provided by the Additional Features, as may be determined at the reasonable discretion of Jellyfish.
3.5 Exclusion from Fee Changes in Section 3.6 below. Any increase in Fees pursuant to Section 3.4 above shall be in addition to the increase of Subscription Fees specified in Section 3.6 below. The parties agree that the introduction of Additional Features will be treated separately from the Retail Price Index adjustments, and will not affect Retail Price Index increases which shall continue to apply as specified.
3.6 FEE CHANGES. Jellyfish shall increase the Subscription Fees on an annual basis with effect from the anniversary of the Effective Date in line with the percentage increase in the Retail Price Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Effective Date and shall be based on the latest available figure for the percentage increase in the Retail Price Index.
3.7 Late payments. In addition to any other rights or remedies available to Jellyfish, if Client fails to pay any sums by more than seven (7) days following the invoice due date: (a) Jellyfish may, in its sole discretion, charge interest on the overdue amount at 10% per annum from the invoice due date until the date of receipt of payment; (b) Client shall also pay all reasonable expenses and legal fees Jellyfish incurs in collecting any late payments; and (c) Jellyfish may suspend the provision of any access to Share of Search Platform and/or any and all other parts of the Services upon until payment of the sums is made by Client in full without liability to Client or prejudice to any other rights or remedies available to Jellyfish in the circumstances.
3.8 Third parties. Any account and related billing and payment information which Client provides to Jellyfish may be shared with third parties solely for the purposes of performing credit checks, effecting payment to Jellyfish (including collection activities), or servicing Client’s account.
4. RESTRICTIONS
4.1 Client shall not and shall not suffer, allow, assist or enable any other person (including Authorised Users) to: (a) use any Jellyfish Technology, Analyses or Reports in any manner or for any purpose that is restricted by or inconsistent with the Agreement and/or applicable law (including using Share of Search Platform beyond the scope of Client’s Usage Package); (b) provide or otherwise make Share of Search Platform available to any third parties; (c) use any Jellyfish Technology, Analyses or Reports to create, market or distribute any product or service that is similar to, competitive with, or otherwise replicates or seeks to replicate any features or functionalities of, the Jellyfish Technology or otherwise to provide any products or services to or for the benefit of any third party; (d) introduce to the Jellyfish Technology any ‘back door’, ‘drop dead device’, ‘time bomb’, ‘Trojan horse’, ‘virus’ or ‘worm’ or any other equivalent code, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of the Jellyfish Technology or any device, system, data or file owned or controlled by Jellyfish or any third party; (e) (re)create, access, inspect or derive any underlying models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code)), and/or data used to train or create those models, which are part of the Jellyfish Technology and/or any Third Party AI Platforms (as defined below) (including as part of any so-called ‘model extraction’, ‘model inference’ or ‘model inversion’ techniques or similar); (f) modify, copy, resell, rent, lease, sub-licence, load, merge, adapt, translate, or create derivative works of, the Jellyfish Technology, any Analyses or Reports save as expressly permitted under the Agreement; (g) contest, challenge or otherwise make any claim or take any action adverse to Jellyfish’s ownership of, or interest in, the Jellyfish Technology and/or Jellyfish Brand Materials; (h) re-use, disseminate, copy, or otherwise use the Jellyfish Technology, any Analyses or Reports in a way that infringes, misappropriates, or violates any Intellectual Property Rights or other right of Jellyfish or any third party; (i) engage in competitive analysis or benchmarking of the Jellyfish Technology or the Services; (j) remove, alter or obscure any trade mark notice, copyright notice or any other proprietary notice from the Jellyfish Technology, any Analyses or Reports; (k) circumvent, disable, or interfere with security-related, authentication-related, copy-protection or rate-limiting features of the Jellyfish Technology; (l) reverse engineer, decompile, unbundle or disassemble the whole or any part of the Jellyfish Technology, unless and to the extent unavoidably permitted by unavoidable laws of Client’s jurisdiction for limited interoperability purposes with respect to Share of Search Platform only; (m) impose an unreasonable or disproportionately large load or strain on the Jellyfish Technology; (n) automatically share, publish or take any action in reliance upon any Analyses without prior human intervention, review and approval; or (o) take any action designed or intended to do any of the foregoing. Breach of this Section 4 constitutes a material breach of the Agreement for the purposes of Section 11.2, and Jellyfish may immediately suspend the provision of any access to Share of Search Platform and/or performance of any other Services for any such breach.
5. WARRANTIES AND DISCLAIMERS
5.1 Client Warranty. Client warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of the Agreement at all relevant times, all necessary rights, power, consents and authority: (a) to use Inputs as contemplated by the Agreement; and (b) to grant Jellyfish the rights and licences set out in Section 2.3.
5.2 Limited Warranties. Each Party warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of the Agreement at all relevant times, the requisite power, capacity, and authority to enter into the Agreement, to perform and carry out its the obligations under the Agreement. Jellyfish warrants that, during the Subscription Term, Share of Search Platform will materially conform to the then-current Documentation when used in accordance with that Documentation and the provisions of the Agreement; provided that such warranty shall not apply: (a) in the event that Client has breached the Agreement; or (b) to any defects or issues arising as a result of: (i) any modification by any person other than Jellyfish; and/or (ii) use of Share of Search Platform in combination with other products, hardware, equipment, software, or data not made available by Jellyfish to be used with Share of Search Platform.
5.3 DISCLAIMER. Except as expressly provided in the Agreement, Share of Search Platform, Documentation, Services, Analyses and Reports are provided “as is” and to the fullest extent permitted by law, Jellyfish disclaims all other conditions, warranties, representations, undertakings, or other terms which might have effect between the Parties with respect to Platform, Documentation, Services, Analyses and/or Reports, or otherwise be implied or incorporated into the 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. Furthermore, Client acknowledges that Jellyfish: (a): (i) gives no express or implied warranty, representation, nor undertakings that the contents of any Analyses and/or Reports do not infringe third party rights (including Intellectual Property Rights); nor (ii) warrants, represents, endorses, supports or guarantees the completeness, truthfulness, accuracy, legality, originality, reliability, performance, appropriateness, fitness for purpose or any other attributes of any Analyses and/or Reports, unless and to the extent expressly agreed otherwise as part of any Managed Services; and (b) shall not be, unless and to the extent expressly agreed otherwise as part of any Managed Services, responsible for reviewing or attempting to verify the accuracy or currency of any Analyses and/or Reports. Client shall be solely responsible for Client’s use of Share of Search Platform, Services, Analyses and Reports, and, unless and to the extent expressly agreed otherwise as part of any Managed Services, for evaluating the fitness of any Analyses and/or Reports as appropriate for Client’s specific use case or any other purpose.
6. CLIENT DEPENDENCIES
Client shall: (a) implement and maintain effective technical and organisational measures (including security policies, procedures, controls, and systems) to prevent unauthorised disclosure of Access Credentials and unauthorised access to Share of Search Platform; (b) secure any systems and devices Client and its Authorised Users uses to access Share of Search Platform; (c) ensure that all Authorised Users of the Share of Search Platform only access the Share of Search 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 Jellyfish from time to time; (d) ensure that it has an internet connection with adequate bandwidth for Authorised Users to access and use Share of Search 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 Client Content, and Client further acknowledges that it, and not Jellyfish, is solely responsible for doing so.
7. THIRD-PARTY AI PLATFORMS
7.1 Third Party AI Platforms. The Services include information and data gathered from: (a) public APIs of leading AI platforms, including: (i) OpenAI’s ChatGPT; (ii) Anthropic’s Claude; and (iii) Google’s Gemini; (b) from open-source LLMs, including to variants of Meta’s Llama; and (c) any other third-party AI platforms which Jellyfish may add to the Services from time to time (together “Third Party AI Platforms”).
7.2 Usage of Third Party AI Platforms. The generation of Analyses and the visualisation functionalities within Share of Search Platform are powered by certain Third Party AI Platforms. For Customers provided with Managed Services, the incorporation of certain Third Party AI Platforms can be controlled depending upon the configuration of Share of Search Platform and/or particular Workspaces as agreed as part of those Managed Services. Client acknowledges that by using Share of Search Platform (including through its configuration of relevant functionalities thereof), it is instructing Jellyfish to share Client Content with the relevant providers of such Third Party AI Platforms to the extent necessary to facilitate such functionalities.
7.3 Third-Party Terms. If and to the extent one or more of the following Third Party AI Platforms are used to power Share of Search Platform provided to Client, Client agrees to comply with the following terms and conditions applicable to such Third Party AI Platforms: (a) in respect of Open AI, Client agrees to comply with OpenAI’s Service Terms, Sharing & Publication Policy, Usage Policies, and any other applicable guidelines or policies OpenAI may publish from time to time; (b) in respect of Anthropic, Client agrees to comply with Anthropic’s Acceptable Use Policy; (c) in respect of Google, Client agrees to comply with Google’s Generative AI Prohibited Use Policy; and (d) in respect of ElevenLabs, Client agrees to comply with ElevenLabs’s Prohibited Use Policy.
7.4 No Training. Jellyfish shall not, and shall not authorise any provider of any Third Party AI Platforms to, use any Client Content nor any Analyses or Reports to create, train, test, refine or improve any machine learning algorithms or artificial intelligence systems (including any associated architectures, labels, models, or weights), including those models, algorithms or systems that may be part of the Third Party AI Platforms used under the Agreement.
7.5 NO LIABILITY. Client acknowledges that in relation to these Third Party AI Platforms:
(a) Jellyfish does not control and is not responsible for those Third Party AI Platforms, and Jellyfish will have no liability for any unavailability or failure of any Third Party AI Platform, or any third party provider’s decision to discontinue, suspend or terminate any Third Party AI Platform;
(b) save as expressly agreed as part of the Managed Services, Jellyfish is not responsible for their content or output; and
(c) save as expressly agreed as part of the Managed Services, Jellyfish does not monitor their use by Client and/or warrant, endorse, guarantee, or assume any responsibility for them.
8. DATA PROTECTION
8.1 Application. Unless otherwise agreed by the Parties, Client shall ensure that the Client Content does not contain any Personal Data, and Client shall not otherwise cause Jellyfish to Process any Personal Data as its Processor under the Agreement (including as part of the Services).
8.2 Further Agreement. In the event that it is agreed that Client may include Personal Data in the Client Content, it is: (a) acknowledged that Jellyfish shall act as a Processor of Client with respect to its Processing of that Personal Data on Client’s behalf under the Agreement; and (b) agreed that the Parties will execute a written addendum the Agreement to be incorporated into the Agreement which will conform to the applicable requirements of Data Protection Laws relating to that Processing by Jellyfish as Client’s Processor.
8.3 General. Without prejudice to the foregoing, to the extent any Personal Data is Processed by either Party in connection with the administration of the Agreement and/or the Services, each Party agrees to comply with its obligations under Data Protection Laws as a Controller.
8.4 Interpretation. For the purposes of this Section 8, the following additional defined terms shall apply: (a) “Data Protection Laws” means the privacy, data protection and data security laws and regulations of any jurisdiction applicable to any relevant Processing of Personal Data (including the General Data Protection Regulation 2016/679 of the European Union and that same Regulation as it forms part of the law of the United Kingdom (together, the “GDPR”)); (b) “Personal Data” means any information that relates to an identified or identifiable natural person; (c) “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data (whether or not by automated means), and grammatical inflections thereof shall be construed accordingly; and (d) “Controller” and “Processor” each has the meaning given to such term in the GDPR.
9. INDEMNITY
Client agrees to indemnify Jellyfish on demand for, and hold harmless Jellyfish from and against, any and all Losses suffered or incurred by Jellyfish arising out of or in connection with any third party Claim brought, made or threatened against Jellyfish that: (a) any Client Content (excluding any Analyses), and any other relevant Intellectual Property Rights owned or licensed by Client infringes, misappropriates or violates the rights (including Intellectual Property Rights) of any third party; or (b) Client’s breach of the Agreement (this indemnity, the “Client Indemnity”).
10. LIMITATION OF LIABILITY
10.1 Unlimited Liability. Nothing in the 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) for gross negligence or wilful misconduct; (d) for any other act, omission, or liability which may not be limited or excluded by applicable law; or (e) with respect to Client, Client’s liability: (i) to pay Jellyfish any sums due and payable under the Agreement; or (ii) under the Client Indemnity.
10.2 EXCLUSIONS. Subject only to Section 10.1, Jellyfish shall not in any circumstances be liable to Client whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for: (a) any (i) loss, damage or liability (in each case whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill, anticipated savings or wasted expenditure (including management time); or (ii) special, indirect or consequential loss or damage whatsoever, in each case (i) and (ii) however arising under or in connection with the Agreement and even if Jellyfish was aware of the possibility that such loss or damage might be incurred; or (b) any loss, damage or liability (in each case whether direct or indirect) arising as a result of (i) Client’s or any third party’s use of or reliance upon any Analysis; (ii) any loss or corruption of data or information; (iii) any breach, non-performance or any other default by Client under the Agreement; and/or (iv) any failure by Client to comply with any applicable law, regulation or applicable code of practice.
10.3 LIABILITY CAP. Subject to Section 10.1 and 10.2, Jellyfish’s total aggregate liability to Client in respect of any and all 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 the Agreement shall under no circumstances exceed one hundred per cent (100%) of the Fees paid by Client under the 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 against Jellyfish for the specific Workspace(s) which form the subject matter of that Claim, provided that, the existence of more than one 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, the Agreement shall: (a) commence on the Effective Date 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 ninety (90) days before the end of the Initial Term or then-current Renewal Term to terminate the 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 the 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 the 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. The Parties acknowledge and agree that failure by Client to pay any Fees when due shall constitute a ‘material breach’ for the purposes of Section 11.2(a).
12. CONSEQUENCES OF TERMINATION
12.1 Consequences. On termination of the Agreement: (a) notwithstanding Section 3, Client shall promptly (and in any event within ten (10) Business Days of the date of termination) pay Jellyfish any outstanding balances owing to Jellyfish under the Agreement; (b) any and all licences, permissions and authorisations granted to Client and/or its Authorised Users by Jellyfish under the Agreement will terminate automatically (for the avoidance of doubt, Client shall cease to use, and cause the cessation of all use of, Share of Search Platform); and (c) each Party will promptly return all Confidential Information 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: (a) in respect of any Confidential Information that Jellyfish may be entitled to retain as necessary to comply with any legal, regulatory, judicial, audit, or internal compliance requirements; (b) in respect of any Confidential Information retained by a Third Party AI Platform, in accordance with any relevant terms governing use thereof; and (c) to any Confidential Information that is retained by Jellyfish 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 Jellyfish’s retention of any such Confidential Information at all relevant times.
12.3 Survival and accrued rights. Any provision of the Agreement that either expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect. Termination of the 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 the Agreement which existed at or before the date of termination.
13. CONFIDENTIAL INFORMATION
In the 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 the 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 without reference to or reliance upon the disclosing Party’s Confidential Information and that independent development can be shown by contemporary written evidence. 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 the Agreement. Each Party shall keep the other’s Confidential Information confidential and, except as otherwise provided in the Agreement, shall limit access to the other’s Confidential Information to those 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.
14. GENERAL
14.1 Marketing. Client acknowledges and agrees that Jellyfish may, and Client hereby grants Jellyfish a right and licence to, include Client’s name and a description of the technology and services provided to Client under the Agreement in case study marketing content, lists of or references to any of Jellyfish’s clients on its website and/or in proposals, and in other marketing materials.
14.2 Export Controls; Sanctions. Client shall comply with all applicable laws relating to sanctions, embargoes, trade and export controls with respect to its enjoyment, implementation and performance of the Agreement (including any Analyses). Furthermore, Client represents and warrants (on an ongoing basis) that: (a) neither it, nor any of its officers or shareholders, is designated on or under any of the U.S. Department of Treasury’s List of specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders, The UK Sanctions List, the consolidated list of persons, groups and entities subject to EU financial sanctions, and/or any other list of sanctioned, prohibited or restricted parties or territories from time to time (each, a “Sanctions List”); and (b) no entity or person (whether natural or legal) that controls, is controlled by, or is under common control with Client (where “control” means the direct or indirect power to direct the affairs of an entity through voting power, economic or contractual interest or otherwise), or that is otherwise acting on behalf, or for the benefit, of Client, is designated on or under any Sanctions List.
14.3 Feedback. If Client provides feedback, suggestions or recommendations to Jellyfish regarding the Jellyfish Technology, Services, Analyses and/or Reports including any flaws, errors, bugs, anomalies, problems with and/or suggestions, desired features or improvements relating to Share of Search Platform and its ongoing development (“Feedback”), Client hereby grants Jellyfish an unrestricted, unconditioned, irrevocable and perpetual right and licence to freely use and exploit such Feedback without any requirement of compensation.
14.4 Analytics. Client acknowledges that Jellyfish may collect and use general usage information about use of Share of Search Platform, to be complied into an aggregated or de-identified form, for use to: (a) enhance, develop or improve the Jellyfish Technology; (b) provide analytics and benchmarking services; and (c) generate and disclose statistics regarding use of Share of Search Platform, provided, however, that no Client-only statistics will be disclosed to third parties.
14.5 Force Majeure. No Party will be in breach of the Agreement nor liable for any failure to perform its obligations under the Agreement if that failure results from circumstances beyond its reasonable control (including, in respect of Jellyfish, any failure resulting from the action or omission of a provider of any Third Party AI Platform, or any unavailability of any Third Party AI Platform, resulting from circumstances beyond Jellyfish’s reasonable control) (a “Force Majeure Event”). If a Force Majeure Event continues for three (3) months, the unaffected Party may terminate the Agreement by giving thirty (30) days’ written notice to the other Party.
14.6 Subcontracting. Jellyfish may engage any third-party to perform its obligations under the Agreement, provided that Jellyfish shall remain fully liable to Client for performance of such obligations (subject to the exclusions and limitations outlined herein).
14.7 Assignment. Neither Party shall assign or transfer all or any of its rights or obligations under the Agreement, without the prior written consent of the other Party; provided that, either Party may, with not less than fifteen (15) Business Days’ prior notice to the other Party, assign the Agreement (in whole and not in part) as part of a change of control or sale of all or substantially all of its business.
14.8 Notices. Any notice required to be given under the 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.
14.9 Variation. Unless and only to the extent expressly permitted in the Agreement, no variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
14.10 Waiver. A waiver of any right or remedy under the 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 the 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 the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.11 Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by the 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 the Agreement, they are not entering into the 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 the Agreement or not) in relation to the subject matter of the Agreement, provided that nothing in the Agreement shall exclude any Party from liability for fraud or fraudulent misrepresentation.
14.12 No Partnership or Agency. Nothing in the 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.
14.13 Rights of Third Parties. Save as expressly agreed under an Affiliate Acknowledgment Agreement, there are no third party beneficiaries under the Agreement, and a person who is not a Party to the Agreement shall not be entitled to enforce any of its terms (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).
14.14 Governing law and jurisdiction. The Agreement and all matters arising from it (including any dispute relating to the existence, validity, or termination of the 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 the Agreement or arising out of or in connection with the Agreement (including any dispute relating to the existence, validity or termination of the Agreement or any contractual or non-contractual obligation) (for the purposes of this Section 14.14, “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.
15. INTERPRETATION
15.1 The following definitions apply to the Agreement (including its recitals, above):
(a) “Access Credentials” means usernames, passwords and other necessary credentials provided by Jellyfish to Authorised Users for the purpose of accessing and using those Workspace(s) via Share of Search Platform.
(b) “Additional Feature(s)” means all and any additional features or functionalities introduced onto Share of Search Platform.
(c) “Affiliate Acknowledgment Agreement” means an additional agreement incorporating the terms of the Agreement, which is entered into by Jellyfish and an Affiliate of Client authorising Client to enjoy certain benefits available to Client under the Agreement (as such benefits are more specifically set out in that Affiliate Acknowledgment Agreement).
(d) “Affiliates” means, with respect to an entity, any entity that directly or indirectly controls, is controlled by, or is under common control with, that entity, where “control” means the direct or indirect power to direct the affairs of an entity through voting power, economic or contractual interest, or otherwise.
(e) “Analysis” means any analysis that is generated through the ordinary use of the features and functionalities of Share of Search Platform based on Inputs, and presented within Share of Search Platform (collectively “Analyses”).
(f) “Authorised Brand” means any relevant authorised brand in respect of which Client is permitted under the Agreement to use Share of Search Platform and the Services, which is set out in the Order Form.
(g) “Authorised Users” means those of Client’s employees, agents, and independent contractors who are authorised from time to time by Jellyfish to use Share of Search Platform under the Agreement via certain of the Workspace(s) allocated to an Authorised Brand, and are provided Access Credentials.
(h) “Business Day” means any day which is not a Saturday, Sunday or public holiday in London, United Kingdom.
(i) “Claim” means any claim, demand, complaint, proceeding or other action.
(j) “Client” means the entity identified in the Order Form who is a counterparty to the Agreement.
(k) “Client Content” means Inputs, Analyses and/or Reports.
(l) “Content” means any text, images, audio or video (including, where applicable, as may be comprised in Client’s creatives).
(m) “Documentation” means any manuals, instructions, user guides published by Jellyfish that describe Share of Search Platform and its use, operation, features and functionality.
(n) “Fees” means the fees for: (i) Client’s subscription to Share of Search Platform as set out on the Order Form; and (ii) Jellyfish’s provision of the Services as set out on the Order Form and/or any SOW (as applicable).
(o) “Inputs” means any Content input by Client, its Authorised Users, or Jellyfish on Client’s or its Authorised Users’ behalf to be processed by Share of Search Platform to create Analyses as part of the Services.
(p) “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.
(q) “Jellyfish” means Jellyfish Group Limited, a company incorporated and registered in England and Wales with company number 06227410 whose registered office is at 31 London Road, Reigate, Surrey, RH2 9SS. VAT Number 918023638.
(r) “Jellyfish Brand Materials” means any trade marks, trade dress, branding, logos, get-up, look-and-feel or similar (including any Jellyfish Formatting and the term ‘Share of Search™’) owned, controlled or used by Jellyfish.
(s) “Jellyfish Technology” means collectively (i) Share of Search Platform, as updated from time to time; (ii) any and all other technology and software owned or used by Jellyfish under or in connection with Share of Search Platform, 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 benchmarking, analytics or technical data relating to the performance or operation of Share of Search Platform; (iv) the Documentation as updated and amended from time to time; and (v) any and all Intellectual Property Rights in or to each of (i)-(iv).
(t) “Losses” means all losses, liabilities, damages, costs, claims, charges, regulatory fines, demands, actions and expenses (including legal and professional fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties).
(u) “Order Form” means (i) any order form executed by and between the Parties to purchase a subscription to use Share of Search Platform plus associated Services, or (ii) the Jellyfish webpage that Client uses to purchase a subscription to use Share of Search Platform to use on a self-serve basis (including, where applicable, any email acknowledgement (e.g., an email notice or receipt of purchase) sent to Client following conclusion of that purchase), which incorporates these Terms and Conditions.
(v) “Platform Interface” means the standard web interface via which Client may access the Share of Search Platform (being https://shareofmodel.ai/terms-service or any successor page notified to Client).
(w) “Report(s)” means all and any report(s) compiled by Jellyfish as part of the Managed Services based upon various collated Analyses, which are prepared and made available to Client.
(x) “Services” means those additional services which Jellyfish agrees to provide under the Agreement pursuant to the Order Form and/or SOW, which may involve either: (i) use of Share of Search Platform by Jellyfish’s or its Affiliates’ employees or other staff for the benefit of Client on a ‘managed service’ basis (“Managed Services”); and/or (ii) certain configuration or implementation services with respect to Share of Search Platform, or certain development of requested modifications or additions to Share of Search Platform (i.e., as agreed in a future SOW) (“Configuration Services”).
(y) “Share of Search Platform” means Jellyfish’s cloud-based software‑as‑a‑service ‘Share of Search™’ Platform (including, where the context permits, the Platform Interface) as described in the Documentation, which is owned, operated and/or licensed by Jellyfish (including, where applicable, any Configurations (as defined above)).
(z) “SOW” means a statement of work separately entered into by the Parties which describes the specific Services as agreed by the Parties from time to time during the Agreement, and which incorporates these Terms and Conditions.
(aa) “Subscription Term” means any initial subscription term (an “Initial Term”) and any renewal subscription term (a “Renewal Term”), each of the duration(s) set out in the Order Form.
(bb) “Usage Package” means any parameters and limitations on Client’s and its Authorised Users’ rights of use and/or the features and functionalities of Share of Search Platform available within Client’s subscription as set out in the Order Form, which may include: (i) limitations on the number of concurrent Authorised Users with active Access Credentials from time to time; (ii) the number of permitted Workspaces; (iii) the applicable Authorised Brand; (iv) the versions of certain Third Party AI Platforms available to Client and its Authorised Users via Share of Search Platform; and/or (v) the number of Analyses and Reports available within that subscription in a specified period.
(cc) “Workspace” means a ‘Workspace’ made available via Share of Search Platform that is allocated to an Authorised Brand for a given Territory (i.e., market, geography or similar), and which is identified in the Order Form.
15.2 The following rules of interpretation shall apply in the Agreement: (a) to the extent not defined in this Section 15 or elsewhere in these 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; (b) any reference to the Agreement terminating shall, where the context requires, include a reference to the Agreement terminating by expiry of the Subscription Term; (c) 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 (d) any reference to the “Parties” means Jellyfish and Client and “Party” shall mean one of them.
15.3 Where applicable, to the extent of any inconsistency or conflict between: (a) any provision(s) of these Terms and Conditions and any provision(s) of the Order Form, the relevant provision(s) of the Order Form shall govern and prevail; or (b) any provision(s) of these Terms and Conditions and any provision(s) of the SOW, the relevant provision(s) of the SOW shall govern and prevail.
AUTHORISATION
IN WITNESS WHEREOF,the Parties hereto have caused these Share of Search™Platform Terms and Conditions to be signed by the duly authorised representatives.
