Terms of Service

Introduction

This Master Services Agreement (the "Agreement") is made available by KOHO AI LTD, an England and Wales corporation with principal offices at 153 Foxhunter Dr, Linford Wood, Milton Keynes MK14 6GD, United Kingdom ("Koho"), to entities (the "Customer") engaging Koho's services. This Agreement sets forth the terms under which the Customer may use the Services provided by Koho.

Services, Work Orders, and Change Orders

Services: Koho agrees to provide the services ("Services") described in the Service Descriptions and any subsequent Work Orders issued under this Agreement. The Services shall be performed in accordance with the terms and conditions set forth herein and any additional terms specified in each Work Order.
Work Orders: The specific details of the Services to be performed, including but not limited to the scope of work, timelines, deliverables, and any special conditions, will be outlined in individual Work Orders. Each Work Order shall be mutually agreed upon in writing by Koho and the Customer and, once executed, shall become a part of this Agreement. Work Orders shall specify the Services to be provided, the fees for such Services, and any other relevant details. Each Work Order shall be subject to the terms of this Agreement unless expressly modified in the Work Order.
Change Orders:The Customer may request changes to the scope of Services described in a Work Order by proposing a change order ("Change Order"). Change Orders must be made in writing and specify the changes requested. Koho will evaluate each Change Order and provide the Customer with a written response, including any adjustments to the fees, timelines, or other terms necessary to accommodate the requested changes. The Change Order shall become effective only upon written acceptance by both Koho and the Customer. If a Change Order causes an increase in the cost of or time required for the performance of the Services, an equitable adjustment to the fees and/or delivery schedule shall be made.

Performance of Services

Performance Standard: Koho shall perform the Services in a professional and workmanlike manner in accordance with generally recognised industry standards for similar services. Koho shall use reasonable efforts to meet the performance dates specified in each Work Order, but such dates shall be estimates only.
Personnel: Koho shall assign qualified personnel to perform the Services. Koho shall ensure that its personnel adhere to the Customer's policies and procedures while on the Customer's premises to the extent such policies and procedures have been communicated to Koho in writing. Koho reserves the right to change or replace any of its personnel assigned to perform the Services, provided that Koho shall maintain the overall quality and efficiency of the Services.
Subcontractors: Koho may use subcontractors to perform certain aspects of the Services. Koho remains responsible for all work performed by its subcontractors to the same extent as if Koho itself had performed the Services. Koho shall ensure that all subcontractors agree to comply with the relevant provisions of this Agreement.
Materials and Equipment: Unless otherwise agreed in a Work Order, Koho shall provide, at its own expense, all materials and equipment necessary to perform the Services. Any materials or equipment provided by the Customer shall remain the property of the Customer, and Koho shall have no right or license to use such materials or equipment except as necessary to perform the Services under this Agreement.

Acceptance of Deliverables

Initial Delivery: Upon completion of any deliverables under a Work Order, Koho will present the deliverables to the Customer for acceptance testing. The deliverable shall be deemed to be delivered when it is made available to the Customer in the agreed-upon format or medium.
Inspection Period: The Customer shall have a period of fifteen (15) business days from the date of delivery to inspect, test, and evaluate the deliverables to determine whether they conform to the specifications set forth in the applicable Work Order.
Acceptance: The deliverables will be considered accepted by the Customer if:
1. the Customer does not provide written notice of rejection within the inspection period; or
2. the Customer uses the deliverables for any operational or commercial purpose.
Acceptance shall not be unreasonably withheld or delayed.
Rejection and Correction: The Customer shall have a period of fifteen (15) business days from the date of delivery to inspect, test, and evaluate the deliverables to determine whether they conform to the specifications set forth in the applicable Work Order.
Failure to Cure: If Koho fails to cure any deficiencies after a reasonable opportunity, the Customer may either (a) terminate the applicable Work Order and receive a refund of any fees paid for the non-conforming deliverables, or (b) accept the deliverables with deficiencies, in which case the parties shall mutually agree on an equitable reduction in the fees.

Third Party Materials

Use of Third Party Materials:Koho may, in the course of performing the Services, incorporate materials, including software, data, and other intellectual property, owned by third parties (“Third Party Materials”).
Sublicensing to Customer: Where Third Party Materials are incorporated into the deliverables provided to the Customer, Koho guarantees that it has obtained the necessary sublicenses to grant the Customer the right to use such Third Party Materials in conjunction with and as part of the deliverables, subject to the terms of this Agreement and any additional restrictions imposed by the third party.
Identification and Terms: Koho shall identify any Third Party Materials used in the deliverables and inform the Customer of any terms of use associated with such materials. The Customer agrees to comply with such terms and conditions.
Indemnification for Third Party Claims: Koho shall indemnify the Customer from any and all claims brought by a third party alleging that the Third Party Materials infringe or misappropriate such third party’s intellectual property rights, provided that the Customer promptly notifies Koho of such claim, allows Koho to control the defence and settlement of the claim, and cooperates with Koho in defending against such claim.
Limitation on Liability: Notwithstanding the above indemnification, Koho's liability for claims related to Third Party Materials that are found to infringe on any third party's intellectual property rights shall be limited to the remedies available from the third party licensor of such materials.

Compensation

Fees: The Customer agrees to pay Koho the fees specified in each Work Order for the Services performed under this Agreement. The fees will be outlined in detail in the Work Order, including any fixed, variable, and/or contingent fees as agreed upon by the parties. Unless otherwise stated in the Work Order, the fees shall cover all of Koho's costs and expenses related to the performance of the Services.
Invoicing and Payment: Koho will invoice the Customer for Services rendered as specified in the Work Order. Each invoice will detail the Services provided and the applicable fees. Unless otherwise specified in a Work Order, invoices shall be issued on a monthly basis and are due and payable within thirty (30) days from the invoice date. The Customer agrees to fully pay all invoiced amounts without offset or deduction. Any disputed charges must be reported to Koho in writing within fifteen (15) days of the invoice date, after which the Customer waives any objection to the invoiced amounts.
Late Payments: Any payment not received by Koho by the due date may accrue, at Koho's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Taxes: The Customer is responsible for all taxes, levies, duties or similar governmental assessments of any nature associated with the Services provided under this Agreement (excluding taxes based on Koho's net income). Koho shall invoice the Customer for such taxes if Koho has the legal obligation to pay or collect taxes for which the Customer is responsible under this clause.

Term and Termination

Term: The Customer agrees to pay Koho the fees specified in each Work Order for the Services performed under this Agreement. The fees will be outlined in detail in the Work Order, including any fixed, variable, and/or contingent fees as agreed upon by the parties. Unless otherwise stated in the Work Order, the fees shall cover all of Koho's costs and expenses related to the performance of the Services.
Termination for Convenience: Koho will invoice the Customer for Services rendered as specified in the Work Order. Each invoice will detail the Services provided and the applicable fees. Unless otherwise specified in a Work Order, invoices shall be issued on a monthly basis and are due and payable within thirty (30) days from the invoice date. The Customer agrees to fully pay all invoiced amounts without offset or deduction. Any disputed charges must be reported to Koho in writing within fifteen (15) days of the invoice date, after which the Customer waives any objection to the invoiced amounts.
Termination for Cause: Any payment not received by Koho by the due date may accrue, at Koho's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Effects of Termination: Upon termination of this Agreement for any reason, the Customer shall pay Koho for all Services performed up to the date of termination that have not yet been paid for. Termination of this Agreement shall not affect any rights or obligations that (a) have accrued prior to the effective date of termination or (b) are intended by their nature to survive termination (including, without limitation, indemnification, warranty, confidentiality, and liability limitations provisions).
Return of Materials: Upon termination, each party shall return or destroy, at the disclosing party's direction, all Confidential Information of the other party in its possession and shall not retain any copies of such information except as required to comply with any applicable legal or accounting record-keeping requirement.
Renewals: Agreements will automatically renew for additional 1 year renewal periods at the commitment volumes and pricing active on the last day of the Subscription Period, unless a party provides the other at least 60 days’ prior written notice of its intention not to renew.

Confidentiality

Definition of Confidential Information: "Confidential Information" encompasses all non-public information shared between the parties during the term of this Agreement, including but not limited to, business operations, company data, product specifications, customer information, and any other data deemed sensitive by either party. This information may be shared in written, oral, electronic, or any other form.
Protection and Use of Confidential Information: Each party agrees to:
1. preserve and protect the confidentiality of the other party's Confidential Information using the same degree of care that it uses to protect its own confidential information of similar nature, but in no event less than reasonable care,
2. refrain from using any Confidential Information of the other party for any purpose outside the scope of this Agreement, and
3. restrict access to Confidential Information to those employees, contractors, and agents who require such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving party.
Exclusions: Confidential Information does not include information that:
1. is or becomes publicly known through no breach of this clause by the receiving party;
2. is received from a third party without breach of any obligation of confidentiality;
3. was independently developed by the receiving party without use of or reference to the other party's Confidential Information, or
4. is required to be disclosed under law, under a court order, or by a governmental authority, provided that the disclosing party gives prompt notice to the other party to enable them to seek a protective order or otherwise prevent such disclosure.
Return or Destruction: Upon termination or expiration of this Agreement, each party will return or destroy all copies of Confidential Information of the other party, at the owning party’s option, except for one copy that may be used solely for the purpose of determining legal obligations under this Agreement.

Ownership

Ownership of Deliverables: All materials, products, inventions, and works of authorship developed by Koho in the course of performing the Services under this Agreement, including but not limited to software, documents, designs, and other tangible or intangible results of the Services (“Deliverables”), shall be the exclusive property of the Customer upon full payment for such Deliverables.
Pre-existing Intellectual Property: Notwithstanding the foregoing, any intellectual property owned by Koho prior to the execution of this Agreement, or developed by Koho independently of the Services provided under this Agreement, shall remain the sole property of Koho. Koho grants the Customer a non-exclusive, royalty-free, worldwide license to use such Koho pre-existing intellectual property solely as necessary to utilise the Deliverables or Services provided under this Agreement.
Third Party Materials: If the provision of Services requires Koho to utilize software, data, or other material owned by third parties (“Third Party Materials”), Koho warrants that it has obtained the appropriate licenses or permissions to use such Third Party Materials and to grant the Customer the rights to use them as part of the Deliverables. The Customer agrees to abide by the terms of any such third-party licenses as related to the Third Party Materials.
Customer Materials: The Customer retains all rights, titles, and interests in and to any data, materials, and information provided by the Customer to Koho for the purpose of enabling Koho to perform the Services (“Customer Materials”). Koho is granted a limited, non-exclusive license to use the Customer Materials solely in connection with the Services provided to the Customer under this Agreement.

Independent Contractor

Relationship: Koho enters into this Agreement as, and shall remain, an independent contractor. Nothing in this Agreement shall be deemed to create a partnership, joint venture, agency, or employer-employee relationship between Koho and the Customer. Koho is not the agent of the Customer and is not authorised to make any representation, contract, or commitment on behalf of the Customer unless specifically requested or authorised in writing to do so by the Customer.
Koho's Personnel: Koho is solely responsible for all wages, costs, and expenses of Koho's personnel and has the exclusive right to hire, pay, discharge, and supervise its personnel. Koho's personnel are not entitled to any benefits from the Customer.
Taxes and Withholdings: As an independent contractor, Koho is solely responsible for all taxes, withholdings, and other statutory, regulatory, and contractual obligations of any sort, including, but not limited to, those relating to income tax, national insurance, social security, employment, and any other taxes or business liabilities in relation to the provision of the Services.

Koho's Representation and Warranties

Authority: Koho represents and warrants that it has the full right, power, and authority to enter into this Agreement, to grant the rights granted herein, and to perform its obligations under this Agreement.
Compliance with Laws: Koho represents and warrants that it will comply with all applicable laws, regulations, and ordinances relating to its provision of the Services, its performance under this Agreement, and any related business activities.
Services: Koho represents and warrants that qualified personnel will perform the Services in a professional and workmanlike manner. Koho further warrants that the Services and any Deliverables provided under this Agreement will conform to the specifications, functions, and descriptions set forth in the relevant Work Order(s).
No Infringement: Koho represents and warrants that the Deliverables, and the Customer's use thereof, will not infringe or misappropriate any intellectual property rights of a third party in the jurisdiction where the Services are provided or the Deliverables are used. Koho agrees to indemnify the Customer against any losses, damages, costs, liabilities, and expenses arising from a breach of this warranty.
Disclaimer: Except for the express warranties set forth in this Agreement, Koho disclaims all other warranties, express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.

Customer's Representation and Warranties

Authority: The Customer represents and warrants that it has the full right, power, and authority to enter into this Agreement, to grant the rights granted herein, and to perform its obligations. The Customer confirms that the execution and delivery of this Agreement and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is otherwise bound.
Compliance with Laws: The Customer represents and warrants that it will comply with all laws, regulations, and ordinances applicable to its activities in relation to this Agreement, including but not limited to the use of the Services and the Deliverables.
Use of Services and Deliverables:The Customer represents and warrants that it will use the Services and Deliverables in accordance with this Agreement and applicable law, and will not use the Services or Deliverables for any unlawful purpose.
Customer Materials:The Customer represents and warrants that it has the necessary rights and permissions to provide Koho with any materials, data, or information (Customer Materials) needed for Koho to perform the Services, and that the use of such Customer Materials by Koho as contemplated by this Agreement will not infringe or violate the rights of any third parties.

Indemnification

By Koho: Koho agrees to indemnify, defend, and hold harmless the Customer, its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of or related to: (a) Koho's breach of any representation, warranty, or obligation under this Agreement; (b) the negligence or willful misconduct of Koho or its employees or agents; (c) the infringement of third-party intellectual property rights by the Deliverables (except to the extent such infringement arises from Customer Materials or modifications to the Deliverables by or on behalf of the Customer).
By Customer:The Customer agrees to indemnify, defend, and hold harmless Koho, its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of or related to: (a) Customer's breach of any representation, warranty, or obligation under this Agreement; (b) the negligence or willful misconduct of the Customer or its employees or agents; (c) the use of the Services or Deliverables in violation of this Agreement or applicable law; (d) infringement of third-party intellectual property rights by the Customer Materials.
Indemnification Process:The party seeking indemnification (Indemnitee) shall promptly notify the indemnifying party (Indemnitor) in writing of any claim, cooperate with the Indemnitor in defending the claim, and allow the Indemnitor to control the defence and settlement of the claim. The Indemnitee may defend the claim at its own expense with counsel of its choice.
Customer Materials:The Customer represents and warrants that it has the necessary rights and permissions to provide Koho with any materials, data, or information (Customer Materials) needed for Koho to perform the Services, and that the use of such Customer Materials by Koho as contemplated by this Agreement will not infringe or violate the rights of any third parties.

Limitation of Liability

Limitation on Direct Damages:Notwithstanding any other provision of this Agreement, neither party shall be liable to the other for any direct damages exceeding the amount paid or payable by the Customer to Koho under the Agreement during the twelve (12) months preceding the claim.
Exclusion of Indirect Damages:In no event will either party be liable to the other for any indirect, incidental, consequential, special, or exemplary damages, including but not limited to loss of profits, loss of data, or interruption of business, arising out of or in connection with this Agreement, regardless of whether such damages were foreseeable and whether or not the party has been advised of the possibility of such damages.
Exceptions:The limitations set forth in Sections 13.1 and 13.2 shall not apply to breaches of confidentiality obligations, indemnification obligations, or liabilities arising from gross negligence or willful misconduct, or as otherwise prohibited by applicable law.
Acknowledgement:Both parties acknowledge that the limitations of liability set forth in this clause have been negotiated and agreed upon in reliance upon the allocation of risk between the parties, including without limitation, the mutual waiver and limitation of liability set forth herein.

Customer Data

Definition:For the purposes of this Agreement, "Customer Data" means any data provided by the Customer to Koho in connection with the Services that identifies or can reasonably be used to identify the Customer or any individual.
Ownership and Use: The Customer retains all rights, titles, and interests in and to the Customer Data. Koho acknowledges that it has no ownership rights in or to the Customer Data. Koho shall use the Customer Data solely for the purpose of providing the Services under this Agreement and shall not use the Customer Data for any other purpose without the prior written consent of the Customer. Notwithstanding the foregoing, Koho may use Anonymized Data for internal purposes such as benchmarking, statistical modeling, machine learning, and research, provided that such use complies with applicable laws and does not result in the disclosure of Customer Data.
Protection and Security:Koho agrees to implement reasonable and appropriate measures designed to secure Customer Data from unauthorized access, use, alteration, or disclosure. Furthermore, Koho shall comply with all applicable laws and regulations regarding the protection of personal data.
Data Breach Notification:In the event of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, Koho shall promptly notify the Customer of such breach and shall cooperate with the Customer to remediate the breach as quickly as possible.
Return or Destruction of Data:Upon termination or expiration of this Agreement, Koho shall, at the Customer's option, return all Customer Data to the Customer or destroy all copies of Customer Data in its possession or control, and certify in writing to the Customer that it has complied with this requirement

Dispute Resolution

Negotiation:In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, the parties agree to attempt in good faith to resolve the dispute informally through negotiation. This process should commence through written notice from one party to the other, detailing the nature of the dispute and the proposed resolution.
Mediation: If the dispute cannot be resolved through negotiation within thirty (30) days of the notice, the parties agree to engage in mediation before a mutually agreed upon mediator in an effort to resolve the dispute without recourse to litigation.
Arbitration:If mediation does not successfully resolve the dispute, the parties agree to submit the dispute to binding arbitration. The arbitration shall be conducted either virtually or in person at a location mutually agreed upon by the parties, in accordance with the Arbitration Rules of the London Court of International Arbitration (LCIA) by one arbitrator appointed in accordance with said rules. The arbitration proceedings shall be conducted in the English language.
Enforcement of Award:The decision or award resulting from arbitration shall be final and binding upon the parties, and judgment upon the award may be entered in any court having jurisdiction thereof.
Costs:Each party shall bear its own costs related to the dispute resolution process, and the costs of arbitration and the arbitrator's fees shall be shared equally by the parties unless the arbitrator decides otherwise based on the circumstances and merits of the case.
Continuation of Services:Notwithstanding the existence of a dispute, the parties agree that they will continue to perform their respective obligations under this Agreement while the dispute is being resolved.

General Provisions

Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.
Amendment:No amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
Severability:If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Assignment:Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
Force Majeure:Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement due to circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, terrorism, strikes, or governmental actions.
Notices: All notices under this Agreement must be in writing and will be deemed given when:
1. delivered personally;
2. sent by confirmed email;
3. three days after being sent by postal mail;
4. the next business day after being sent by express courier, to the addresses set forth in the Agreement or such other address as may be specified in writing.
Governing Law:This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of England and Wales, without giving effect to any choice or conflict of law provision.
Counterparts:This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.