Terms & Conditions

ethicAil – General Terms & Conditions

Participating Members

1. INTRODUCTION AND DEFINITIONS

1.1 These ETHICAIL Terms & Conditions for Participant Members (‘T&Cs’) are used by the private company Simedics Limited (trading as ethicAil) with limited liability to the laws of England.

1.2 The legal relationship between ETHICAIL and you – as a Participant – is governed by the combination of the ‘Participant Membership Agreement (‘Commercial Schedule’)’ and these T&Cs, jointly to be referred to as: “the Participant Agreement”. The Participant Agreement governs your involvement in the Assessment(s) and your use of the ETHICAIL Products and Services.

1.3 The Participant Agreement comes into effect at the date of signing the Participant Agreement (“Start Date”). New versions of the T&Cs may be agreed upon separately, upon registration or login at the Portal.

1.4 Unless the context requires otherwise, words and phrases used in the Participant Agreement shall have the meanings given to them in this clause 1.4:

‘Assessment(s)’: any or all of (i) the Participant submitting data on an annual (or more regular) basis to assess the Responsible AI performance of its business organisation and/or investments and (ii) ETHICAIL’s activities connected with such assessment processes including, but not limited to, data processing, validation, analysis, scoring, benchmarking and development of the Data to create Scorecards and/or Benchmark Reports;

‘Portal Access Tool’: a Portal tool, which allows Participants access their Assessments, and to invite their colleagues and external consultants to help them with the submission of Participant data to ETHICAIL. Also, allows access to information and communication between the Participant and ETHICAIL;

‘Assessment Period’: the period for the Participant to submit all Assessment data to ETHICAIL, as indicated by ETHICAIL (e.g. April 1st – July 1st of the Assessment Year);

‘Assessment Year’: the book year in which an Assessment was undertaken;

‘Authorised Representative’: an employee of the Participant, who holds a position in which he regularly works with the ETHICAIL Products and Services, who is appointed by the Participant to receive a username and password to access the ETHICAIL Products and Services;

‘Benchmark Report’: a report prepared by ETHICAIL which contains, but is not limited to non- financial peer benchmarking and question-by-question analysis of a Participant’s performance according to the data collected in the Assessment(s);

‘Data’: any and all data and/or other information supplied by ETHICAIL through the ETHICAIL Products and Service(s) or by any other means, including but not limited to Scorecards and Benchmark Reports;

‘Database’: the collection of independent works, data and/or other materials comprising, in whole or in part, data collected and processed as a result of the Assessment(s) and/or the ETHICAIL Products and Service(s), including, but not limited to, the Data, all data validation decisions, all scoring and analysis algorithms and all records of statistical analysis;

‘ETHICAIL’: ETHICAIL is a trading name of SIMEDICS LIMITED a company incorporated under the law of the ENGLAND with registration number 06687601;

‘ETHICAIL Products and Service(s)’: any current and future products and service(s) developed and supplied by ETHICAIL to its Members and customers, as per its binding agreements. These products and services shall include but not be limited to the
Assessment services, Benchmark Reports and Scorecards, Reporting solutions, and Consultancy services. They may include third party data products;

‘Indicators’: the criteria and metrics included in the Assessments, which are compiled by ETHICAIL on an annual basis, and are to be used to assess the Responsible AI performance of an organisation and/or to facilitate reporting/disclosure on Responsible AI usage;

‘Intellectual Property Rights (IPRs)’: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade-, business- and domain- names, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and all other industrial and/or commercial rights and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all rights to apply for the same, and all similar or equivalent rights or forms of protection in any part of the world. For clarity, ETHICAIL’s IPRs shall include but not be limited to the content and format of the ETHICAIL Website, the ETHICAIL Portal and any ETHICAIL Products and Service(s);

 ‘Losses’: any losses, damages, costs, expenses or liabilities;

‘Member’: any entity, association, partnership or organisation that is a party to a Membership Agreement with ETHICAIL, being a Participant Member, Investor Member or other Partner Member;

‘Participant’: each entity that is a party to a Participant Membership Agreement with ETHICAIL, with the purpose of participating in the Assessment(s) – whether directly or via a third party – with respect to this Participant’s organisation;

‘Participant Agreement’: the combination of the Participant Membership Agreement and the T&Cs;

‘Participant Membership Agreement’: the agreement between ETHICAIL and the Participant, containing the core rights and obligations of the Parties with respect to the use of the ETHICAIL Products and Services by the Participant;

‘Participant Data’: the data and other information that ETHICAIL receives from a Participant – whether directly or through this Participant’s agent, consultant or representative – which includes, without limitation, its Assessment submission and/or any supporting information, or additional data submitted for additional ETHICAIL Products and Services;

‘Party’: both ETHICAIL and the Participant, that are a party to this Participant Agreement;

‘Portal’: ETHICAIL’s online non-public portal currently accessed via https:// ethicail.co/ and used, inter alia, for providing ETHICAIL Products and Services;

‘Portal Tools’: all tools and functionalities available in the Portal, which are included in the standard Membership Agreement;

‘Privacy Statement’: the ETHICAIL Privacy Statement as amended periodically, which is found on https://ethicAil.co/privacy/ and which is sent to you upon your request;

‘Scorecard’: a document summarizing an individual Participant’s annual Assessment results;

‘Medals’: awards provided to Participants in recognition of achieving predetermined scores in annual assessments. ETHICAIL reserves the rights to amend the required scores necessary to receive and maintain awarded medals;

‘Start Date’: the date of signature of the Participant Agreement by the Participant;

‘T&Cs’: these ETHICAIL Terms & Conditions for Participants, or any subsequent version thereof;

‘Us’ or ‘We’: ETHICAIL;

‘Website’: the website currently located at https://ethicail.co/ or any other website through which ETHICAIL manages the Assessment(s) and delivers the ETHICAIL Products and Service(s);

‘You’: the Participant who is a Party to this Participant Agreement.

2. ASSESSMENTS AND PARTICIPANT DATA

2.1 As a Participant you may participate in the Assessments with one or more Participating organisation and/or Participating organisation divisions, which you shall separately register in the Portal.

2.2 Participation in the Assessment(s) is at ETHICAIL’s sole discretion; ETHICAIL may at any time elect not to use the Participant Data submitted by any Participant.

2.3 For every Participating Organisation and Participating Division, you shall supply ETHICAIL with all data and other information that ETHICAIL may reasonably request from you with respect to the Assessment, in order to assess the Responsible AI performance of the Participating organisation involved.
In case you purchased additional ETHICAIL Products and Services, you shall supply the additional Assessment data and information required for these specific ETHICAIL Products and/or Services.

2.4 As a Participant you agree to actively cooperate with ETHICAIL for the purposes of ETHICAIL’s data validation process. In particular, provided that ETHICAIL gives you reasonable prior notice, you shall adequately make available employees and facilities to provide ETHICAIL with all necessary assistance to complete its data validation process with respect to your Participant Data.

2.5 You will supply the requested data and information during the Assessment Period, and you will supplement this data according to ETHICAIL’s requests during the subsequent validation and scoring period (unless otherwise communicated) – to allow ETHICAIL to undertake and validate the Assessment(s) and to provide the ETHICAIL Products and Service(s) to you.

2.6 All the Participant Data will, to the best of your knowledge and abilities be true, accurate and complete.

2.7 As a Participant you represent and warrant that you have the full power and authority to submit the Participant Data to ETHICAIL, and – if applicable – you have obtained and will maintain all necessary permissions, consents and licenses to do so.

2.8 As a Participant you acknowledge and confirm that you are aware of the possibility that information that you provide in the course of submitting Participant Data to ETHICAIL may be material non-public information (MNPI) also known in some jurisdictions as unpublished price- sensitive information (UPSI) and/or insider information. This is particularly relevant to Participants that are listed on a Stock Exchange. ETHICAIL expresses no opinion regarding this issue, accepts no liability and gives no warranty and/or assurance regarding the relevance of any applicable rules. While ETHICAIL recommends that you publicly disclose the Participant Data that you submit to ETHICAIL in accordance with clause 3.2, you acknowledge and agree that compliance with any applicable rules is your sole responsibility.

3. RESPONSIBILITY OF ETHICAIL

3.1 ETHICAIL shall not be responsible for any network-related failures, interruptions, outages, delays, system unavailability and other connectivity problems affecting the Solution or the Service.

3.2 In the event that ETHICAIL becomes aware of a data breach incident likely to severely compromise the security of the Solution or of the Service, or of the Users’ Data, ETHICAIL may, without notice, suspend momentarily the access to the Solution and to the Service in order to remedy the security breach in a timely manner. In such event, ETHICAIL shall not incur any liability to Users and Users shall not seek any compensation whatsoever from ETHICAIL.

3.3 ETHICAIL does not warrant any results from the use of the Service and shall only be held to an obligation to use best endeavours. ETHICAIL does not warrant that the functions of the Solution or of the Service will meet the Users’ requirements. The Solution and the Services shall be regarded only as a decision-making tools and ETHICAIL cannot be and is not liable for any decision taken by the User on such basis. The Parties hereby acknowledge that no software is error-free and that not all software errors can be corrected in a cost-effective manner or even that they need to be corrected.

3.4 Participants shall receive scores/medals based on the disclosed information and news resources available to ETHICAIL at the time of assessment. Should any information or circumstances change materially during the period of the Scorecard / medal validity, ETHICAIL reserves the right to place the business’ Scorecard / medal on hold and, if considered appropriate, to re-assess and possibly issue a revised Scorecard / medal.

3.5 ETHICAIL reserves the right to amend and adjust, without notice, the prerequisites required for a Participant to be awarded scores and/or medals.

4. PARTICIPANT USE OF ETHICAIL PRODUCTS AND SERVICE(S)

4.1 In consideration for the submission of Participant Data to ETHICAIL pursuant to clause 2 above, ETHICAIL grants to Participants for the term of this Participant Agreement a non-exclusive and non-transferable right:

  • to save, import, and print parts, extracts, and copies of the Participant’s Scorecard and/or Benchmark Report as well as the Indicators and the Participant’s responses to them for their own internal organizational use;
  • to make the Participant’s Scorecard and/or Benchmark Report, as well as the Indicators and the Participant’s responses to them available to any consultants appointed directly by the Participant for the sole purpose of providing advice to this Participant based on this Data and for no other purposes whatsoever, provided that the Data may not be manipulated or distributed by the recipients of it;
  • to publicly display, copy, and disclose their ETHICAIL Assessment(s) Indicator responses;
  • to incorporate insubstantial parts or extracts of the Data relating to the Participant in (a) public statement(s) that illustrate the performance of its investments or (b) investment performance reports provided by the Participant to its clients or (c) marketing materials to be provided to potential clients for promotional or illustrative purposes on an ad hoc basis.

4.2 In addition, Participants that are listed on a Stock Exchange are permitted to publicly disclose their ETHICAIL Assessment(s) Indicator responses, supporting documents, Scorecard and Benchmark Report on their company website.

4.3 The Participant shall ensure that any internal or external reproduction of all or part of the Data includes the following notices: ‘All intellectual property rights to this data belong exclusively to ETHICAIL (SIMEDICS LIMITED) All rights reserved. ETHICAIL (SIMEDICS LIMITED). has no liability to any person (including a natural person, corporate or unincorporated body) for any losses, damages, costs, expenses or other liabilities suffered as a result of any use of or reliance on any of the information which may be attributed to it’.

4.4 Notwithstanding this clause 3, Participants may not sell, sub-license, or otherwise commercially exploit the Scorecard/Benchmark Report or any other Data, nor may they make such Data available to any third party for exploitation or commercial use.

4.5 The ETHICAIL Products and Services do not include any responsibility for ETHICAIL to ensure or guarantee the Participant’s compliance with any (disclosure) regulations. This remains the Participant’s own responsibility.

4.6 No information relating to or derived from ETHICAIL’s Assessments, including the contents of the Benchmark Reports and Scorecards, may be used as a “Benchmark” as defined in Regulation (EU) 2016/1011.

4.7 In consideration for the submission of Participant Data to ETHICAIL pursuant to clause 2 above, ETHICAIL grants the Participant (for the term of the Participant Agreement) a non-exclusive and non-transferable right to use the Portal Tools for its own internal business purposes, i.e., for the collection of data for its Assessment submission and for no other purpose whatsoever.

4.8 The Participant agrees not to use the Portal Tools in any way that is not expressly permitted in this clause. No sale, transfer, sub-license, distribution or commercial exploitation of the Portal Tools or any of the information obtained using the Portal Tools is permitted.

4.9 On condition that the Participant submits Participant Data via the Portal in accordance with ETHICAIL’s requirements and the Participant Agreement, the Participant may use the trademark and trade name ‘ETHICAIL’ (written as ethicAil) and/or any other registered or unregistered signs, words or logos made available to it by ETHICAIL (collectively the “Marks”) for the specific purpose of identifying it as a Participant in publications, provided that:

  • The Participant shall at all times use the then current version of the Marks and adhere to, and be bound by, the then current version of the ETHICAIL Trademark Policy and Branding Guideline (available by request at [email protected]);
  • ETHICAIL is permitted to withdraw its consent to the use of any ETHICAIL Marks by giving written notice to the Participant in writing at any time, in which case the Participant Member shall effectively cease and desist any and all use of the Marks within 14 days of the date of such written notice;
  • The Participant shall promptly notify ETHICAIL in writing giving full particulars of any actual, suspected or threatened infringement of any of the Marks, or any challenge to the Marks made or threatened (including any claim that the Marks infringe the rights of any third party), that come to its knowledge.

5. ETHICAIL USE OF PARTICIPANT DATA AND DATA PROTECTION

5.1 As a Participant you acknowledge and agree that, in consideration for ETHICAIL performing its obligations and granting you rights under this Participant Agreement, you hereby grant ETHICAIL a non-exclusive and non-transferable license on a royalty free, world-wide, perpetual basis, to use and exploit the Participant Data provided by you for the Assessment, for the purposes of developing and providing the ETHICAIL Products and Service(s) and for the benefit of ETHICAIL, in accordance with this clause 5 and the confidentiality obligations of clause 9.

5.2 Notwithstanding anything to the contrary, ETHICAIL may use the Participant Data and any other information provided in connection with a Participant’s submission to any (current, past or future) Assessment(s) as a basis for compiling, developing and distributing the ETHICAIL Products and Service(s).

5.3 As part of ETHICAIL Products and Services and for research purposes the Data and/or its composing parts will be distributed as follows:

  • A Participant will be permitted to access its own Scorecard and (if applicable) Benchmark Report and other individual Data as per the Participant Agreement;
  • ETHICAIL may grant access to the Data or publish the Data as part of its Products and Services to any of its Investor Members, customers or other contract parties, as follows:
    • with respect to Participants that are not listed on a Stock Exchange: after explicit consent of the Participant is received.
    • with respect to Participants listed on a Stock Exchange: the Data is deemed to be public, and the consent of the Participant is not needed (except for Division level data of a Participating Organisation).
  • With respect to Data that is expressed as scores or indices, along with any other information provided in the Assessment, ETHICAIL is free to use all Data provided this Data cannot be traced back to a Participant’s individual assets.

5.4 While distributing in accordance with clause 5.3 ETHICAIL shall only disclose Participant Data at the level of the Participating Organisation. Disclosure of division level data of a Participating Portfolio shall only take place after explicit consent of the Participant.

5.5 New Participants can request a one-time grace period (‘Grace Period’), during the first year of being a Participant. During this Grace Period, ETHICAIL will not disclose that Participant’s Scorecard or Benchmark Report to any other party than the Participant itself. Investor Members, customers or other contract parties cannot request access to that Participant’s Scorecard or Benchmark Report. This Grace Period can only be requested by the new Participant giving explicit notice to ETHICAIL via the Portal, prior to it submitting its first Participant Data.

5.6 Both Parties agree to comply with their respective obligations under all applicable data protection and privacy laws and regulations. In as far as ETHICAIL is provided with personal data, ETHICAIL shall handle this data in accordance with its Privacy Statement.

5.7 As a Participant you will comply with any guidelines that we provide from time to time in relation to the manner in which we process Participant Data and/or provide the ETHICAIL Products and Service(s).

5.8 As a Participant you agree that we may include your name in any lists we may at our own discretion publish for promotional or other purposes from time to time.

6. YOUR OBLIGATIONS

6.1 As a Participant you shall cooperate with ETHICAIL and ensure that it supplies in a timely manner to ETHICAIL the data, information and documentation that are appropriate for or in connection with the operation of the Service.

6.2 You shall ensure that all data communicated is accurate, faithful and complete, and agrees not to post or transmit to ETHICAIL any unlawful, fraudulent, harassing, libelous, or obscene data.

6.3 You shall appoint an administrator for the account created on the Solution. Contact information of this administrator shall be visible to all Users that are part of the Assessed company’s ETHICAIL network.

6.4 As a Participant you warrant and undertake that:

  • You have full right and authority to enter into this Participant Agreement and to perform your obligations;
  • You have the right to provide the Participant Data that you supply under this Participant Agreement to ETHICAIL and neither this nor the resulting Data will in any way infringe any rights of any third-party;
  • You will use all reasonable endeavors to ensure that the Participant Data that you supply under this Participant Agreement is accurate and complete;
  • You shall not make any false or misleading statements about any information that you derive from the Data;
  • You shall not do anything which may damage the reputation of ETHICAIL, the Data or any of the ETHICAIL Products and Services;
  • You shall not use the Data or any of the ETHICAIL Products and Services for any purpose contrary to any law or regulation or any regulatory code or guidance;
  • You shall only use the Data or ETHICAIL Products and Services in accordance with the Participant Agreement;
  • Both Parties fully adhere to and comply with their respective national regulations and international standards and regulations on anti-slavery and anti-bribery.

6.5 As a Participant you undertake not to disclose any Participant Data of other Participants and/or Data to a third party other than in accordance with the terms of this Participant Agreement.

6.6 You will take adequate steps to ensure that you, your employees, consultants, officers and agents comply with this Participant Agreement and do not:

  • Make any part of the Data available to anyone, except as permitted under this Participant Agreement or authorized by ETHICAIL in writing;
  • alter or manipulate any part of the Data or other information provided in connection with the ETHICAIL Products and Service(s);
  • Provide ETHICAIL with any confidential information which might breach any legal or professional duty.

6.7 You will take steps to ensure that nobody other than your Authorized Representatives can access the Portal using your username and password.

6.8 As a Participant you will ensure that any consultants, employees, officers, subcontractors or other third parties that assist you with the submission of Participant Data to ETHICAIL, separately register in the Portal using ETHICAIL’s Access Tools.

6.9 As a Participant you acknowledge and accept that granting access to your Assessment submission using the Access Tool and the management of permissions granted for using the Access Tool is your own responsibility. ETHICAIL may rely on all Participant Data and information provided via the Access Tool being correct and complete.

6.10 Subject to clause 6.11 below, you will defend, indemnify and hold ETHICAIL harmless against any Losses suffered or incurred by ETHICAIL and/or our employees, consultants and/or licensors as a result of third-party claims, including legal expenses (reasonably and properly incurred), arising out of or in connection with your breach of this Participant Agreement.

6.11 In the event of any Losses pursuant to clause 6.10 above, resulting from a third-party claim:

  • ETHICAIL shall give you notice of any such third-party claim without delay;
  • ETHICAIL shall provide reasonable cooperation to you in the defense and settlement of such third-party claim;
  • You are given sole authority to defend or settle the third-party claim, provided you clearly communicate that you are handling the claim instead of ETHICAIL.

7. MEMBERSHIP PROVISIONS

7.1 All Participants join as a Member and shall appoint their Authorised Representatives for access to the ETHICAIL Products and Services. The Authorised Representatives may include:

  • An Account Manager (mandatory);
  • One or more internal contributors (mandatory);
  • One or more external contributors.

7.2 The initial Authorised Representatives will be communicated to ETHICAIL before the Participant Agreement becomes effective. The Participant shall annually update the Authorised Representatives before start of the Assessment. Authorised Representatives can be added or withdrawn at any time via the Portal. It is the Participant’s responsibility to keep the registration of the Authorised Representatives up to date.

7.3 Personal usernames and passwords will be provided to each Authorised Representative appointed in accordance with the previous section. These usernames and passwords may only be used by the Authorised Representatives, and may not be distributed to other employees, consultants or third parties. The Participant shall inform ETHICAIL immediately in case the employment of any of its Authorised Representatives is ended. ETHICAIL reserves the right to disable usernames and passwords at any time in the event of a breach of this provision.

7.4 The Participant shall endeavour, to the extent reasonably possible, to support ETHICAIL in media publications and/or investment conferences.

7.5 The Participant is entitled to apply for a seat on ETHICAIL’s governance groups.

7.6 Both during the term of the Participant Agreement and for a period of one (1) year after the Participant Agreement has ended for any reason whatsoever, both Parties are prohibited from (directly or indirectly) (a) actively enticing away, or (b) taking (or causing to take) into employment, secondment or other forms of cooperation, any of the other Party’s professionals, without the prior written consent of such Party. For the purpose of this clause ‘the other Party’s professionals’ shall mean: all employees and free lancers that have been working for this other Party or any of its affiliates, in the period of one year prior to the end of the Participant Agreement.

8. FEES AND PAYMENT

8.1. Use of the ETHICAIL’s Services and Solutions by the Participant is conditioned by the payment of all applicable fees, including a non-refundable, annual or multi-year subscription fee dependent on the plan that the Participant has selected, as detailed on ethicAil.com.

8.2 Use of the Assessment Solution is free, during the initial twelve (12) months only in the case where the initial subscription fee is paid by a Requesting company.

8.3 All payments are due upon receipt. Local taxes, including withholding tax shall be paid by the User or respectively shall be charged to the User and their amounts shall not be deducted from the subscription fee.

8.4 Subject to the Participant’s right to terminate this Agreement in accordance with Article 11, ETHICAIL reserves the right to revise its annual subscription fee schedule and/or implement a different pricing model or additional fees.

8.5 ETHICAIL reserves the right to increase the fees applicable in each calendar year. It will advise the Participant, on a best effort basis, at least ninety (30) days in advance of the end of a calendar year of any change pursuant to this clause.

8.6 ETHICAIL can increase fees on an annual basis to compensate for inflation. The basis for the inflation adjustment will be the UK Consumer Price Index (CPI).

8.7 In case ETHICAIL agreed to an initial term of 2 or 3 years, ETHICAIL has the option to increase the fees with a maximum of 10% per year (in addition to the inflation correction mentioned in 8.6) during this initial term.

8.8 ETHICAIL will invoice its fee annually per Assessment. For additional Products and Services that are to be delivered upon request only, the fee will be invoiced after the request is received.

8.9 All invoices are to be paid within 15 days of the invoice unless explicitly agreed otherwise. Additional external costs (such as bank costs) shall be borne by the Participant. ETHICAIL may request payment before delivery of the Products and Services. After 60 days ETHICAIL reserves the right the impose a 5% penalty on the full invoice amount.

9. CONFIDENTIALITY

9.1 The Parties acknowledge that– in the execution of the Participant Agreement – they will provide each other with Confidential Information (in this clause to be referred to as ‘Confidential Information’), meaning any information, however conveyed, or presented:

  • that relates to either Party’s trade secrets, customer or supplier details, business and business transactions, affairs, operations, know-how, personnel, and suppliers; and
  • that is clearly designated by a Party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential.

With respect to Participants partaking in the Responsible AI Assessment, all division level data of a Participating Organisation, submitted for the purpose of the Assessment, shall be considered as Confidential Information, unless it is anonymized and/or aggregated to the extent that it cannot be traced back to the Participant.

With respect to ETHICAIL: all information that relates to the methods, processes or techniques used to provide the ETHICAIL Products and Service(s) and the Data shall be considered as Confidential Information.

9.2 Unless otherwise permitted by this Participant Agreement, both Parties will ensure that they restrict disclosure of such Confidential Information to such of their employees, consultants or subcontractors as need to know for the purpose of discharging the obligations under this Participant Agreement and executing the license of clause 4.1. The Parties shall ensure that such employees, consultants, and subcontractors are subject to obligations of confidentiality corresponding to those which bind the Parties to this Participant Agreement.

9.3 Both Parties shall ensure that they and their respective agents, consultants and subcontractors shall, maintain in strict confidence and not divulge or communicate to anyone else any Confidential Information relating to the other party except as permitted by the Participant Agreement.

9.4 Both Parties shall implement all necessary technical and organizational measures and take any and all measures, including legal action, when necessary, to ensure the protection and secrecy of the Confidential Information and to prevent any theft, manipulation, distraction, unauthorized access or use of the Confidential Information.

9.5 More specifically ETHICAIL undertakes and shall procure that – except in cases of explicit consent of the Participant – it shall use the data of the Participant only for internal purposes, consisting of the activities of ETHICAIL and its subcontractors connected with (a) the Assessment process and (b) the anonymizing and aggregating of the Participant Data for use in its Products and Services.

9.6 The obligations of this clause 9 shall not apply to information which:

  • is already public knowledge, through no act or default of either Party;
  • either Party is required to divulge by any law or legally binding order or ruling of any Court, tribunal, stock exchange, administrative, regulatory or governmental authority with competent jurisdiction;
  • was known to the recipient before the date of disclosure (as proven by written evidence) without obligations of confidentiality;
  • was subsequently obtained by the recipient from someone else without that person breaching any obligations of confidentiality that they have to either you or us.

9.7 Both Parties undertake to inform the other Party without delay – by e-mail – of any breach of this clause 9 as the Party may be aware of and to provide all possible assistance to minimize the effects of such breach.

10. INTELLECTUAL PROPERTY

10.1 As a Participant you shall retain ownership of the IPRs (if any) in the Participant Data submitted by you.

10.2 Without prejudice to our legal obligations regarding data protection, as a Participant you consent to ETHICAIL, both for the term of this Participant Agreement and afterwards (with due observance of clauses 4 and 9):

  • processing and dealing with Participant Data submitted by you in any way required for ETHICAIL to provide both current and future ETHICAIL Products and Service(s);
  • incorporating Participant Data into Data, Databases and/or other ETHICAIL Products and Service(s) in existence now or proposed to be in future;
  • making Participant Data available as part of any of ETHICAIL Products and Service(s) of any kind that we may provide from time to time in connection with the Assessment.

10.3 Subject to clause 12, ETHICAIL warrants that you will not infringe any third party IPRs by using the Scorecard and Benchmark Report in accordance with the terms of this Participant Agreement. ETHICAIL will indemnify you against any Losses you may validly incur as a result of any claim that the use of the Data by you infringes any third party IPRs, provided you notify ETHICAIL promptly of any such claim being made.

10.4 In the event of a claim made pursuant to clause 10.3 above:

  • You shall give prompt notice of any such claim;
  • You shall provide reasonable cooperation to ETHICAIL in the defense and settlement of such claim;
  • ETHICAIL is given sole authority to defend or settle the claim.

10.5 If any claims are made, or in ETHICAIL’s reasonable opinion are likely to be made, by any third party pursuant to clause 10.3 above, ETHICAIL may at its sole option and expense:

  • procure for you the right to continue using the relevant Data (or any part of it) in accordance with the terms of this Participant Agreement;
  • modify the relevant Data to avoid infringement or replace the relevant Data with non- infringing materials, whilst still providing the same, or substantially similar, functionality to the infringing materials.

10.6 Subject to any underlying rights you hold under clause 10.1, you acknowledge that any and all (claims to) current and future IPRs in or related to the Data, the Database, the ETHICAIL Products and Service(s) and/or any other products or service(s) that are created by ETHICAIL using the Participant Data are the exclusive property of ETHICAIL and its licensors. For clarity, ETHICAIL’s IPRs shall include but not be limited to the content and format of the ETHICAIL Website and Portal and any Products and Service(s) provided to Participants during the course of the Assessment, and other services.

10.7 You acknowledge that, in respect of any third party IPRs licensed by ETHICAIL, your use of any such IPRs is conditional on ETHICAIL obtaining a written license from the relevant licensor (“Third- Party License”) on such terms as will entitle ETHICAIL to license such rights to you. In the event that the Third-Party License is terminated, suspended, expires or is otherwise no longer in place for any reason, ETHICAIL may immediately and without any liability to you either (i) terminate or suspend your use of any such third-party IPRs, or (ii) terminate this Participant Agreement.

10.8 ETHICAIL may terminate this Agreement immediately on notice, if you challenge the validity of any of the rights of ETHICAIL and/or its licensors set out above.

11. TERM AND TERMINATION

11.1 Unless otherwise agreed, this Participant Agreement will come into force on the Start Date and will continue for a period of 12 months. The Participant Agreement shall automatically be renewed annually, for consecutive periods of twelve (12) months, unless either Party gives written notice to the other Party, not less than sixty (60) days prior to the end of the calendar year involved. Notwithstanding the above, it is hereby understood that in case ETHICAIL agreed to an initial term of three (3) years, the Participant Agreement will come into force on the Start Date and will continue until December 31st of the third subsequent calendar year. Following this initial term, this Participant Agreement shall be renewed for consecutive periods of three (3) years, unless either Party gives written notice to the other Party, not less than sixty (60) days prior to the end of the third subsequent calendar year.

11.2 The Participant can partially terminate this Participant Agreement for one or more Divisions, in which case this clause 11 applies to the partial termination. If partially terminated the Participant is obligated to pay a minimum fee calculated as 50% of the first year Assessment submission number multiplied by the relevant multiyear fee. For clarity, partial termination will apply only to Participants submitting multiple Participating Organisation Divisions.

11.3 Without prejudice to clause 11.4 below, ETHICAIL reserves the right to immediately and without notice suspend access to ETHICAIL Products and Services in the event ETHICAIL reasonably suspects a material breach of this Participant Agreement.

11.4 Notwithstanding the above, the Participant Agreement may be terminated immediately by either Party:

  • if the other Party is in material breach of any of the terms of the Participant Agreement, if such a breach is not remedied within a period of twenty (20) working days after written notice of it has been given to the Party in breach.

11.5 ETHICAIL may terminate this Participant Agreement immediately by giving written notice if ETHICAIL ceases undertaking the Assessment(s) and/or if ETHICAIL ceases to provide the ETHICAIL Products and Service(s).

11.6 Termination will not affect any part of this Participant Agreement which expressly or by implication is intended to survive termination.

11.7 If the Participation Agreement is terminated by either party ETHICAIL reserves the right to withdraw the Participant’s user and access rights to the Portal. The Participant will have 30 days from termination to extract their Assessment, Benchmark Report/s or other Data from the Portal.

12. DISCLAIMER AND LIABILITY

12.1 ETHICAIL provides you with no warranty or assurance in respect of the Data and the ETHICAIL Products and Service(s), except as set out in clause 10.3 above. WITHOUT LIMITATION OF THE FOREGOING SENTENCE, ETHICAIL DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

12.2 This clause 12 sets out ETHICAIL’s entire financial liability (including any liability for the acts or omissions of its employees, agents, contributors, consultants, and sub-contractors) to you in respect of:

  • any breach of this Participant Agreement;
  • any use made by you of the ETHICAIL Products and Service(s) or any part of them;
  • any representation, statement or tortious act or omission (whether negligent or otherwise) arising under or in connection with this Agreement and/or use made by you of the ETHICAIL Products and Service(s).

12.3 ETHICAIL provides the Data in good faith, but you acknowledge that as the Data may include or refer to data that is provided by third parties, ETHICAIL is not able to control or verify the accuracy or completeness of such data. While ETHICAIL agrees to use reasonable skill and care in the collection and processing of the Data:

  • ETHICAIL provides no warranty or representation (whether express or implied) about the accuracy or fitness for any particular purpose of the Data or the Assessment(s);
  • ETHICAIL shall not be liable for any inaccuracy, incompleteness or error in the Data or the Assessment(s) which arises as a result of data input, instructions or scripts provided by you or any third party appointed by you to provide Participant Data on your behalf.
  • You acknowledge that systems that use empirical data and/or statistical data and/or data modelling techniques to provide indicative and/or predictable data, cannot be taken as a guarantee of any particular outcome.

12.4 While every care has been taken in the development of the Website and the Portal, ETHICAIL cannot be held liable for the consequences of actions taken on the basis of information obtained on the Website or the Portal. You agree and acknowledge that the ETHICAIL Products and Service(s) are not intended to be used as the sole basis for any business decision, that you use the Data at your own risk and on an “as is” basis and that you will not use the Data as the sole basis for any business decision.

12.5 Except as provided in clause 10.3 above:

  • ETHICAIL shall not be liable, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, and whether arising out of or in connection with this Participant Agreement or any other agreement, for any loss of profits, loss of business, depletion of goodwill or similar losses or pure economic loss, or for any special, indirect, or consequential loss, costs, damages, charges or expenses however arising; and
  • Except for liability for death or injury, for fraud of fraudulent misrepresentation or for gross negligence or willful intent, ETHICAIL’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of this Participant Agreement shall be limited to the aggregate amount that is covered by ETHICAIL’s liability insurance.

12.6 Neither Party shall incur liability under this Participant Agreement in as far as it is prevented from or delayed in performing its obligations under the Participant Agreement by acts, events, omissions or accidents beyond its reasonable control or responsibility, including without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.

12.7 ETHICAIL shall not be liable to you in the event that the performance of any of its obligations under this Participant Agreement is prevented, disturbed or delayed by any act or omission on your side.

13. NOTICES

13.1 Any notice or other communication required to be given to a Party under or in connection with this Participant Agreement shall be in writing and shall be delivered to the other party (a) personally or sent by prepaid first-class post or international post or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or (b) sent by e-mail, in case of ETHICAIL to the address: [email protected] only.

14. GENERAL

14.1 ETHICAIL Products and Service(s) continue to evolve in the light of business, market and technical developments. Accordingly, ETHICAIL reserves the right to make improvements, substitutions, modifications, and to add or remove some elements of the ETHICAIL Products and Service(s). You acknowledge that ETHICAIL shall not be liable to you or to any third party for any modification, discontinuance, or suspension of the ETHICAIL Products and Service(s).

14.2 ETHICAIL reserves the right, in its own and absolute discretion, to change these T&Cs, by notifying you upon login of the Portal or by post or e-mail. Amendments will be applicable from your first login to the Portal following publication. Your continued use of the ETHICAIL Products and Service(s) after the posting of the amended T&Cs means that you accept these changes. In case the Parties agreed upon certain custom-made amendments or exceptions to the T&Cs, these will continue to apply to any new version of the T&Cs, provided the relevant clause of the T&Cs remained (materially) unaltered.

14.3 You consent to ETHICAIL assigning or subcontracting any or all of our rights and obligations under this Participant Agreement to any third party or agent.

14.4 Third Parties: A person who is not a party to this Participant Agreement shall not have any rights under or in connection with this Agreement.

14.5 Governing law and jurisdiction: This Participant Agreement, and any dispute or claim arising out of or in connection with it are governed by the laws of England. The competent court in England shall have exclusive jurisdiction to settle any dispute in connection with this Participant Agreement without prejudice to the right of appeal.

14.6 This Participant Agreement constitutes the entire agreement between ETHICAIL and you and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between ETHICAIL and you relating to its subject matter, whether written or oral, and without prejudice to the generality of the foregoing. No general terms and conditions of the Participant shall apply to this Participant Agreement.

14.7 If any provision (or part of a provision) of this Participant Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force. The Parties shall negotiate in good faith to replace the invalid, unenforceable or illegal provision by a provision that gives effect to the commercial intention of the parties.

14.8 Unless specifically provided otherwise, rights arising under this Participant Agreement are cumulative and do not exclude rights provided by law.

14.9 Each party shall use all reasonable endeavours to procure that any necessary third party shall execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Participant Agreement.

Updated: January 2024

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