Utility3 Ltd API TERMS OF SERVICE

INTRODUCTION

This Agreement (comprising the Plan you select via the Portal and these Terms of Service) sets out the terms and conditions upon which you may use the Service and any application or functionality Utility3 makes available through the Service.

By creating an account, checking a box, or otherwise accessing the Utility3 API, SDKs, models or developer portal, you agree to and accept these Terms of Service and your Plan. If the individual accepting these Terms of Service and any Plan is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to these terms, in which case the terms "Customer" and "you" shall refer to such entity.

1. INTERPRETATION

1.1 In these Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:

"Agreement" means the agreement between the Customer and Utility3, comprising the Plan and these Terms of Service, for the provision of the Service;

"AI System" means Utility3's artificial intelligence system that (i) generates content (text, voice, image and video); (ii) enables the creation of synthetic characters; (iii) creates digital twins of real-world creators; and (iv) the optimisation and utility of the Models through reasoning, prompt creation, moderation and vision comprising: (a) Utility3 Software; (b) the Third Party Software and (c) the Model;

"AI System Data" means content, data and metadata processed or produced by and/or resulting from the Customer's or End User's use of the AI System, including the analysis, selection, adaptation, modification or other processing of the Customer Materials which are processed through, stored, contained or embedded in the AI System or its underlying Model, including without limitation any annotated, labelled, analytical, statistical, anonymised and aggregated data;

"AI System Output" means the AI System Data and any output created or developed by, or arising out of or as a result of, the use of the AI System by the Customer or its End Users, and all materials and works embodying such outputs, including any work or materials that Utility3 generates or will generate (or will have generated on its behalf) for or related to the Customer or End Users using such outputs;

"API" has the meaning given to it in clause 3.1;

"Business Hours" means the hours 9 am to 5 pm local time in England, Monday to Friday, except for public holidays;

"Circumvention" means, directly or indirectly: (a) entering into any agreement or arrangement with a Model Provider to obtain Restricted Services other than via Utility3; (b) soliciting, inducing or encouraging any Model Provider to provide Restricted Services to Customer other than via Utility3; or (c) using Utility3's Confidential Information, Documentation, or information obtained through the Services (including technical integrations, commercial terms, prompts, workflows or know-how) to do any of (a) or (b).

"Confidential Information" means information which is identified as confidential or proprietary by either party, or by the nature of which is clearly confidential or proprietary;

"Creator" means the content creators who use the Customer Applications to post and/or create content and or interact with users of the Customer Application;

"Customer" or "you" means the company or individual identified in the Customer's account within the Portal;

"Customer Application" has the meaning given to it in clause 3.1;

"Customer Data" means the content and data that the Customer or any End Users make available to Utility3 and that is hosted by Utility3 in connection with the provision of the Service;

"Customer IP" means all IPRs in the Customer Data and the Customer Materials;

"Customer Materials" means any data, content and other materials provided or made available by or on behalf of the Customer and its End Users to Utility3 and/or the AI System, or otherwise as part of the Services, under or in connection with this Agreement including original or raw data inputted by the Customer into the AI System;

"Documentation" means, in any written or electronic form, all documentation, manuals, technical information and instructions which are related to the AI System to be provided by or on behalf of Utility3 to the Customer to accompany the AI System;

"Embedded Customer Materials" means any and all Customer Materials that are, have or are likely to have become, incorporated in, embedded within, or otherwise part of, Utility3 Software;

"Effective Date" means the earlier of: (a) the date that Customer first accesses the Service through any online registration or plan selection process; or (b) any commencement date shown in the Portal for the relevant Plan;

"End User" means a person who is authorised by the Customer to access the Service (including Creators and individual end users of the Customer);

"Fees" means the fees for Services as set out for your selected Plan in the Portal;

"IPRs" means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

"Model" means Utility3's proprietary model, developed by or on behalf of Utility3 and used in connection with the provision of the Services, including, if present, associated configuration, parameters, machine learning model architectures and weights (in source code and object code formats);

"Model Provider" means any third party provider (and its Affiliates) of models, inference, generation, hosting, tooling, software or other technology that is (a) made available through the Services (including as Third Party Software), and/or (b) engaged by Utility3 (directly or indirectly) in connection with the provision of the Services.

"Plan" means the pricing and usage option the Customer selects via the Portal (for example, pay-as-you-go or monthly retainer with credits), referencing these Terms of Service;

"Portal" means Utility3's self-serve API portal or developer portal through which the Customer creates an account, selects a Plan, and manages billing and usage;

"Restricted Services" means services that are the same as, substantially similar to, or substitutable for the Services (or any material part of them), including model inference and AI content generation services.

"Services" means access to and use of the current version of the AI System to facilitate the End User's experience on a Customer Application;

"Support Services" has the meaning given to it in clause 10.7;

"Talent Agreement" means the end user licence agreement to be entered into between Creators and Utility3, available at [INSERT LINK] (as amended from time to time);

"Term" means the period beginning on the Effective Date and continuing until this Agreement is terminated in accordance with clause 11;

"Terms of Service" means these terms and conditions of service, as amended from time to time;

"Third Party Sites" has the meaning given to it in clause 4.3;

"Third Party Software" means existing third party software owned by third parties and any updates (including software maintenance updates, patches or bug fixes), upgrades (including any versions or releases of that software intended to have new or improved functionality), and relevant documentation, specifications and user manuals for that third party software, including (without limitation) that third party software supplied as part of, or in addition to, the AI System;

"User Account" means an account set up by the Customer with an ID and password that an End User uses to access the Service;

"Utility3 IP" means the IPRs in the AI System owned or licensed by Utility3;

"Utility3 Materials" means the AI System, and all other software, data, calculations, algorithms, methods, information, Documentation, and other materials created or supplied by or on behalf of Utility3 to the Customer, including any improvement, modification, adaptation, enhancement, alteration or derivative of, or derivative work from, the same;

"Utility3 Policies" means the policies as communicated to the Customer from time to time;

"Uptime Rate" means the figure calculated by subtracting from one hundred percent (100%) the percentage of minutes during a calendar month in which all End Users do not have any access to the Services due to a technical fault, excluding any unavailability, degradation, or failure described in clause 10.2;

"Utility3 Software" means Utility3's proprietary software including the Model, and all updates, including software maintenance updates, patches and/or bug fixes, upgrades (including any versions or releases of the software intended to have new or improved functionality) and Documentation related thereto;

"VAT" means value added tax (and any equivalent tax payable in any jurisdiction); and

"Virus" means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices.

2. DURATION

2.1 The Agreement shall commence on the Effective Date and, subject to earlier termination in accordance with clause 11, shall continue until terminated as follows:

(a) Pay-As-You-Go Plan: no minimum term; the Customer may stop using the Service at any time by disabling API keys and/or closing the account, and Utility3 may terminate in accordance with clause 11.

(b) Monthly Retainer Plan (credits): month-to-month, renewing automatically on the first day of each Billing Period unless terminated by either party on at least fourteen (14) days' notice prior to the next Billing Period. "Billing Period" means a monthly period beginning on the date specified in the Portal for the Plan.

3. ACCESS TO THE SERVICE

3.1 Utility3 grants the Customer a non-exclusive, non-transferable licence for the Term to access, use, and permit End Users to access and use the Services, in accordance with and subject to the terms and conditions of the Agreement. This includes the right to use Utility3's application programming interfaces ("APIs") to integrate the Services into your applications, products, or services (each a "Customer Application") and to make Customer Applications available to End Users.

3.2 You may not sublicense the rights granted to you in clause 3.1 other than to allow End Users to access and use the Service from Customer Applications.

3.3 You must provide accurate and up-to-date account information. You are responsible for all activities that occur under your account, including the activities of any End User who accesses the Services through your Customer Application. You may not make account access credentials available to third parties, share individual login credentials between multiple users on an account, or resell or lease access to your account or any End User Account. You will promptly notify us if you become aware of any unauthorised access to or use of your account or our Services.

3.4 The Customer shall ensure that all Creators agree to the terms as set out in the Talent Agreement prior to using the Services.

3.5 The Customer shall use the Services in accordance with Utility3 Policies and shall ensure that its End Users are aware of and comply with the terms of any applicable Utility3 Policies when using the Services.

3.6 You are responsible for making all arrangements necessary for End Users to gain access to the Service.

3.7 The Customer shall indemnify and defend Utility3, and its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable legal fees) arising out of a claim brought by an End User or any other third party relating to the Customer's use of the Service (except to the extent caused by Utility3's negligence).

4. CUSTOMER'S OBLIGATIONS

4.1 The Customer:

(a) must comply with all applicable laws and Utility3 Policies with respect to its use of the Service and its activities under the Agreement;

(b) must notify Utility3 in writing if there are any changes to any of the Customer's contact details as set out in the Customer's account within the Portal;

(c) must ensure that its network and systems, including its internet browser and operating systems, comply with any relevant specifications provided by Utility3 in writing (including e-mail) from time to time;

(d) is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Service; and

(e) must not do, or allow any End Users or other persons to do, any of the following:

(i) access, store, distribute, or transmit any Virus through the Service;

(ii) use the Service to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive;

(iii) use the Service in a manner that is illegal or causes damage or injury to any person or property;

(iv) use any automated system, including without limitation "robots", "spiders", or "offline readers", to access the Service in a manner that sends more request messages to the Service than a human can reasonably produce in the same period of time by using a conventional online web browser;

(v) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, engage in model extraction or stealing attacks or distribute all or any portion of the Service in any form or media or by any means or otherwise attempt to discover the source code or underlying components of the Services, algorithms, and systems of the Services (except to the extent these restrictions are contrary to Applicable Law);

(vi) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Service;

(vii) access all or any part of the Service in order to build a product or service which competes with the Service, or use or attempt to use the Service to directly compete with Utility3 or use AI System Output to develop any artificial intelligence models that compete with Utility3's products and services;

(viii) attempt to interfere with or compromise the integrity or security of the Service;

(ix) use the Services or Customer Materials in a manner that infringes, misappropriates, or otherwise violates any third party's rights;

(x) send Utility3 any personal information of children under 13 or the applicable age of digital consent or allow minors to use our Services;

(xi) use any method to extract data from the Services other than as permitted through the APIs; or

(xii) buy, sell, or transfer API keys from, to or with a third party.

(xiii) Non-circumvention. During the Term and for twelve (12) months thereafter (the "Restricted Period"), Customer must not engage in any Circumvention.

(xiv) Liquidated damages. If Customer breaches the non-circumvention obligation above, Customer shall pay Utility3, as liquidated damages (and not as a penalty), an amount equal to the greater of: (a) four (4) times the Fees paid or payable by Customer under the Agreement in the twelve (12) months immediately preceding the date the Circumvention first occurs (the "Trailing 12-Month Fees"); or if Customer has been party to the Agreement for less than twelve (12) months, four (4) times the Fees paid or payable from the Effective Date up to the date the Circumvention first occurs, annualised to a 12-month period by multiplying that amount by 12 and dividing by the number of months elapsed; and (b) USD $75,000.

(xv) Customer acknowledges and agrees that Utility3's losses arising from Circumvention would be difficult to quantify precisely and that the liquidated damages set out above represent a genuine pre-estimate of loss and a proportionate protection of Utility3's legitimate interests.

(xvi) Equitable relief; survival. Customer agrees that damages alone may be an inadequate remedy for breach of the non-circumvention obligation. Utility3 may seek injunctive or other equitable relief. The non-circumvention obligation survives expiry or termination of the Agreement.

and Utility3 reserves the right, without liability or prejudice to its other rights under the Agreement, to disable access to all or any part of the Service by any End User, for any breach of any provision of this clause 4.1(e).

4.2 Utility3 may monitor the Customer's and End Users' use of the Service to ensure the quality of, and improve, the Service, and verify the Customer's compliance with the Agreement.

4.3 The Service may contain links to, or call the servers of, third party websites, data or services that are not under Utility3's control, solely at the direction of and/or as a convenience to the Customer ("Third Party Sites"). As such, Utility3 is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the Customer's risk.

5. AUDIT

5.1 Utility3 may, on reasonable written notice to the Customer, during Business Hours, audit the Customer's use of the Service and its compliance with the Agreement. The Customer will grant to Utility3, or its agent or representative, all necessary access rights to the Customer's premises, records or to any computer hardware belonging to or under the control of the Customer to allow such audit to be carried out and shall furnish Utility3, its agent or representative, with such information in respect of the use of the Service as Utility3 may reasonably require.

5.2 If any audit pursuant to clause 5.1 or otherwise reveals any use of the Service not in accordance with the Agreement, without prejudice to any remedies Utility3 may have in respect of a breach by the Customer of its obligations under the Agreement, the Customer shall, within thirty (30) days of receipt of an invoice for the same, pay to Utility3 its reasonable fees and expenses incurred in carrying out the audit.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Utility3 is the owner or licensee of Utility3 IP, Utility3 Materials and any other IPRs made available to the Customer by or on behalf of Utility3 in connection with this Agreement. Modifications and enhancements to Utility3 IP shall form part of the Utility3 IP. Except as expressly set out in this Agreement, Utility3 does not grant to the Customer any rights to or licences in respect of the Utility3 IP.

6.2 The Customer is the owner or licensee to the Customer IP. Modifications and enhancements to Customer IP shall form part of the Customer IP.

6.3 The Customer hereby grants to Utility3 a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, transferable licence, with the right to sub-license, of the Customer IP to use, reproduce, modify and exploit:

(a) the Customer Materials (including the Embedded Customer Materials) for the purposes of:

(i) performing the Utility3's obligations, and receiving the benefit of the rights granted to Utility3, under this Agreement; and

(ii) training, developing and improving the AI System, including the Model, and any other AI products or services of Utility3.

(b) the Embedded Customer Materials for the purposes of commercialising (including providing, selling, licensing), protecting, supporting and maintaining the AI System, including with Utility3's existing and future customers, clients, partners and/or collaborators.

6.4 The Customer represents and warrants to Utility3 that it has the necessary right, title, interest and consent, in each case as necessary to allow Utility3 to use the Customer Data in accordance with this Agreement. The Customer shall maintain a backup of the Customer Data and Utility3 shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Customer Data.

6.5 Each party shall indemnify the other party and its affiliate(s) (each an "Indemnified Party") against all liabilities, costs, expenses, and damages suffered or incurred by the Indemnified Party arising out of or in connection with any claim made against the Indemnified Party for actual or alleged infringement of a third party's Intellectual Property Rights or other rights arising out of or in connection with an Indemnified Party's use of the indemnifying party's Intellectual Property Rights or (where Utility3 is the Indemnified Party) Customer Data.

6.6 Utility3 welcomes regular feedback from Customers in relation to the Service. By submitting feedback, the Customer acknowledges that Utility3 may use and allow others to use this feedback in the Service or otherwise without any restriction and without payment of any kind to the Customer.

7. DATA PROTECTION

7.1 For the purpose of this clause 7 the terms "controller", "personal data", and "processes" shall have the same meaning as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.

7.2 Each party shall comply with its obligations under Data Protection Laws.

7.3 If and to the extent that Utility3 processes any personal data on behalf of the Customer as a processor or sub-processor, as a result of hosting the Customer Data or otherwise as a result of the Customer's use of the Services, the parties shall enter into a data processing agreement in the form set out in Schedule 1.

7.4 If and to the extent that Utility3 processes any personal data as a controller of that personal data, the Customer shall (i) provide the End User with any documentation required; and (ii) obtain any necessary consents from the End User; that Utility3 requires to be compliant with applicable laws.

8. CONFIDENTIAL INFORMATION

8.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party's lawful possession before the disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.

8.2 Each party shall hold the other party's Confidential Information in confidence and, unless required by law, shall not make the other party's Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.

8.3 Each party shall take all reasonable steps to ensure that the other party's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

8.4 Each party shall take a backup of its own Confidential Information and shall not be responsible to the other party for any loss, destruction, alteration, or disclosure of Confidential Information.

9. FEES AND PAYMENT

9.1 The Customer will pay the Fees as set out for the selected Plan in the Portal. For Portal Plans, the Customer must maintain valid payment card details on file. Charges will be made automatically as described in this clause 9.

9.2 Pay-As-You-Go Plans: Fees for usage are charged automatically to the Customer's payment method on file as usage occurs or on a periodic basis (e.g., daily or monthly), as indicated in the Portal. If a charge attempt is declined and not successfully retried, the Service (including API access) may be automatically suspended until payment is successful.

9.3 Monthly Retainer Plans (credits): the monthly retainer Fee is charged automatically at the start of each Billing Period. Any usage in excess of the included credits will be calculated and added to the next Billing Period's charge. If the charge attempt is declined and not successfully retried, the Service (including API access) may be automatically suspended until payment is successful.

9.4 Statements and invoicing. Utility3 may issue receipts or statements via the Portal and/or email; formal invoicing is not required for Portal Plans. Where Utility3 separately invoices for any add-on professional services expressly agreed in writing, such invoices are payable within thirty (30) days of the invoice date. Utility3 may charge interest and collection costs on overdue invoiced amounts as set out in clauses 9.5(a)–(b).

9.5 Overdue invoiced amounts (if any).

(a) Interest shall accrue on overdue invoiced amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the due date for payment, commencing on the due date and continuing until paid in full, whether before or after judgment.

(b) The Customer shall reimburse Utility3 for all reasonable costs and expenses (including reasonable lawyers' fees) incurred by Utility3 in collecting any overdue invoiced amounts.

9.6 Taxes and currency. Unless otherwise expressly stated in the Portal or agreed in writing by Utility3, all amounts and Fees stated or referred to in the Agreement are payable in United States Dollars (USD) and are exclusive of VAT (or any equivalent tax) which, where applicable, shall be charged at the applicable rate and paid at the same time as the Fees.

9.7 Price changes and renewals. Unless otherwise set out in the Portal, Fees for any month-to-month renewal or continued use will be at Utility3's then-current rates, irrespective of any promotional or discounted pricing in a prior Billing Period.

10. AVAILABILITY & SUPPORT

10.1 Utility3 shall make the Services available with an Uptime Rate of 99%, except for:

(a) planned maintenance for which seventy-two (72) hours' notice will be given; and

(b) unscheduled, emergency maintenance during Business Hours or otherwise, for which Utility3 will use reasonable endeavours to give the Customer advance notice.

10.2 Exclusions from Uptime Rate. For the purposes of calculating the Uptime Rate, uptime shall exclude any unavailability, degradation, or failure resulting from:

(a) planned or scheduled maintenance, whether or not advance notice is provided;

(b) emergency or unscheduled maintenance;

(c) unavailability, degradation, or failure of specific models, features, or endpoints where other models or Services remain accessible;

(d) rate limiting, quota enforcement, abuse detection, fraud prevention, security controls, or enforcement of Utility3 Policies;

(e) failures of third-party infrastructure, networks, cloud providers, hosting providers, or upstream Model Providers;

(f) Customer code, integrations, SDK usage, misuse, misconfiguration, or Customer systems or networks;

(g) beta, preview, experimental, or non-generally available features; or

(h) any event or circumstance outside of Utility3's reasonable control.

10.3 Where the Uptime Rate of the Services in any calendar month falls below the following percentage Uptime Rates, the Customer shall be eligible to receive the following service credits (which shall be calculated as a percentage of the Fees incurred or payable for the relevant calendar month):

(a) Uptime Rate of less than 99% but more than or equal to 98.5%: 2.5%;

(b) Uptime Rate of less than 98.5% but more than or equal to 98%: 5%; or

10.4 To be eligible to receive any service credit that may be available in respect of any unavailability of the Services, the Customer shall notify Utility3 in writing within five (5) Business Days of the date on which such unavailability occurred and provide Utility3 with the dates and times thereof.

10.5 If the Uptime Rate in any three (3) calendar months in a period of four (4) consecutive months is less than 98%, Customer may terminate this Agreement provided that:

(a) The Customer has given Utility3 written notice specifying the failure;

(b) Utility3 has been given a remediation period of thirty (30) days to cure the failure; and

(c) The failure is not caused by any of the exclusions set out in clause 10.2, including without limitation third-party outages, regulatory or legal action, or security incidents requiring protective shutdown of the Services.

10.6 Exclusive Remedy. Service credits are the Customer's sole and exclusive remedy for any failure by Utility3 to meet the Uptime Rate or availability obligations set out in this Agreement.

10.7 Eligibility. No service credits shall be available if, at the time of the relevant unavailability or failure, the Customer:

(a) is in breach of this Agreement;

(b) is past due on any Fees; or

10.8 Cap on Service Credits. The total amount of service credits issued to the Customer in any rolling twelve (12) month period shall not exceed twenty percent (20%) of the total Fees paid by the Customer in that period.

10.9 The parties acknowledge that the value of any service credits available under this Agreement is reasonable and proportionate to protect the Customer's legitimate interest in the proper performance of the Services.

10.10 Once their value has been determined by Utility3, any service credits shall be shown as a deduction from the amounts due from the Customer to Utility3 in the next charge then due to be issued under this Agreement. Utility3 shall not in any circumstances be obliged to pay any money or make any refund to the Customer.

10.11 Utility3 will, as part of providing the Services, provide basic support services to the Customer (the "Support Services") which shall be included in the Fee. However, Support Services shall exclude technical and integration services which will be charged on Utility3's then current hourly rates. The Customer shall provide all support reasonably required by Utility3 to perform the Support Services, including providing reasonably detailed descriptions of issues and updates on the performance of the Services. Utility3 does not guarantee response times, resolution times, or availability of Support Services, and Support Services are provided on a commercially reasonable efforts basis only.

10.12 Scope of SLA. The availability commitments and service credits set out in this clause 10 apply solely to the availability of the Services and do not apply to, and expressly exclude, any issues relating to:

(a) accuracy, completeness, or correctness of AI System Output;

(b) latency, throughput, response times, or response quality;

(d) availability, removal, or moderation of Creator content; or

(e) regulatory, legal, or policy-based takedowns or restrictions.

11. SUSPENSION AND TERMINATION

11.1 Non-payment (Portal Plans): Without prejudice to any other rights or remedies available to Utility3, if Utility3 is unable to successfully charge the Customer's payment method for Fees due under the Plan after one or more retries, Utility3 may immediately suspend the Service (including API access). If payment remains unsuccessful for seven (7) days after Utility3 notifies the Customer (via email and/or in-product notices), Utility3 may terminate the Agreement on notice, without liability to the Customer.

11.2 Without prejudice to any other rights and remedies available to Utility3, Utility3 may terminate the Agreement by notice with immediate effect, or such notice as Utility3 may in its sole discretion elect to give, if the Customer:

(a) infringes any Utility3 IP;

(b) is in breach of clauses 4.1(e), 8 or 9; or

11.3 Utility3 may immediately suspend the Customer's or any End User's right to access and use the Service without prior notice if:

(a) the Customer is in material or persistent breach of any of the terms of the Agreement; or

(b) in Utility3's reasonable determination, the Customer is suspected of being in material breach of any of the terms of the Agreement,

and for the purposes of this clause 11.3, the parties acknowledge that any breach of clauses 4.1(e) or 8 will be a material breach of the Agreement.

11.4 Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:

(a) is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within thirty (30) days after receiving written notice requiring it to remedy the breach; or

(b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

11.5 On termination of the Agreement for any reason:

(a) all rights and licences granted to the Customer under the Agreement shall immediately terminate and the Customer's right to access and use, and grant End Users the right to access and use the Service will end;

(b) each party shall return to the other party or (at the other party's request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority).

11.6 Utility3 shall permit the Customer to download any Customer Data from the Service for a period of fourteen (14) days after the expiry or termination of the Agreement. Utility3 may thereafter:

(a) delete any Customer Data at any time; or

(b) retain Customer Data upon expiry or termination of the Agreement in order to comply with applicable law, as Utility3 may deem necessary to prosecute or defend any legal claim (in which case Utility3 may retain Customer Data for a reasonable period of time pending resolution of such obligation or issue), or to use the Customer Data in accordance with the licence in clause 6.3.

11.7 Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.

11.8 Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiry or termination of the Agreement shall survive and continue in full force and effect.

12. LIMITED WARRANTY

12.1 Utility3 undertakes to make the Services available as set out in clause 10.1.

12.2 Other than as set out in clause 12.1, the Service is provided on an "as is" basis and Utility3 gives no representations, warranties, conditions or other terms of any kind in respect of the Service, whether express or implied, including (but not limited to) warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement.

12.3 Except as expressly provided for in the Agreement:

(a) all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and

(b) Utility3 will not be responsible for any interruptions, delays, failures, or non-availability affecting the Service or the performance of the Service which are caused by third party services (including Third Party Sites and Third Party Software), errors or bugs in Third Party Software, hardware, or the Internet on which Utility3 relies to provide the Service, or any changes to the Service made by or on behalf of the Customer, and the Customer acknowledges that Utility3 does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.

12.4 AI-Specific Disclaimers. Without limiting the generality of the foregoing, Utility3 makes no warranty or representation regarding the accuracy, reliability, quality or suitability of any AI System Output, including that such output will be free from errors, hallucinations, bias, or interruptions, or that any content will remain available or unmodified.

13. LIABILITY

13.1 Subject to clause 13.2, neither party will be liable to the other party, whether in contract, tort (including negligence) or otherwise, for: (a) any loss of profit, goodwill, business, business opportunity, revenue, turnover or reputation, anticipated saving or wasted expenditure (in each case whether direct or indirect); or (b) any special, indirect or consequential damage or loss, costs or expenses.

13.2 Nothing in the Agreement excludes or limits: (a) either party's liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, breach of clause 8, or for any other liability that cannot be excluded under applicable laws; (b) either party's liability to the other under their indemnification obligations in this Agreement; or (c) Customer's liability to Utility3 for breach of clause 4.1(e).

13.3 Subject to clause 13.2, Utility3's total liability in contract, tort (including negligence) or otherwise for any and all claims arising under or in connection with the Agreement shall in all circumstances be limited in aggregate to 200% of the Fees paid by the Customer.

13.4 Service Credits. Service Credits are not damages and shall not be taken into account when calculating Utility3's liability cap under this Agreement.

14. MODIFICATIONS

14.1 The Customer recognises that Utility3 is always innovating and finding ways to improve the Service with new features and services. The Customer therefore agrees that the Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Service.

14.2 Utility3 may revise these Terms of Service from time to time. The changes will not be retroactive, and the most current version of the Terms of Service will govern our relationship with you. We will notify you thirty (30) days in advance of making effective changes that impact the rights and obligations of the parties, for example via a service notification or an email to the email associated with your account. By continuing to access or use the Service after those revisions become effective, you agree to be bound by the revised Terms of Service.

15. GENERAL

15.1 Written communications: Applicable laws may require that some of the information or communications that Utility3 sends to the Customer should be in writing. When using the Service, the Customer accepts that communication with Utility3 will mainly be electronic. Utility3 will contact the Customer by e-mail or provide the Customer with information by posting notices on the Service. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges that all contracts, notices, information and other communications that Utility3 provides to the Customer electronically comply with any legal requirement that such communications be in writing.

15.2 Notices: All notices given by the Customer to Utility3 must be submitted to api@oh.xyz. Utility3 may give notice to the Customer at either the e-mail or postal address the Customer provides to Utility3, or any other way that Utility3 deems appropriate. Notice will be deemed received and properly served immediately when posted on the Service or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.

15.3 Transfer of any rights and obligations: The Customer may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Customer's rights or obligations arising under the Agreement, without Utility3's prior written consent.

15.4 Events outside a party's control: Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party unless an approved sub-contractor of Utility3, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this clause shall excuse the Customer from any payment obligation under the Agreement.

15.5 Third party rights: Other than as expressly stated in the Agreement, a person who is not a party to the Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

15.6 Waiver: No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

15.7 Severability: If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of the Agreement shall not be prejudiced.

15.8 Entire agreement: This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, misrepresentation, warranty or undertaking (whether negligently or innocently made) other than as expressly set out in this Agreement.

15.9 Law and jurisdiction: This Agreement shall be governed by, and construed in accordance with, English law, and each party hereby submits to the exclusive jurisdiction of the courts of England.