1 Product:
1.1 Description: Product means FocalX’s centrally operated machine learning enabled software product constituted in the form of Machine Learning as a Services (“MLaaS”) delivered on a software as a service basis (“SaaS”). Product is hosted on infrastructure controlled by FocalX, but where such infrastructure includes third party assets, data centres, and cloud hosting services.
1.2 Product performs inference, analytical processing, learning, and model-based analytics exclusively within FocalX’s server-side environment and is not deployed to, executed on, or operated within Company Systems, vehicles, devices, or infrastructure.
1.3 Product includes all related backend services, platforms, machine learning models, analytical logic, software components, Access Tools, documentation, and Background IP through which Services are rendered by FocalX.
1.4 Access to the Product is made available through FocalX-provided Interfaces and Access Tools, solely for the purpose of submitting inputs to, and receiving Outputs generated by, the Product.
1.5 Interfaces and Access Tools are provided solely as access and integration mechanisms to enable Company to interact with the Product and obtain Outputs, and do not constitute independent software products, separately licensable software, or standalone Services. Interfaces and Access Tools enable the transmission of requests to, and receipt of Outputs from, Services and do not themselves perform analytical processing, inference, or machine-learning operations.
1.6 It is clarified that the Product does not involve the transfer, licensing, delivery, or installation of any machine learning system, analytical software, or executable code to Company, and is accessed solely through FocalX-provided Interfaces and Access Tools. Company acknowledges that no deployment, licensing or transfer of any software shall take place into Company’s Systems or environment except in accordance with an appropriate SoW executed in connection with any Custom Development Services that Company may require FocalX to provide for integration of the Access Tools within Company’s Systems.
2 Services:
2.1 Services refer to the software-based functionalities provided by FocalX and delivered through the means of the Product, in accordance with the scope specified herein. The generation of analytical reports, inspection reports, analytics, and other Outputs constitutes the core functionality of Services, which are performed exclusively within FocalX’s backend infrastructure.
2.2 The Services are provided in a hosted, centrally operated environment and are made available remotely to Company. Company acknowledges that the Product, Interfaces, or Access Tools (“FocalX Offering”) may be modified, enhanced, updated, or reconfigured by FocalX from time to time in the ordinary course of service improvement, security enhancement, performance optimisation, or regulatory alignment, or for any other reason at the discretion of FocalX. Any such changes shall not be deemed to materially reduce the core functionality of Services as described herein. FocalX accepts and agrees that upon such updation, the updated functionalities shall immediately become part of the FocalX Offering. FocalX shall intimate such changes through digital notifications sent through the Product itself, and Company accepts that it shall be Company’s sole responsibility to voluntarily undertake review of the impact that is caused on Company’s receipt of Services, and accordingly bring any such impact to FocalX’s notice. Where any on-site support may be required, such requirements shall be mutually determined between the Parties pursuant to which any on-site services may be provided additional as per prior mutual agreement in writing (emails permitted).
2.3 Any statements, descriptions, claims, or representations made in marketing materials, websites, presentations, or promotional content (including references to Services as “AI-powered” or similar descriptors) are provided for general informational and promotional purposes only and shall not be construed as defining, expanding, or modifying the scope, functionality, performance standards, or legal characterisation of Services under the Agreement.
2.4 The Services are designed to support automated and semi-automated vehicle inspection workflows focused on visual assessment of vehicle exteriors, including the capture, identification, and presentation of potential conditions, defects, or anomalies observable from exterior body surfaces through multi-angle imaging, including front, rear, side-panel, and quarter-angle (“Beauty Shot”) views. The Services may also facilitate the capture and presentation of visual images of vehicle interior areas such as seats, dashboards, and floor panels, to the extent such images are obtained through non-intrusive visual means, and without performing any structural, mechanical, or underbody inspection.
2.5 It is clarified that Services do not perform underbody inspections, mechanical inspections, structural assessments, or any form of diagnostic, safety-critical, or regulatory testing of vehicles. It is hereby declared that Services are not intended to replace statutory inspections, certified surveys, or professional assessments required under Applicable Laws.
2.6 The Services further facilitate inspection processes and generate reports, analytics, and related Outputs for vehicle inspection and Company’s management purposes.
2.7 The Services provide decision-support functionality only and do not perform automated decision-making, certification, authorization, or clearance functions, nor do they replace human judgment, independent assessment, or regulatory compliance obligations applicable to Company.
2.8 It is clarified that Interfaces and Access Tools are provided solely as mechanisms to access Services and are not themselves Services.
3 DISCLAIMERS
3.1 No Advice for Company Systems: Company Systems shall not be deemed to form part of FocalX Offering, and FocalX shall have no responsibility for the operation, security, availability, or compliance of any Company Systems or any obligation to advise or guide in connection with the foregoing or any other aspect relating to Company’s Systems.
3.2 Informational Purposes only: Company acknowledges and agrees that all Outputs are provided solely for general informational purposes, with the decisions to be made entirely by Company solely and exclusively without any reliance, dependency or contingency on anything related to FocalX Offering or the Outputs. Descriptions of features or functionality published on FocalX’s websites or applications are provided for informational purposes only and do not constitute binding representations or any warranties regarding regulatory classification, performance outcomes, or legal suitability.
3.3 No Implied Advisory or Substitution of Decision Making: There is nothing that would be provided by way of Outputs that may constitute any advice with respect to vehicular safety, roadworthiness, compliance, condition, fitness for use, or suitability for operations. It is clarified that Outputs do not constitute determinations, certifications, approvals, guarantees, warranties, representations, or professional advice of any kind, and FocalX does not warrant or give any guarantees against replacement by Outputs of independent assessment, inspection, verification, or human judgment, which shall always be the discretion of Company.
3.4 No Guaranteed Accuracy: FocalX does not make, and expressly disclaims, any warranty or representation that the Outputs are complete, accurate, error-free, conclusive, or suitable to be relied upon as the sole or primary basis for any operational, commercial, regulatory, safety-critical, or risk-bearing decision. Output may depend on factors external to the Services including such factors as lighting and weather conditions.
3.5 No Attribution: Any decision taken by Company or any third party based on or in connection with the Outputs, including decisions to permit vehicle operation, certify vehicle condition, approve logistics movement, accept or reject insurance claims, or continue fleet deployment, shall be taken entirely at Company’s independent discretion, risk, and responsibility, and shall not be attributed to FocalX or Services.
3.6 No Reliance: Company further acknowledges and confirms that there is nothing stated, written, depicted, represented, implied, or otherwise communicated directly or indirectly by FocalX anywhere (including the Agreement) that would reasonably cause Company to infer upon the Outputs as determinative, binding, or sufficient for decision-making without independent assessment, verification, and human judgment.
4 USAGE LIMITATIONS
Company expressly acknowledges that:
4.1 the Outputs are positioned and provided as informational and non-determinative in nature;
4.2 the limitations, assumptions, and constraints applicable to the Outputs have been disclosed through documentation, Interfaces, or through the provisions of the Agreement, and that there is no further or residual obligation remaining upon FocalX for making any further disclosures;
4.3 Company is solely responsible for determining the extent to which any Output is appropriate for use in any specific context and that nothing has been stated or indicated directly or indirectly by FocalX to suggest appropriateness or suitability of any Output for any specific or general use purposes;
4.4 Company shall be solely responsible for activating, using or relying upon any optional security features provided as part of FocalX Offering;
4.5 Company shall be solely responsible for securing and maintaining login and access credentials and any consequence arising in connection with such misuse thereof shall be deemed to be Company’s liability;
4.6 Company is expected to apply human review, independent judgment, and, where appropriate, additional inspection or verification prior to acting on any Output;
4.7 the reasonableness of any Output is dependent on the quality, completeness, and accuracy of the inputs provided or conditions prevailing at the time of generation;
4.8 FocalX Offering is meant for internal use only and any direct to consumer, retail, or reseller usage is strictly prohibited unless FocalX’s prior mutual agreement is specified in writing and executed between Parties for enabling any commercial or business usage;
4.9 FocalX Offering made to Company under the Agreement is made solely and exclusively to Company without any reference to any of its sister companies, group companies, affiliates, subsidiaries or any other related company, which shall be considered as third parties to the Agreement, under all circumstances, unless specifically waived otherwise by FocalX to the contrary; and
4.10 Customer shall be enabled to use the Product by means of authorized accounts that shall be activated for select employees of Customer only (“authorized users”), and not intended for common usage across enterprise.
5 AVAILABILITY
Subject to the provisions of any Service Level Agreements executed in a respective SoW, FocalX shall be responsible for hosting the Product at data centres with high-speed connectivity and full network redundancy, physical as well as network security, and shall use all reasonable efforts to ensure that the Product shall be in an active and stable position so that Services are continuously rendered to Company on 24/7 365 days basis, without any interruption provided that some scheduled and emergency maintenance downtime may occasionally be required. FocalX shall use all reasonable efforts to ensure that the scheduled and emergency maintenance is kept to the professional standards and, where possible, scheduled downtime shall be completed outside of normal working hours. In the event of emergency downtime being necessary, FocalX shall use all reasonable effort to restore the servers hosting the Product as soon as possible.
6. CHANGE MANAGEMENT: For Custom Development including any SDK/API Integration, the change management process provided hereinafter shall be applicable.
6.1 Company may propose modifications to the scope, specifications, functionality, integration architecture, deliverables, or implementation of Services, including any modifications relating to the integration, configuration, enhancement, or use of any software development kits (SDKs), application programming interfaces (APIs), interfaces, or related components (each, a “Change Request”).
6.2 All Change Requests shall be submitted in writing as per the Change Order Form and shall contain reasonable details describing the proposed change, including the technical requirements, the purpose of the change, and any anticipated impact on Services or Deliverables.
6.3 Upon receipt of a Change Request, FocalX shall evaluate the proposed change and determine the potential impact of such Change Request on Services, including but not limited to: (i) technical feasibility; (ii) the effort required to implement the change; (iii) dependencies involving SDKs, APIs, or third-party systems; (iv) impact on system architecture, interoperability, performance, or security; (v) impact on development timelines, milestones, or delivery schedules; and (vi) any adjustments required in commercial terms. FocalX shall communicate the outcome of such evaluation to Company in writing within a reasonable time.
6.4 If Parties agree to implement a Change Request, Parties shall document the agreed modifications in a written Change Order executed by authorised representatives of both Parties. No Change Request shall be binding or implemented unless and until a Change Order has been mutually executed by Parties. Until a Change Order has been executed, FocalX shall continue to perform Services strictly in accordance with the existing agreed scope and specifications.
6.5 Where a Change Request arises due to updates, deprecations, version changes, restrictions, or technical limitations imposed by any third-party SDK, API, platform, or external system upon which Services depend, FocalX shall notify Company promptly. Parties shall then determine whether such change requires a Change Request and Change Order under this clause.
6.6 Any additional development effort, reconfiguration, or remediation required as a result of such third-party changes may be subject to additional fees and revised timelines. Such additional development effort required may be undertaken through appropriate Change Order Form executed in this regard.
6.7 Notwithstanding the foregoing, FocalX may implement urgent changes without prior approval where such changes are reasonably necessary to address: (i) security vulnerabilities or threats; (ii) system failures or operational risks; (iii) compatibility issues arising from SDK/API dependencies; or (iv) compliance with Applicable Laws. FocalX shall notify Company of such emergency changes as soon as reasonably practicable. Where such changes materially affect scope, functionality, timelines, or fees, Parties shall subsequently document such modifications through a Change Order Form.
7. EXCLUSIONS FROM SCOPE OF SERVICES:
Without limitation, the following are expressly excluded from the Scope of Services and shall not constitute a failure of Services or a breach of any service level, warranty, or obligation:
7.1 any failure, defect, unavailability, or performance issue relating to Company Systems;
7.2 any bug, error, incompatibility, or malfunction in an SDK, WebSDK, or Company-implemented API integration;
7.3 any interface issue, display error, latency, or rendering problem at the end of Company Systems or Company’s users;
7.4 any failure attributable to Company Systems, customer infrastructure, or third-party software or services; or
7.5 any incorrect or incomplete interpretation of Outputs by Company.
8. COLLECTION AND OPERATIONAL INFORMATION
8.1 Company acknowledges and agrees that FocalX may collect, access, record and analyse operational and system-generated logs, metadata, telemetry, diagnostics and other technical information generated through Company’s access to or use of the Services (collectively, “Operational Logs”) for the purposes of: (i) monitoring and measuring usage of the Services, including determining the number of inspections performed, API calls, SDK activity, transaction volumes and other usage metrics; (ii) verifying compliance with the Agreement, including any usage limits; (iii) administering billing and invoicing; (iv) maintaining, securing, troubleshooting, supporting and improving the Services; (v) investigating technical incidents, software errors, API or SDK failures, system crashes, performance issues or suspected misuse; and (vi) analysing operational workflows and implementation of the Services.
8.2 Company shall maintain, or procure the maintenance of, such Operational Logs and other reasonable operational records relating to Company’s use of the Services as may be necessary to support the foregoing purposes, including usage reports, process documentation, implementation records, crash logs, API or SDK diagnostic information, transaction records and other relevant technical or operational information reasonably requested by FocalX. Operational Logs maintained by FocalX shall constitute prima facie evidence of Company’s usage of the Services, without prejudice to either Party’s right to rely upon additional records or information to verify actual usage.
STANDARD TERMS
1. DEFINITIONS & INTERPRETATIONS
1.1 “Access Tools” means the APIs, SDKs, WebSDKs, authentication mechanisms, libraries, and related integration components provided by FocalX solely to facilitate technical access to Services and the retrieval of Outputs by Company Systems.
1.2 “Applicable Laws” shall mean any applicable national, foreign, local law including all applicable statutes, regulations, rules, treaties, mandatory policies, codes or practice and/or conduct, notifications, byelaws, directives, guidelines, judgments, judicial orders, and/or decrees, guidances, decisions, requirements imposed by law or any Authorities, or any self-regulating body. A reference to Applicable Laws shall be deemed to include all local regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them that are applicable on a respective Party. It is clarified that Applicable Laws shall always be interpreted in connection with applicability of a Party in connection with the Party’s nexus with the jurisdiction coming under such Applicable Laws.
1.3 “Agreement” shall mean (i) this agreement along with all its contents herein, including the Main Terms, Commercial Terms, Schedules, Standard Terms, and recitals, and SoWs that are executed from time to time; (ii) any addendums or amendment agreements executed to amend the Agreement; and (iii) any written email agreement formed between Parties for any matter for which any provision of the Agreement expressly allows Parties to so conclude. All the foregoing components aforementioned shall be considered as an integral part and parcel of the Agreement and any reference to ‘Agreement’ herein or on email concerning the subject matter comprised hereof shall include the Agreement ‘as is’ comprised of all the components aforementioned.
1.4 “Authorities” shall mean (i) any national, state, city, municipal, or local government, governmental authority, government department or administrative subdivision thereof; (ii) any agency or instrumentality of any of the authorities referred to in (i) above; (iii) any self-regulating authority or agency, quasi-governmental authority, commission, board, central bank or other entity; (iv) any non-governmental regulatory or administrative authority, body or other organization, to the extent that the rules, regulations, standards, requirements, procedures or orders of such authority, body or other organization have the force of law; (v) any arbitrator, court or tribunal of competent jurisdiction; or (vi) any third party entity involved in providing any NoCs, licenses or permissions in connection with the subject matter of the Agreement.
1.5 “APIs” or “Application Programming Interfaces” means all application programming interfaces, including without limitation software interfaces, connectors, libraries, protocols, middleware, plug-ins, routines, functions, specifications, technical documentation, related data, and all modifications, enhancements, updates, upgrades, derivative works, adaptations, improvements, and revisions thereto, that enable or facilitate interaction, communication, interoperability, or integration between the Product and Company’s Systems for the purposes of securely transmitting outputs to, and receiving requests from such Company’s systems via Services over the internet.
1.6 “Business Day” shall mean a day other than a Sunday or any other day that is a full bank holiday in Copenhagen, Denmark.
1.7 “Background Intellectual Property”/“Background IP” means all know-how, methodologies, processes, tools, software, code (including source code and object code), libraries, frameworks, Interfaces, Access Tools, APIs, documentation, specifications, inventions, discoveries, works of authorship, data sets, models, algorithms, architectures, workflows, techniques, trade secrets, confidential information, databases, and other materials, in whatever form or medium (i) owned by, licensed to, or otherwise lawfully controlled by FocalX prior to the Effective Date; or (ii) developed, conceived, or reduced to practice by or on behalf of FocalX independently of the Agreement, whether before or after the Effective Date; which are not developed specifically for Company under the Agreement or that which are not specifically assigned or transferred to Company under this or any other agreement but which may be used, incorporated, embedded, referenced, relied upon, or otherwise utilised by FocalX or Company in connection with or in the course of providing, accessing, or using Services or the Product.
1.8 “Confidential Information” shall include, but is not limited to trade secrets, ideas, patents pending, processes, computer programmes source codes, sources of supplies, technology, research, know-how, improvements, discoveries, developments, designs, inventions, techniques, marketing plans, business information, forecasts, new product information, unpublished financial statements, budgets, business plans, projections, prices, costs, customer lists, marketing information and confidential information disclosed in writing, orally or otherwise by either of the Party to the other Party to the Agreement. Confidential information shall not include (i) information that becomes generally known or available in the public domain through no act or failure to act on the part of either Party; (ii) information that is independently known by the Party receiving such information as evidenced by its written and dated records; (iii) information that is hereafter obtained from a third party who was legally entitled to possess and disclose such Confidential Information; (iv) information that is the subject matter of any request by any authority, police, any government official (central, state or municipal) or any other department or organization dispensing executive functions for the government; or (v) information that is the subject of written permission to disclose provided by the Party disclosing the information.
1.9 “Company’s Systems” means Company’s own front-end applications, user interfaces, websites, mobile applications, dashboards, software systems, and related infrastructure that are used solely to receive, display, store, or further process outputs, data, reports, or results generated through Services.
1.10 “Customer Data” means Company’s own front-end applications, user interfaces, websites, mobile applications, dashboards, software systems, and related infrastructure that are used solely to receive, display, store, or further process outputs, data, reports, or results generated through Services.
1.11 “Custom Development” means on-demand software development, coding, or SDK/API integration for accommodating Company’s Systems within Company’s Systems or software operating environments to ensure a seamless and continuous flow of Services that enables Company’s Systems to deliver services onward.
1.12 “Deliverables” means the software product(s), Source Code, Object Code, APIs, SDKs, documentation, training data, integration guides, user manuals, technical manuals, and all other items or materials to be designed, developed, delivered and/or deployed by FocalX for provision of the Services.
1.13 “Developments” means all results, code, documentation, configurations, integrations, models, and other work products created under the Agreement and includes all the Deliverables.
1.14 “Development Fee” means the services fees for undertaking Custom Development Services pursuant to respective SoW. “Additional Development Fee” means the additional services fees chargeable for additional development services rendered pursuant to respective Change Order Form.
1.15 “Downtime Month” means a month of Services subscribed and utilized by Company, but during which period, Services suffer Unscheduled Downtime more than 3% for that month.
1.16 “Emergency Maintenance” means any unplanned maintenance, repair, patch, or remedial activity performed by or on behalf of FocalX without prior notice, where FocalX reasonably determines that such action is necessary to: (i) address or remediate a security vulnerability, cyber incident, or data integrity risk; (ii) prevent or mitigate an imminent risk to the stability, availability, or performance of Services; (iii) comply with Applicable Law, regulatory requirements, or binding governmental orders; or (iv) avoid or minimize material harm to FocalX, Company, or other users of Services.
1.17 “Excluded Causes” means any event or circumstance that results in unavailability, degradation, or interruption of Services and that is not within the reasonable control of FocalX, including, without limitation: (i) Scheduled Maintenance and Emergency Maintenance carried out in accordance with the Agreement; (ii) failures, outages, delays, or unavailability caused by third-party service providers, including hosting providers, cloud infrastructure providers, internet service providers, telecommunications networks, data centers, content delivery networks, or utilities; (iii) acts or omissions of Company or Company’s registered users, including misuse of Services, failure to follow documentation or training material, negligent acts, unauthorized access, credential sharing, or configuration errors within Company’s Systems and environments; (iv) failures of Company’s Systems, hardware, software, networks, browsers, or devices, or incompatibility between Services and any third-party software, integrations, or APIs not expressly approved by FocalX; (v) Force Majeure Event; (vi) cyber incidents, including distributed denial-of-service (DDoS) attacks, malware, ransomware, or other malicious acts, except to the extent directly caused by FocalX’s failure to implement commercially reasonable security measures; (vii) suspension or limitation of Services in accordance with the Agreement, including for security reasons, legal compliance, non-payment, or suspected violation of Applicable Law or third-party rights; and (viii) failures or delays caused by beta features, trial features, proof-of-concept deployments, or non-production environments, where expressly identified as such.
1.18 “Force Majeure Event” means and includes acts of God, pandemic, epidemic, situations of lockdown/ quarantine, war or terrorist activity, accident, fire, strike, riot, civil disturbance, act of public enemy, any consequences of any law, or change in law, that makes the performance of either Party’s obligations difficult, failure of supplies and facilities, electricity or other public utilities, inability to obtain visas, permits or other governmental licenses, any other event that interrupts completion of the Product, or any of either Party’s obligations hereunder, and includes such other cause not reasonably within either Party’s control or which neither Party could avoid even after application of reasonable diligence, provided that any incident of Force Majeure Event shall not be considered to be so, if such incident arises out of the affected Party’s own negligence, misconducts, or legal non-compliances.
1.19 “Holidays” means the non-working days for FocalX and which shall be as specified in the calendar intimated by FocalX.
1.20 “Intellectual Property/IP” means and includes, without limitation: (i) all copyrights and neighbouring rights (including in source code, object code, scripts, APIs, software architecture, databases, user interfaces, documentation, training materials, compilations, and derivative works); (ii) all trademarks, service marks, trade names, logos, titles, domain names, trade dress, goodwill, and reputation; (iii) all patents, patentable subject matter, utility models, registered designs, layout designs, and design rights, whether registered or registrable; (iv) all trade secrets, confidential information, proprietary algorithms, models, workflows, system logic, methods, processes, know-how, technical data, business rules, specifications, configurations, analytics, and performance data; (v) all rights of privacy, personality, publicity, promotions, and associated commercial exploitation rights to the extent embodied in, generated by, or connected with the Services; (vi) all licences, permissions, approvals, authorisations, and contractual or statutory rights subsisting in or relating to any of the foregoing; (vii) whether such rights are registered, unregistered, registrable, or capable of protection under Applicable Law, and including all applications, continuations, divisions, extensions, renewals, reissues, and revivals thereof; and (viii) existing now or in the future (includes Background IP), subsisting anywhere in the world, for the full term of protection thereof, without any limitation, reservation, holdback, or condition, unless expressly stated otherwise in the Agreement. It is expressly clarified that Parties intend this definition to be of the widest possible scope, and that the rules of ejusdem generis, noscitur a sociis, or any other principle of restrictive interpretation shall not apply to limit or construe the scope of Intellectual Property as used herein.
1.21 “IP Rights” includes all rights, titles, interests existing in connection with IP, for perpetuity, without any limitations, reservations, holdbacks, or conditions existing anywhere in the entire Territory, unless otherwise specifically stated to the contrary. A reference to IP Rights includes (i) all economic rights of utilization in any form, in any manner, across any media including all rights to receive royalties in connection with utilization of Developments; (ii) all rights to create and utilize any reproductions, adaptations, derivatives, and modifications; (iii) rights to assign or sub-license; (iv) all editorial and promotional rights. It is clarified that Parties do not intend to limit the scope of IP Rights in any manner, and the application of rule of ejusdem generis, or noscitur a sociis is expressly excluded.
1.22 “Interfaces” means FocalX-provided digital points of interaction, including user interfaces, dashboards, portals, mobile apps, and visual presentation layers, through which Company may view, retrieve, or interact with Outputs generated by Services.
1.23 “Object Code” means the machine-readable, compiled, assembled, or otherwise executable version of the Source Code of the Product and Developments, including without limitation all binaries, executables, machine instructions, libraries, compiled scripts, runtime environments, installers, and any related documentation, and all modifications, enhancements, updates, upgrades, derivative works, adaptations, improvements, and revisions thereto, in any format or medium, whether now known or hereafter developed.
1.24 “Outputs” means any and all outputs, reports, data sets, analytics, scores, indicators, images, videos, classifications, annotations, summaries, alerts, visualizations, metadata, logs, or other results that are generated, processed, derived, displayed, transmitted, or otherwise made available to Company via Services. Outputs are generated based on inputs, system configurations, and operational conditions at the time of processing and are provided solely in informational form.
1.25 “Permitted Downtime” means any period during which Services are unavailable or materially degraded, excluding Unscheduled Downtime, and shall include, (i) downtime arising from Excluded Causes; and (ii) downtime resulting from individual periods of non-availability lasting less than five (5) consecutive minutes, provided that such periods are not aggregated for the purposes of calculating Unscheduled Downtime.
1.26 “Product” primarily means Machine Learning as a Services (“MLaaS”) that is primarily hosted on FocalX owned/controlled servers for carrying out inference, learning, and model-based analytics all conducted at FocalX’s servers, and all associated services, IP, platform, APIs, SDKs and all associated documentation through the means of which Services are rendered by FocalX.
1.27 “Scheduled Maintenance” means planned maintenance, updates, upgrades, patches, or other routine service activities performed by or on behalf of FocalX that may result in temporary unavailability or degradation of Services, provided that: such maintenance is carried out during maintenance windows notified to Company with sufficiently advance notice.
1.28 “Services” shall mean the back-end services to be rendered by FocalX, together with all related duties, obligations, and responsibilities expressly specified in the Agreement and provided at Schedule – IV (Scope of Services), and shall also include such other similarly back-end services, functions, duties, or obligations as may be agreed pursuant to the execution of respective SoW, to the extent expressly set out therein.
1.29 “Service Extension” means the sole and exclusive remedy available to Company for any Unscheduled Downtime, by which Company shall be entitled to enjoy Services free of any Subscription Fees for such number of days as specified in the Agreement.
1.30 “Software Development Kits/SDKs” means the software libraries, tools, sample code, documentation, and interface components provided by FocalX solely to facilitate integration of the Product into Company Systems.
1.31 “SoW” shall refer to a Statement of Work, which shall be a record of the commercials agreed between Parties along with other terms and conditions that may be specified therein, and executed from time to time in respect of different requirements for Services.
1.32 “Subscription Fees” means the recurring fee payable by Company in advance for access to and use of Services in accordance with the Agreement. The Subscription Fee is payable irrespective of Company’s actual level of usage during such period, and irrespective of any Service Extensions.
1.33 “Subscription Month” means a calendar month during which Company avails of FocalX’s Services.
1.34 “Territory” shall mean the territory of the entire universe.
1.35 “Unscheduled Downtime” means any consecutive period during which Services are unavailable or materially degraded other than Permitted Downtime. It is clarified that Unscheduled Downtime includes only those periods of unavailability that are attributable to FocalX’s failure to operate or maintain Services in accordance with the Agreement.
1.36 “Uptime” means the percentage of time, measured over the applicable period, viz., one (01) month of Company’s subscription to Services, during which period, Services are operational, used and accessed by Company’s users registered with FocalX, and excludes Permitted Downtime. The Uptime status shall be visible to Company on the dashboard facilitated as part of FocalX’s Interface.
1.37 The headings are for convenience only and shall not affect the interpretation of the Agreement.
1.38 Where any count of days is prescribed in the Agreement, such count shall run from the first day post-facto.
1.39 The definitions ascribed to terms in the Agreement apply equally to both the singular and plural forms of such terms. The terms “include”, “including,” “inter alia” “are inclusive of” and similar expressions shall be construed as if followed by the words “without limitation”. The terms “herein”, “hereof”, “hereto”, “hereunder” refer to the Agreement as a whole. Reference to any ‘person’ denotes all legal persons including bodies corporate, unincorporated associations of persons and individuals. the terms “notice”, “notified”, “notification” etc. shall denote a written notice issued in accordance with provisions of the Agreement.
1.40 References to any, document or agreement, including the Agreement, shall be deemed to include any references to such document or agreement as amended, supplemented or replaced from time to time in accordance with its terms and (where applicable) subject to compliance with the requirements set forth therein and herein.
References to Applicable Law (includes statutes, rules, regulations, guidelines by any local, state or central authority, or any trade association rules) shall be deemed to include regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.
1.41 References to any Party to the Agreement or any other document or arrangement includes that Party’s (as applicable) legal heirs, executors, administrators, substitutes, successors and permitted assigns.
In the event of any conflict between the Main Terms and the Standard Terms, the Main Terms shall prevail. In the event of any conflict between the Standard Terms and any contents of the Schedule, the contents of the Schedule shall prevail. To the best possible extent, any inconsistency between any parts of the Agreement shall be resolved by Parties on a good faith basis through a harmonious interpretation of all the Parts. In the event of any conflict between the provisions of the Agreement and a SoW, the provisions of the Agreement shall prevail.
2 NO ACCESS
2.1 Hosted, Access-Only Delivery: Product is provided to Company solely as a hosted, remote service. Company’s rights are limited to the non-exclusive, non-transferable, revocable right to access and use the Product in object/functional form solely for Company’s internal business purposes and in accordance with the Agreement.
2.2 Absolute No Source-Code Access: Company shall not (and shall procure that its personnel and affiliates shall not) obtain, request, demand, or otherwise attempt to access, copy, modify, reverse engineer, decompile, disassemble, translate, or derive the source code, underlying algorithms, data structures, models, system designs, configuration files, development environments, repositories, build pipelines, or internal documentation of the Product (“Source Materials”).
2.3 No Local Hosting / No Extraction: Company shall not (and shall procure that its personnel and affiliates shall not) host, install, run a local copy of, replicate, containerize, snapshot, scrape, persist systematically, or otherwise extract any portion of the Product (including client-side assets) beyond normal use.
2.4 Limited Use Only: Company acknowledges that any client-side assets delivered or made accessible as part of the Product (including without limitation HTML, CSS, JavaScript, or similar artifacts) are provided solely to enable execution in the ordinary end-user runtime only and for no other purpose. Company shall not treat those assets as Source Materials, shall not reconstruct server logic from them, and shall not attempt to compile them into server-side components.
2.5 No Reverse Engineering: Company shall not, and shall ensure its personnel do not, attempt to infer, reproduce, or approximate FocalX’s IP by means of: (i) reverse engineering, decompilation or disassembly; (ii) bulk observation of Product outputs combined with automated probing (including black-box model extraction techniques); (iii) systematic fuzzing, scraping, or automated API probing beyond normal integration; (iv) using client-side assets as source materials, specifications, training data, or reference inputs for the development of competing, substitutive, or functionally similar products or services; or (v) any other method intended to reconstruct code, models, pipelines, or training data.
2.6 Security & Access Controls: Company shall use only FocalX-authorised credentials and access methods and shall not share access credentials with third parties except as expressly permitted in the Agreement. Company shall comply with FocalX’s published security and access policies and any technical limits, including rate limits and monitoring, and shall not attempt to circumvent or defeat those measures.
2.7 Audit & Forensic Cooperation: If FocalX reasonably suspects misuse, unauthorised access, breach, or violation of the foregoing, Company shall promptly cooperate with FocalX’s reasonable investigation, including furnishing logs, records, and other information (subject to Applicable Laws). Such cooperation shall be without prejudice to FocalX’s right to seek injunctive relief.
2.8 Regulatory Compulsions: If a competent judicial or regulatory authority orders Company to provide access to Source Materials, Company may comply only to the extent compelled and only after: (i) where permitted, giving FocalX prior written notice and a reasonable opportunity to defend or seek confidentiality; and (ii) taking reasonable steps to limit scope, obtain protective orders, and preserve FocalX’s IP. Nothing in this clause obliges Company to proactively provide Source Materials to the Authorities requesting disclosure in connection with any regulatory audit or inquiry; FocalX may require separate compensation, confidentiality and indemnity terms before disclosing Source Materials to Company (including pursuant to any regulatory compulsions).
2.9 Remedies and Injunctive Relief: Company acknowledges and agrees that any breach of provisions of this clause 2 would result in immediate and irreparable harm to FocalX for which monetary damages would be an inadequate remedy, including loss of proprietary architecture, trade secrets, and business model integrity. Therefore, FocalX is entitled to injunctive relief, specific performance, indemnification, and all other remedies at law or equity including the right to terminate availability of Services immediately without prior notice, even in the event of a threatened breach without any prior condition of demonstrating actual loss, damage or costs. Upon termination of the Agreement pursuant to a reason connected with the provisions of this clause 2, all prepaid fees, advance monies, and unused credits shall be deemed earned and non-refundable, as a reasonable pre-estimate of damages and not as a penalty, given the difficulty of quantifying harm arising as a result of any actual or threatened breach of the provisions of this clause 2.
3. CUSTOMER DATA AND DATA PRIVACY
3.1 Roles of Parties: The Parties acknowledge and agree that, in relation to the processing of Customer Data containing personal data, Company acts as the data controller and FocalX acts as the data processor, within the meaning of GDPR.
3.2 Processing on Behalf of Company: FocalX shall process Customer Data solely on behalf of, and in accordance with, the documented instructions of Company, as set out in the Agreement and suitable DPA. FocalX agrees and accepts that FocalX shall not process such Customer Data for any purposes other than those specified in the DPA.
3.3 The processing of personal data by FocalX, including the subject matter, duration, nature, and purpose of processing, the types of personal data and categories of data subjects, and the respective rights, duties, and obligations of Company as controller and FocalX as processor, shall be governed exclusively by DPA which is hereby incorporated by reference into the Agreement. Each Party shall ensure compliance with any data protection and privacy legislations applicable to them under their respective home jurisdiction.
3.4 AI Training:
3.4.1 All Customer Data shall remain the property of Company or its licensors, as applicable. Notwithstanding the foregoing, Company hereby grants to FocalX a worldwide, non-exclusive, royalty-free licence during the term of the Agreement to host, store, process, transmit, analyse, display, and otherwise use the Customer Data solely to the extent reasonably necessary for the purposes of providing, operating, maintaining, supporting, securing, and improving Services and fulfilling FocalX’s obligations under the Agreement. Except as expressly set out herein, nothing in the Agreement shall be construed as transferring ownership of Customer Data to FocalX. It is clarified that FocalX shall retain exclusive ownership of any machine learning models, trained models, embeddings, statistical relationships, or other computational artefacts created, trained, refined, or improved through the operation of Services, including where such models have been developed using datasets derived from multiple customers or sources.
3.4.2 FocalX may generate datasets derived from Customer Data that have been anonymised, aggregated, or otherwise processed in such a manner that neither Company nor any natural person can reasonably be identified, directly or indirectly (collectively, “De-Identified Data”). To the extent permitted under Applicable Laws, De-Identified Data shall not be considered Customer Data for the purposes of the Agreement. All rights, title, and interest in and to such De-Identified Data shall belong exclusively to FocalX, and FocalX shall be entitled to retain, use, reproduce, modify, analyse, and otherwise exploit such De-Identified Data without restriction, provided that such use does not enable the identification of Company or any identifiable individual. Further, FocalX shall ensure that such de-identification shall not be reversed under any circumstances.
3.4.3 FocalX shall be entitled to develop case studies, business case materials, product literature, and marketing or sales materials based on insights, outcomes, and learnings derived from tests, trials, pilot deployments, and operational use of the Services, provided that any underlying data used for such purposes is De-Identified Data such that it does not constitute Confidential Information or personal data of Company (the “Permitted Materials”).
3.4.4 Subject to Company’s prior written consent (not to be unreasonably withheld or delayed), FocalX may use Company’s name, trade name, brand, and logos solely for the purpose of identifying Company as a customer in such Permitted Materials.
3.4.5 All rights, title, and interest in and to the Permitted Materials, including any generalised insights, formats, methodologies, and presentations embodied therein, shall vest exclusively in FocalX, provided that nothing in this clause shall grant FocalX ownership of the Company’s underlying data or Confidential Information.
3.4.6 FocalX shall ensure that such Permitted Materials: (i) do not disclose any commercially sensitive or business-critical information of Company; (ii) do not misrepresent the nature of the Services or outcomes achieved; and (iii) comply with Applicable Laws and reasonable branding or usage guidelines notified by Company.
3.4.7 Company may, upon reasonable written request, require FocalX to cease future use of its name, brand, or logo in new materials, provided that FocalX shall not be required to withdraw or modify materials already published or distributed prior to such request.
3.4.8 Company may elect to opt out of the use of its Customer Data for the generation of De-Identified Data intended for machine learning training or service improvement by providing written notice to FocalX. Upon receipt of such notice, FocalX shall cease using newly generated Customer Data from Company for such purposes from the effective date of the opt-out. Company acknowledges that: (i) such opt-out may limit certain improvements, optimisations, or capabilities of Services; and (ii) FocalX shall be entitled to continue using any De-Identified Data generated prior to the effective date of such opt-out.
4. TERM & TERMINATION
4.1 Each Party may terminate the Agreement by sending a prior written notice to the other Party, in the event of:
4.1.1 the other Party becoming insolvent, or if any debt arrangement, or proceeding under any bankruptcy or insolvency law is instituted and not dismissed within thirty (30) days; or
4.1.2 the other Party being liquidated, ceasing to do business as a going concern, or losing its legal rights, licenses, or capacity to perform its obligations under the Agreement;
4.2 FocalX may terminate the Agreement by sending a prior written notice to Company, in the event of:
4.2.1 Company’s breach of any obligation, representation, warranty, or term of the Agreement, which is either incapable of remedy, or if capable of remedy, is not cured within thirty (30) days from receipt of FocalX’s notice specifying such breach;
4.2.2 occurrence of a Force Majeure Event that continues beyond thirty (30) days from commencement and makes continuation of the Agreement impracticable in FocalX’s sole determination;
4.2.3 Company’s failure in paying for any pending outstanding and undisputed charges, after FocalX’s prior notice in writing (emails permitted) demanding the payment for such outstanding amounts, within thirty (30) days from such demand.
4.2.4 FocalX electing to terminate the Agreement by providing ninety (90) days’ prior written notice to Company.
4.3 Company may terminate the Agreement by sending a prior written notice to FocalX, in the event of:
4.3.1 FocalX’s breach of any obligation, representation, warranty, or term of the Agreement, which is either incapable of remedy, or if capable of remedy, is not cured within thirty (30) days from receipt of FocalX’s notice specifying such breach, provided that where any Custom Development is appointed by Company or where a Change Order is currently being implemented, then the notice period shall be a minimum of six (06) months irrespective of whether or not breach is there; or
4.3.2 Company deciding to engage any other service provider for providing Services in which case Company shall provide a prior notice of at least six (06) months.
4.4 Consequences of Termination
4.4.1 Company shall cease immediately from being a Subscriber of the Product, and all rights and obligations of FocalX under the Agreement shall stand terminated to that extent. Services shall be terminated and any permissions granted previously will stand withdrawn and terminated.
4.4.2 Each Party shall return or destroy all Confidential Information belonging to the other Party and issue certification to that effect, as per the written instructions of the other Party.
4.4.3 Subject to other provisions of the Agreement, termination shall not affect any rights, obligations, or liabilities accrued up to the date of termination. Company shall be liable to pay Pending Fees, if any there may be.
4.4.4 Any assistance provided by FocalX to Company in connection with the migration, transfer, or extraction of Company’s data (including Customer Data) or any other post-termination transition activities shall be entirely optional and provided solely at FocalX’s discretion.
4.4.5 To the extent FocalX agrees to provide such assistance, the scope, timeline, and fees or costs associated therewith shall be mutually agreed in writing (emails permitted) between Parties at the time such assistance is requested.
5. REPRESENTATIONS BY PARTIES
5.1 Both Parties represent, warrant, covenant, confirm and undertake that:
5.1.1 they have the full right, power and authority to enter into the Agreement, perform their obligations hereunder, and are duly incorporated under the laws of their respective jurisdictions;
5.1.2 they are and will continue to be for the duration of the Term, respectively in compliance with all material and legal aspects with all Applicable Laws and relating to their formation, ownership and operation and conduct of their businesses, and that they have not received notice of any alleged non-compliance with any such laws, the existence or enforcement of which would have a material adverse effect on such ownership, operation or conduct.
5.1.3 the execution of the Agreement by and the performance of their respective obligations and duties hereunder, and the transactions contemplated herein have been duly authorized by all necessary corporate action, and do not and will not violate any other agreement to which they are a party or by which they are otherwise bound, and that it shall not enter into or acquiesce in any other agreement/arrangement which could prevent it from fully complying with the provisions of the Agreement;
5.1.4 when executed and delivered, the Agreement will constitute the legal, valid and binding obligation for both, enforceable by either Party against the other Party in accordance with the terms herein and Applicable Laws;
5.1.5 they shall not, anytime during the Term or thereafter, make any statement, orally or in writing, or do any act that may disparage the Product, or the other Party or adversely affect promotion of the Product;
5.1.6 that they are not subject to any bankruptcy proceedings in any jurisdiction and there are no circumstances which exist that would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against their respective assets;
5.1.7 that there is no action, suit, writ, investigation or other legal proceeding pending in or before any Authorities, or court, governmental or regulatory authority to restrain or otherwise prevent the execution of the Agreement and that they have obtained all permissions from Authorities for the proper carrying on of their businesses; and
5.1.8 they shall perform their respective obligations and services to each other on a good faith basis.
5.2 Company represents, warrants, covenants, confirms and undertakes that:
5.2.1 none of the representations or warranties made by Company, and no document, statement, or information provided by Company in connection with the Agreement, is false, misleading, or omits any material fact necessary to make the information not misleading in light of the circumstances in which it is given.
6. FORCE MAJEURE EVENT
Neither Party shall be liable, with respect to any failure to perform or delay in performing any of its respective obligations hereunder or of the non-performance of any term or condition of the Agreement, resulting from any Force Majeure Event. If any compliance of obligations under the Agreement by either Party is delayed, prevented, restricted or interfered with by reason of a Force Majeure Event, then the affected Party shall, as soon as practicable, but in any event not later than two (02) days of occurrence of a Force Majeure Event, notify to the other Party in writing: (i) the details of the nature and extent of the Force Majeure Event in question; (ii) the manner in which the affected Party is affected; and (iii) the affected Party’s best estimate of the likely extent and duration of its inability to perform its obligations under the Agreement, and, thereafter, promptly provide any further information which the other Party may require. Further, the affected Party shall use all reasonable endeavours to mitigate the consequences of the Force Majeure Event and undertake and perform its obligations and duties in such other ways as may be practicable. As soon as the Force Majeure Event is over or ceases to exist, each Party shall perform its respective obligations in accordance with the terms of the Agreement and undertake additional steps, on a best-efforts basis, in order to produce outcomes as if no Force Majeure Event occurred. It is clarified that Subscription Fees are paid on an annual basis and therefore once paid for, then Services are available for usage during the billing Term and hence occurrence of Force Majeure Event shall not be a ground for Company claiming any refunds under any circumstances whatsoever.
7. INDEMNIFICATION
7.1 Company’s Indemnity: Company (“Indemnifying Party”) shall defend, hold harmless and indemnify FocalX, its affiliates and the directors, officers, employees, of each of the foregoing (“Indemnified Parties”) from and against any and all liabilities, damages, losses, demands, claims, costs (including court costs and legal fees), and expenses actually suffered or incurred by the Indemnified Parties as a result of:
7.1.1 a breach, non-performance or inadequate performance by the Indemnifying Party of any of its undertakings, obligations or warranties under the Agreement;
7.1.2 misrepresentations and/or wilful misconduct of the Indemnifying Party and its employees in performance of its obligations under the Agreement;
7.1.3 Indemnifying Party’s use or misuse of Services or Outputs; or Indemnifying Party’s decisions or actions taken based on the Outputs;
7.1.4 Indemnifying Party’s infringement of IP Rights of the Indemnified Parties or any third party, and disclosure of Confidential Information; and
7.1.5 Indemnifying Party’s violation of any Applicable Laws, or any order or judgment of any judicial authority.
7.2 Company shall be liable for such acts or omissions which are directly attributable to it and/or its direct subsidiaries and affiliates, arising out of or in relation to the performance of its obligations under the Agreement.
7.3 FocalX’s Indemnity:
7.3.1 In case any disputes/claims and/or other legal proceedings are initiated by any third party(ies) against Company (“Claims”) in connection with the subject matter of the Agreement, then Company shall immediately notify FocalX about such Claims along with a copy of any correspondence pertaining to such Claims. FocalX is hereby authorized to handle and deal with all such Claims to the exclusion of Company, unless mutually agreed between Parties otherwise in writing and executed between Parties. Company shall fully cooperate with FocalX, if required, by providing relevant data/information/communication to assist FocalX to defend such Claims.
7.3.2 If, as a result of any actual or alleged breach of the Agreement, violation of any Applicable Laws, or upon arising of any claim, allegation, or determination of infringement of any third party’s IP, Services or any portion thereof is held by a court of competent jurisdiction to be infringing, or if FocalX reasonably believes that Services or any portion used in providing Services, may be infringing (collectively as “FocalX’ Infractions”), then FocalX may, at its sole option and expense, take one or more of the following actions (i) modify or replace the affected portion of Services so that it becomes non-infringing provided that such modification or replacement offers substantially similar features and functionality; (ii) disable, remove, or limit the infringing feature or component of Services, where reasonably practicable; (iii) procure for Company a license or other right to continue using Services in accordance with the Agreement; or (iv) if none of the foregoing options is commercially reasonable or practicable, then FocalX may terminate the Agreement (in whole or in part) and refund to Company any prepaid and unused Subscription Fees for the duration for which Services were affected, calculated on a pro rata basis (on a per day, per month basis).
7.3.3 FocalX’s obligations set out immediately above shall not apply to, and FocalX shall have no responsibility or liability arising from or relating to, any claim, breach, infraction, or alleged violation to the extent such claim arises from (i) any portion or component of FocalX Offering that is not supplied or controlled by FocalX; (ii) the combination, integration, or use of FocalX Offering with any other object, or product (including Company’s Systems) not provided by FocalX, where the alleged breach, infraction, or violation would not have occurred but for such combination, integration, or use; (iii) Company’s continued use of Services or FocalX Offering after FocalX has notified Company, any potential challenges in continued usage of FocalX Offering; (iv) Company’s continued use of FocalX Offering in the same manner as prior to the implementation of any modifications intended to prevent or remedy any unlawful or impermissible activity; or (v) any use of FocalX Offering by Company other than in strict accordance with the Agreement, applicable documentation, or FocalX’s instructions provided in writing (emails permitted).
7.4 Neither Party or their, officers, agents, and representatives, shall make any remarks, statements or admissions regarding or in relation to such Claims.
7.5 Sole and Exclusive Remedy:
7.5.1 The indemnification obligations of FocalX expressly set out in this clause 7 shall constitute Company’s sole and exclusive remedies in respect of any actual or alleged infringement, breach, or violation relating to the Agreement, including any related loss, damage, claim, liability, cost, or expense arising or incurred by Company. To the maximum extent permitted by Applicable Laws, FocalX shall have no further or additional liability over the foregoing. All indemnification obligations of FocalX under this clause 7 shall, in the aggregate, be subject to and limited by the maximum liability cap set out in clause 8.4 (Limitation of Liability).
7.5.2 Where, in connection with FocalX’s Infractions, FocalX elects not to, or is unable to, provide a replacement, modification, workaround, or license in respect of the affected Services then Company may terminate the Agreement solely with respect to the affected Services by providing a notice in writing (emails permitted). Any such termination shall constitute the final and exclusive remedy available to Company when such termination is undertaken pursuant to the foregoing. It is clarified that upon termination pursuant to this clause, Company shall not be entitled to any other remedy as specified herein this clause, including the remedy to any refund, credit, or reimbursement of any prepaid, unused, or outstanding fees, and all fees paid or payable up to the effective date of such termination as aforementioned shall be deemed fully earned. Company expressly acknowledges that the absence of any refund under this clause has been taken into account in the overall allocation of risk, pricing, and limitation of liability agreed between Parties.
8. LIMITATION OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, WHETHER FORESEEABLE OR NOT, AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 To the maximum extent permitted by Applicable Laws, FocalX shall have no liability whatsoever for any loss, damage, injury, claim, penalty, fine, cost, or consequence arising from or relating to (i) Company’s reliance, partial reliance, or over-reliance on the Outputs; (ii) misuse, misinterpretation, or unauthorised use of the Outputs; (iii) downstream use, integration, or incorporation of the Outputs into Company’s Systems, workflows, or decision-making processes; and (iv) any failure of Services owing to reasons attributable to Company’s Systems, irrespective of whether such liability may arise in contract, tort (including negligence), strict liability, product liability, or otherwise.
8.3 Company acknowledges and agrees that: (i) the Product and Services are not consumer products; (ii) the Product does not constitute a safety component, regulated product, or embedded system; and (iii) no part of the Product is intended to be used in a safety-critical, life-critical, or legally determinative context. Accordingly, to the maximum extent permitted by Applicable Laws, Company hereby waives and disclaims any claims that they may raise in connection with any product liability norms in connection with FocalX Offering.
8.4 Notwithstanding anything to the contrary contained in the Agreement, and excluding only liability that cannot be lawfully excluded under Danish law, including liability arising from fraud or wilful misconduct, or gross negligence, FocalX’s maximum aggregate liability for all claims, damages, losses, costs, expenses, or liabilities arising out of or in connection with the Agreement, Services, the Product, the Outputs, or any use thereof, whether in contract, tort (including negligence), strict liability, product liability, or otherwise, shall be limited to the Subscription Fees actually paid by Company to FocalX for Services during the three (03) months immediately preceding the event giving rise to the claim.
9. CONFIDENTIALITY
9.1 Both Parties hereby undertake not to disclose, reveal or make public except with the prior written consent of the other Party, any information whatsoever concerning the Confidential Information including any financial information relating to the Product, or the Agreement and all the terms and conditions contained herein. Both Parties shall keep strictly secret and confidential the Confidential Information received from the other Party.
9.2 It is expressly clarified that neither Party shall make any public statement or press statement or provide any interviews to the media in connection with the Confidential Information, or their services or obligations, or commit any act which may prejudice or damage the successful promotions, marketing and organization of the Product, or the reputation of the other Party, save and except in accordance with a mutually agreed plan and after prior approval (emails permitted) has been sought from the other Party, whose Confidential Information may be disclosed.
9.3 Both Parties shall keep in a safe and secure place all documentation relating to the Confidential Information.
9.4 Notwithstanding anything else that may be to the contrary in the Agreement, FocalX shall be entitled to share Confidential Information that is the subject matter of any request by any authority, police, any government official (central, state or municipal) or any other department or organization dispensing executive functions for the government, or which has been sought pursuant to any legal request by a judicial, quasi-judicial or any arbitration or mediation panel.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Parties shall adhere to and comply with all the brand guidelines shared by the other Party, and ensure that neither Party shall undertake any steps or measures that may infringe upon other Party’s Intellectual Property Rights and undertake not to impair or prejudice the title or interest of the other Party in its Intellectual Property Rights. Nothing contained herein shall grant either Party any right, title or interest in the Intellectual Property Rights of the other Party, and except as provided in the Agreement, neither Party shall utilise or display the Intellectual Property Rights of the other Party without the prior written consent of the other Party.
10.2 Parties recognize and acknowledge the proprietorship of the trademarks, copyrights, logo and the reputation of each other and goodwill attached to the said Intellectual Property Rights. Both Parties agree to cooperate with each other in preserving such reputation and goodwill and pledge to refrain from doing any act, directly or indirectly which may, in any way impair or infringe the said proprietorship.
10.3 It is re-iterated that FocalX alone shall be the sole and exclusive owner of all IP existing in connection with FocalX Offering, Services, Developments, Custom Developments and Background IP, and any customization, development, derivative (including without limitations improvements, enhancements, modifications) thereof and such similar works generated, during the course of the Agreement in connection with delivery of Services. Any availability of FocalX’s IP to Company does not by any means constitute any transfer, assignment, vestment of copyright in such aforementioned works with Company. Parties agree that there is no mutual intent to cause any transfer, assignment or convey, or vest any IP Rights in any copyright works with Company, whether pre-existing or generated in the course of the Agreement.
10.4 Each Party shall exclusively own its IP and neither Party will have any claim or right to the IP of the other (including their licensors) by virtue of the Agreement or the performance of any activities hereunder except as otherwise provided herein. Neither Party will take any action or make any claim to any IP belonging to the other Party (or any of their licensors), whether during the Term of the Agreement or thereafter, which is inconsistent with this clause.
10.5 Company hereby grants to FocalX a worldwide, non-exclusive, royalty-free license, during the term of the Agreement, to use Company’s and Company’s clients/customer’s name, trade names, trademarks, service marks, and logos (collectively, the “Licensed Marks”) in FocalX’s marketing, promotional, and publicity materials, including but not limited to websites, presentations, case studies, sales materials, advertisements, press releases, and other promotional communications, solely for the purpose of identifying Company, and its clients/customers as a customer or user of Services. Company shall obtain and procure appropriate permissions from its clients/customers towards enabling FocalX to use such clients/customers’ Licensed Marks in the aforementioned activities.
11. EXCLUSION OF WARRANTIES
Except for the specific representations and warranties as are mentioned herein, FocalX makes no representation or warranty of any kind, whatsoever, with respect to the provision of FocalX Offering, Services or the results and proceeds including Outputs thereof, and expressly disclaims any warranties of merchantability, or fitness for a particular purpose, or aesthetic appeal, for any purposes, or a particular quantum of sales, or any other implied warranties with respect to FocalX Offering or Services.
12. GOVERNING LAW, JURISDICTION & DISPUTE RESOLUTION
12.1 This Agreement shall be governed by and construed in accordance with the laws of Denmark, without regard to its conflict of laws principles.
12.2 Any dispute, controversy, or claim arising out of or in connection with the Agreement, including any question regarding its existence, validity, interpretation, performance, breach, or termination, shall be finally resolved by arbitration administered by the Danish Institute of Arbitration (DIA) in accordance with the Rules of Arbitration adopted by the DIA in force at the time the arbitration is commenced.
12.3 The seat of arbitration shall be Copenhagen, Denmark.
12.4 The arbitral tribunal shall consist of three (03) arbitrators. Each Party shall appoint one arbitrator, and the two arbitrators so appointed shall jointly appoint the presiding arbitrator.
12.5 The language of the arbitration shall be English.
12.6 Parties agree that emergency arbitrator proceedings may be initiated in accordance with the applicable Rules of the Danish Institute of Arbitration, and that any interim or emergency measures ordered by an emergency arbitrator shall be binding on Parties.
12.7 Expedited Arbitration: Notwithstanding anything to the contrary contained in the Agreement, Parties agree that any dispute, controversy, or claim arising out of or in connection with the Agreement where the aggregate monetary value of the claims and counterclaims does not exceed EUR 75,000 (seventy-five thousand euros) shall be resolved in accordance with the expedited arbitration procedure administered by the Danish Institute of Arbitration, in accordance with the expedited procedure provisions of the DIA Rules in force at the time the arbitration is commenced. In such expedited proceedings, the arbitral tribunal shall consist of a sole arbitrator, unless the DIA determines otherwise in accordance with its Rules. All other aspects of the arbitration, including the seat of arbitration, governing law, and language, shall remain as specified in the Agreement.
12.8 The arbitral award shall be final and binding upon Parties.
13. MISCELLANEOUS
13.1 Notices: All notices under the Agreement, may be sent to the addresses (email ids included) of Parties specified at the start of the Agreement or such address as Parties shall advise to the other Parties by notice in accordance with provisions of this instant clause, and such notices shall be deemed to have been received within (i) five (05) days if sent by registered post; (ii) seven (07) days if sent by Blue Dart/DHL; (iii) immediately, if delivered by hand; (iv) forty-eight (48) hours if delivered by electronic mail to FocalX at legal@focalx.ai, and to Company at isabella@focalx.ai.
13.2Assignment: Company may not assign their rights and/or obligations under the Agreement to any other person, firm or corporation without prior approval by FocalX in writing (emails permitted). FocalX may assign their rights and/or obligations under the Agreement to any other person, firm or corporation without prior approval by Company.
13.2 Independent Contractors: Parties’ relationship with each other will be on a principal-to-principal basis, i.e., both Parties shall function in the manner, and provide their respective services as an independent contractor and nothing in the Agreement is intended to or should be construed to create a partnership, association of person, joint venture, agency or employer-employee relationship.
13.4 Waiver: Any waiver by either Party shall be considered as a waiver only when given directly in writing as a waiver and signed by the waiving party.
13.4 Publicity: Subject to usage of the IP Rights as contemplated herein, all media releases, public announcements and public disclosures by one Party, relating to the Agreement, or the subject matter thereof, including but not limited to promotional marketing material, but not including any announcement intended solely for internal distribution by Company and FocalX or any disclosure required by legal accounting or regulatory requirements, shall be approved by the other Party prior to release.
13.6 Taxes
13.6.1 Taxes on Income: Each Party shall be solely responsible for, and shall bear, all taxes, duties, levies, and governmental charges imposed on its respective net income, profits, or gains, receipt of supply, or remittance of payments, in accordance with Applicable Laws. Where any withholding tax or similar levy is required by Applicable Laws to be deducted at source from payments made under the Agreement, the deducting Party shall deduct such tax and provide the other Party with appropriate documentation or certificates evidencing such deduction. It is clarified that the Fees specified in the Agreement are exclusive of, and shall not be reduced by, any withholding taxes or similar deductions. If the Company is required by Applicable Law to deduct or withhold any tax from any payment due to Focalx under the Agreement, the Company shall increase (gross up) the amount payable so that, after such deduction or withholding, Focalx receives an amount equal to the full amount that would have been payable as the specified Fees, had no such deduction or withholding been required.
13.6.2 Invoicing and Payment: All payments due to FocalX shall be made in the manner specified by FocalX and shall be subject to the issuance of valid and compliant invoices in accordance with Applicable Laws governing invoicing requirements in the relevant jurisdiction of supply. Company shall make payment against such invoices within the agreed payment timelines.
13.6.3 Value Added Tax: If, and to the extent, any value added tax, goods and services tax, sales tax, digital services tax, or any similar indirect tax (“VAT”) is applicable to Services or any supply made under the Agreement, then: (i) the Party required by Applicable Laws to charge such VAT (the “Invoicing Party”) shall issue a valid, tax-compliant invoice to the other Party (the “Invoiced Party”); (ii) the Invoiced Party shall pay the VAT amount specified in such invoice in addition to the underlying fees; and (iii) each Party shall cooperate in good faith and provide reasonable assistance, documentation, and information required to ensure correct VAT treatment, reporting, and compliance.
13.6.4 Input Tax Credit and Compliance: Where Applicable Laws permit the recovery or credit of VAT charged, the Invoicing Party shall use commercially reasonable efforts to comply with its statutory filing and reporting obligations to enable the Invoiced Party to claim such credit. The Invoicing Party shall not be liable for any denial, restriction, or loss of input tax credit suffered by the Invoiced Party where such denial arises due to reasons not attributable to the Invoicing Party’s failure to comply with Applicable Laws.
13.6.5 Change in Tax Law / Future Tax Arrangement: Parties acknowledge that indirect tax laws, including VAT regimes, may change or be interpreted differently over time, particularly in the context of cross-border supplies of services. Accordingly, Parties agree that, where necessary to ensure continued compliance with Applicable Laws or to harmonize the tax treatment of Services between the jurisdictions involved, they may mutually agree to enter into a separate tax arrangement or amendment addressing such changes, without requiring renegotiation of the commercial terms of the Agreement.
13.6.6 It is clarified that all the service charges specified in the Agreement anywhere including in any respective SoW are exclusive of taxes, levies, fees, charges, deductions, on income, receipt of supply, import of services, remittances of payments and VAT. In other words, the service charges specified in the Agreement are to be paid in full without any type of deduction and any incidence of taxes shall be always understood to be applicable on top of it and payable by Company without any recourse to FocalX.
13.7 Severability: All provisions of the Agreement shall be severable, and no such provisions shall be affected by the invalidity of any other provision to the extent that such invalidity does not so render other provisions invalid. In the event of the invalidity of any provision of the Agreement, it shall be interpreted and enforced as if all the provisions thereby rendered invalid were not contained herein. If any provision of the Agreement shall be susceptible to two interpretations, one of which would render the provision invalid and the other of which would cause the provision to be valid, such provision shall be deemed to have the meaning which would cause it to be valid.
13.8 Entire Agreement: The Agreement contains the entire agreement between Parties and supersedes any prior agreement, understanding or negotiations, oral or written, between Parties on the subject matter of the Agreement and shall be binding on both Parties.
13.9 Counterparts: The Agreement may be executed in 02 (two) counterparts, each of which when so executed and delivered shall be deemed an original, and such counterpart together shall constitute one and the same instrument.
13.10 Survivability: Clauses 5, 6, 7, 8, and 9 and all other clauses of the Agreement, which by their very nature require to survive in order to give meaning and effect to surviving clauses shall also survive the expiry or termination of the Agreement.
13.11 Digital Signature: Parties have agreed that authentication of the Agreement through the software known as ‘AdobeSign/DocuSign’ or other similar mechanisms shall be considered as valid execution. Parties agree that such digital signatures shall be considered as original signatures for all purposes and shall have the same force and effect as original, wet-ink signatures. Parties acknowledge that, while having the option to affix wet-ink signatures and to decline the use of digital signatures, they have elected and consented to electronic authentication and execution of the Agreement through steps taken online including without limitation, affixation of digital signatures through ‘AdobeSign/DocuSign’. Parties acknowledge that they shall be estopped from claiming that the Agreement is not validly executed on the ground that wet-ink signatures were not applied.
13.12 Conflict of Interest: Company shall not have any FocalX’s officer serving in any role nor shall Company have any direct or indirect relationship with any of FocalX’s officers, which has the potential to put FocalX in a disadvantageous position vis a vis Company. If such a relationship exists which has not been disclosed to FocalX, Company shall report such relationship to FocalX immediately. In case Company is an individual, sole proprietorship or partnership concern, Company warrants that neither Company nor the sole proprietor nor any of the partner(s) has as his/her relatives in any role as a FocalX’s officer. In case such relationship exists, the same shall be disclosed forthwith by Company to FocalX.
13.13 Bribes, Gifts, Entertainment, Favors And Payments:
13.13.1 Parties herein confirm that they shall not offer any gifts, payments, services, or other favors to the employees, personnel of the other Party where these would, or might appear to improperly influence the employee in performing his or her duties for such Party. Consistent with each Party’s requirement that all business conducted adhere to Applicable Laws and regulations, the use of bribes, secret compensation or kickbacks is strictly prohibited.
13.13.2 Each Party shall ensure that it and its sub-contractors and agents involved in the performance of the Agreement will comply with all Applicable Laws including anti-bribery, money laundering etc.
13.13.3 Each Party hereby agrees and confirms that they shall comply with FocalX’s Anti-Bribery and Corruption Policy in this regard made available from time to time, and that each Party, its subcontractors and agents shall have required internal policies to ensure such compliances. Each Party undertakes that they shall procure compliance with such policies and procedures by its officers, directors, employees and sub-contractors and that they shall procure similar undertaking from their sub-contractors also if they are involved in the performance of the Agreement.
13.14 Non-Solicitation: During the term of the Agreement and for a period of twelve (12) months following the termination or expiration of the Agreement for any reason, neither Party shall, directly or indirectly, solicit for employment or engagement any employee or key contractor of the other Party who has been directly involved in the performance or management of Services under the Agreement, without the prior written consent of the other Party. For the purposes of this clause, “solicit” shall mean the direct and targeted recruitment of such personnel with the intent of inducing them to terminate their employment or engagement with the other Party.
13.15 Notwithstanding the foregoing, this restriction shall not apply to: (i) general recruitment efforts, including job postings, advertisements, recruitment campaigns, or searches conducted through recruitment agencies that are not specifically directed at employees or contractors of the other Party; (ii) any employee or contractor who responds independently to such general recruitment efforts without direct solicitation by the recruiting Party; (iii) any individual whose employment or engagement with the other Party has terminated at least six (6) months prior to the commencement of recruitment discussions; or (iv) any recruitment or engagement mutually agreed in writing between Parties.
13.16 Each Party acknowledges that the restrictions contained in this clause are reasonable and necessary to protect the legitimate business interests of Parties, including the stability of their workforce and the continuity of services. Nothing in this clause shall prevent either Party from hiring or engaging an individual who approaches such Party independently without solicitation.