Updated on: 8th August, 2025
These Terms and Conditions and an Order Form (together, the “Agreement”) are entered into by and between Beyond Presence and Customer and sets out the terms and conditions that govern Customer’s rights to access and use the Beyond Presence Services. Beyond Presence may amend Terms and Conditions from time to time by posting a new copy of Terms and Conditions on this webpage or a successor page or otherwise providing Customer with notice of such amendment. If Customer does not agree to any such amendment, Customer must and shall stop using any Beyond Presence Services. Customer’s continued use of any Beyond Presence Services after any amendment constitutes Customer’s binding acceptance of such amendment.By signing up to use any Beyond Presence Services, you agree to be bound by this Agreement.If you are entering into this Agreement on behalf of an entity, you represent that you have legal authority to bind that entity, and all references to “Customer” herein are references to that entity.Unless otherwise defined in the body of the Agreement or above, any capitalised terms herein have the meaning given to them in Section
THE PARTIES AGREE AS FOLLOWS:
1 . BEYOND PRESENCE PLATFORM AND THE SOLUTION
1.1 Beyond Presence Platform Access.
Beyond Presence grants Customer a limited, personal, non exclusive, non sublicensable and non transferable right during the Term for its Authorized Users, up to the limits on the number of such Authorized Users set out in the Order Form if any, to use the ordinary features and functionalities of the Beyond Presence Platform as part of Customer’s internal business operations via the standard Beyond Presence Platform web interface.
1.2 Beyond Presence Solution Integration.
Beyond Presence grants Customer a limited, personal, non-exclusive, non-sublicensable and non-transferable right and license during the Term to use the Beyond Presence Connectors to integrate the Beyond Presence Solution into Customer’s applications, products or services (“Customer Apps”) in accordance with the Documentation to enable End Users to interact with Conversational Video Agent(s) via those Customer Apps.
1.3 Limitations.
The features and functionalities of the Beyond Presence Services to be made available to Customer shall vary depending on the features and functionalities (and any relevant limits and restrictions) expressed as available within the relevant subscription purchased by Customer and set out in the Order Form – any relevant terms and conditions of this Agreement shall be construed accordingly (including the rights granted in Sections 1.1 and 1.2). In particular, the number of Conversational Video Agents that Customer may make available via its Customer Apps, the maximum conversation time per End User session and the maximum number of concurrent conversations with Conversational Video Agents across End Users will be subject to any limits applicable to Customer’s subscription and/or set out in the Order Form. If the Order Form includes a Service Level Agreement, that SLA applies to the Services and sets the sole credits and remedies for availability and response times.
1.4 Non-exclusive.
Customer acknowledges that the likenesses of the Conversational Video Agents are stock Avatars that are made generally available to Beyond Presence’s customers, and Customer does not obtain any exclusive rights to use any given Conversational Video Agent’s likeness under this Agreement or otherwise.
1.4A Custom Avatars and likeness. If Customer supplies face or voice material to create a custom Avatar, Customer represents that it has a valid written model release and all permissions needed to create, use and distribute the Avatar. Customer grants Beyond Presence a licence to process that material only to create and operate the Avatar for Customer. On verified request by the depicted person, Beyond Presence may suspend or remove the Avatar and will notify Customer. Customer will not upload any material that depicts a person without documented consent.
1.5 Responsibility.
Customer is solely responsible for the acts and omissions of End Users and Authorised Users. Customer shall immediately notify Beyond Presence of any unauthorised use by any Authorised User or End User’s of any Beyond Presence Services and/or any Customer Apps (as and where applicable).
1.6 Acceptable Use.
In connection with any use of the Beyond Presence Services (including in relation to any Inputs to the Beyond Presence Services) and use of Interactions, Customer shall, and shall procure that its Authorised Users and End Users shall, comply with Beyond Presence’s Acceptable Use Policy (as amended from time to time). Customer acknowledges that Beyond Presence and/or certain AI Services (as defined below) may use certain measures and technologies (including artificial intelligence-powered systems) to screen Inputs and Interactions to block the generation of certain Interactions which would or is likely to not conform to Beyond Presence’s Acceptable Use Policy and/or any terms, conditions or guidelines applicable to any AI Services (as defined below).
2 . FREE TRIALS, EVALUATION USE, AND BETA FEATURES
2.1 Free Trials.
If a Free Trial Period is agreed under the Order Form, Customer may use the Beyond Presence Platform during that Free Trial Period (subject to any limitations or restrictions on such trial usage as Beyond Presence may impose in its sole discretion), provided that during such Free Trial Period, Customer shall have no right to use any other aspects of the Beyond Presence Services (including any Beyond Presence Connectors and/or to integrate the Beyond Presence Solution into Customer Apps). Under no circumstances can Customer (inclusive of any employees, service providers or staff working on its behalf) have more than one Free Trial Period.
2.2 Evaluation Use.
If an Evaluation Period is agreed under the Order Form, Customer may use the Beyond Presence Solution during that Evaluation Period for internal testing and evaluation usage only and no commercial or production use whatsoever (subject to any further limitations or restrictions on such evaluation usage as Beyond Presence may impose in its sole discretion). Under no circumstances can Customer (inclusive of any employees, service providers or staff working on its behalf) have more than one Evaluation Period. For the avoidance of any doubt, under no circumstances may Customer make available the Beyond Presence Solution (as part of the Customer Apps or otherwise) to any End Users or any person other than its internal staff members engaged in the internal testing and evaluation of the Beyond Presence Solution.
2.3 Conversion into paid for subscription.
At the end of any Free Trial Period or Evaluation Period, the subscription automatically converts into the paid plan set out in the Order Form, and the Initial Term starts on that date, unless Customer cancels before the end of the applicable period. If no plan is stated in the Order Form, the subscription converts into the plan selected by Customer at signup or, if none, the plan shown on the Beyond Presence pricing page at the time the trial started. On conversion, Fees start to accrue. If a payment method is on file, Beyond Presence may charge it for the first billing period. If no payment method is on file, Beyond Presence will issue an invoice under Section 5.2. By starting a Free Trial or Evaluation, Customer agrees to this automatic conversion. Customer may cancel after conversion with effect from the end of the then current billing period unless the Order Form states otherwise. Free Trials, Evaluation use, and Beta Features are provided as is.
2.4 Beta Features.
From time to time, Customer may have the option to access certain features or functionalities of the Beyond Presence Services on made available by Beyond Presence on a ‘beta’, pre-release or evaluation basis (“Beta Features”), including where Customer elects to participate in any Beyond Presence beta testing programme(s) or similar. Customer may only use the Beta Features to internally evaluate and test such Beta Features and for no other purpose whatsoever. Customer shall not disclose to any third-party or publish details of any Beta Feature (including details of any evaluation or testing of the Beta Feature) without Beyond Presence’s prior written consent.
2.5 INAPPLICABLE PROVISIONS.
With respect to Customer’s use of any Beyond Presence Services during the Free Trial Period and the Evaluation Period (as applicable), and at all times with respect to any Beta Features, the following Sections of this Agreement will not apply: Section 5, Section 7.2 (insofar as the limited warranty therein would otherwise be given by Beyond Presence), and Section 7.1.1; furthermore, Beyond Presence makes no commitments to Customer, and to the fullest extent permitted by law shall have no liability whatsoever to Customer, with respect to any such use.
3 .Beyond Presence CONNECTORS
3.1 No Endorsement.
Customer shall not represent to any third-party that Beyond Presence endorses, warrants, guarantees or makes any other commitments with respect to the operation or performance of any Customer Apps.
3.2 No support.
Customer is solely responsible and liable for any Customer Apps, and Beyond Presence shall have no obligation to provide support, maintenance or any other services to any person with respect to the access, use of, development or delivery of any Customer Apps (other than to provide the Beyond Presence Solution via the Beyond Presence Connectors under and subject to this Agreement).
3.3 API Keys.
Customer shall ensure the ongoing security and control of its API keys and any other credentials required to use the Beyond Presence API, and shall not exchange or transfer any such API keys or other credentials from, to or with any third-party without Beyond Presence’s express written consent. Beyond Presence will give at least sixty days notice before deprecating an API version, except where earlier action is needed for security or abuse prevention.
3.4 Supported Versions.
Customer shall only use supported versions of the Beyond Presence API, and shall promptly implement any updates and patches to the Beyond Presence API notified to Customer from time to time. Beyond Presence shall have no liability to Customer arising out of any use by Customer of any unsupported Beyond Presence API, which shall be at Customer’s own risk.
3.5 Throttling.
Beyond Presence may from time to time permanently or temporarily impose reasonable limits on use of the Beyond Presence Solution via the Customer Apps and any Beyond Presence Connectors (e.g., throttling or rate-limiting calls made via Customer Apps). Without prejudice to the foregoing, Beyond Presence may impose such limits where it reasonably believes that the volume of calls made via the Beyond Presence Connector would adversely impact the Beyond Presence Technology, have a detrimental effect on the operation of the Beyond Presence Solution and/or adversely affect Beyond Presence’s other customers and users.
4 .BEYOND PRESENCE TECHNOLOGY; CUSTOMER CONTENT
4.1 Beyond Presence Ownership.
As between the Parties, Beyond Presence retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to the Beyond Presence Technology. Customer will not acquire any right, title or interest in or to the Beyond Presence Technology (subject only to the limited rights expressly granted in Section 1.1), and Beyond Presence reserves all rights therein and thereto not expressly granted in this Agreement.
4.2 Customer Ownership.
As between the Parties, Customer retains sole ownership of all right, title and interest, including all Intellectual Property Rights, in and to all Customer Content and any Customer Apps (excluding always the Beyond Presence Technology).
4.3 License to Beyond Presence.
Customer hereby grants to Beyond Presence a non-exclusive, worldwide, royalty-free and fully paid-up licence during the Term to use any Customer Content, any Connected Applications, any Customer Apps and under any other relevant Intellectual Property Rights owned or licensed by Customer, as necessary to provide, operate and make available the Beyond Presence Services to Customer in accordance with this Agreement. Furthermore, Customer acknowledges that Beyond Presence may collect and use general usage information about use of the Beyond Presence Services, to be complied into an aggregated or de-identified form, for use to: (i) enhance, develop or improve the Beyond Presence Technology; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Beyond Presence Services, provided, however, that no Customer-only statistics will be disclosed to third parties and no Customer Content will be used for this purpose.
4.4 Stateless.
Any Inputs and Interactions to the Beyond Presence Services are processed on a ‘stateless’ or ‘zero data retention’ basis, meaning that these Inputs and Interactions are only processed on a transient basis for the limited period necessary to generate the Interaction. The only limited exception to this general rule is that, to reduce latency in the operation of the Beyond Presence Services and in Interactions with Conversational Video Agents, Beyond Presence may cache certain Inputs and Interactions as part of the text-to-speech functionality of the Conversational Video Agents to reduce the need to call to certain AI Services powering that functionality – any such cached Inputs and Interactions will be used only for the benefit of Customer and its End Users as necessary to perform this Agreement, and not for the benefit of any other person.
4.5 No Training.
Beyond Presence will not use, and will not permit any providers of AI Services (as defined below) to use, any Customer Content to train any artificial intelligence systems or models; provided that, it is acknowledged that, where agreed in the Order Form certain Connected Data may be used as part of certain ‘retrieval augmented generation’ related processing to enhance the functionality of the Beyond Presence Services for the benefit of Customer and its End Users.
5 . FEES
5.1 Payments.Customer shall pay the Fees in advance in accordance with this Section 5 and any relevant terms of the Order Form.
5.2 Invoicing and Payment.
Beyond Presence shall issue Customer with invoices in respect of any Fees that come due and payable and Customer shall pay the amounts shown in all such invoices in full into the Beyond Presence Bank Account (or such other account as directed by Beyond Presence) within thirty (30) days of the invoice date, unless otherwise agreed in the Order Form.
5.3 Fees.
All Fees are payable in the currency shown in the Order Form, are non cancellable and non refundable unless expressly provided otherwise in this Agreement, and are exclusive of value added tax. Where applicable, value added tax will be charged at the statutory rate. For intra European Union supplies to customers with a valid VAT identification number, the reverse charge mechanism applies. Customer is responsible for all other taxes, duties, and charges arising from payments under this Agreement.
5.4 Fee Changes.
Beyond Presence reserves the right to increase the Fees following the Initial Term, and each Renewal Term thereafter, provided that Beyond Presence will provide notification of any such increase at least forty-five (45) days in advance of the end of the Initial Term or then-current Renewal Term (as applicable).
5.5 Late payments.
If Customer fails to pay any amount when due, default interest shall accrue on the overdue remuneration claim at a rate of nine percentage points above the base interest rate per section 288 paragraph 2 of the German Civil Code, calculated on a daily basis from the due date until payment in full. For monetary claims that are not remuneration claims, default interest is five percentage points above the base interest rate per section 288 paragraph 1. The base interest rate is determined under section 247 of the German Civil Code and published by the Deutsche Bundesbank. Beyond Presence is further entitled to the statutory lump sum compensation of forty euros under section 288 paragraph 5, with any higher recovery costs remaining recoverable. Beyond Presence may suspend access to the Services until all overdue amounts are paid.
6. Restrictions
Customer shall not and shall not suffer, allow, assist or enable any other person (including Authorized Users and End Users) to: (a) use the Beyond Presence Technology, the Customer Apps, and/or any Interactions in any manner or for any purpose that is restricted by or inconsistent with this Agreement, applicable law, and/or Beyond Presence’s Acceptable Use Policy; (b) provide or otherwise make the Beyond Presence Technology available to any third parties (other than Conversational Video Agent(s) via any Customer Apps directly to its End Users); (c) use the Beyond Presence Technology, the Customer Apps, and/or any Interactions to create, market or distribute any product or service that is similar to, competitive with, or otherwise replicates or seeks to replicate any features or functionalities of, the Beyond Presence Technology (save only with respect to any Customer Apps and then only insofar as otherwise permitted under this Agreement); (d) introduce to the Beyond Presence Technology any ‘back door’, ‘drop dead device’, ‘time bomb’, ‘Trojan horse’, ‘virus’ or ‘worm’ or any other equivalent code, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of the Beyond Presence Technology or any device, system, data or file owned or controlled by Beyond Presence or any third-party; (e) (re)create, access, inspect or derive any underlying models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code)), and/or data used to train or create those models, which are part of the Beyond Presence Technology and/or any AI Services (including as part of any so-called ‘model extraction’, ‘model inference’ or ‘model inversion’ techniques or similar); (f) modify, copy, resell, distribute, rent, lease, sub-license, load, merge, adapt, translate, or create derivative works of, the Beyond Presence Technology save as expressly permitted under this Agreement; (g) contest, challenge or otherwise make any claim or take any action adverse to Beyond Presence’s ownership of, or interest in, the Beyond Presence Technology; (h) re-use, disseminate, copy, or otherwise use the Beyond Presence Technology in a way that infringes, misappropriates, or violates any Intellectual Property Rights or other right of Beyond Presence or any third-party; (i) engage in competitive analysis or benchmarking of the Beyond Presence Technology; (j) remove, alter or obscure any trade mark notice, copyright notice or any other proprietary notice from the Beyond Presence Technology; (k) circumvent, disable, or interfere with security-related, authentication-related, copy-protection or rate-limiting features of the Beyond Presence Technology; (l) reverse engineer, decompile, unbundle or disassemble the whole or any part of the Beyond Presence Technology, unless and to the extent unavoidably permitted by unavoidable laws of Customer’s jurisdiction for limited interoperability purposes; (m) impose an unreasonable or disproportionately large load or strain on any Beyond Presence Services; (n) use Interactions for automated actions without appropriate human review and controls for the use case, unless Customer has enabled automation in the admin console or the Order Form and accepts responsibility for such use; (o) enable any interaction between any End User and any Conversational Video Agent without clearly bringing to the attention of the End User the fact that such interaction is with an AI-generated Avatar; or (p) take any action designed or intended to do any of the foregoing. Breach of this Section 6 constitutes a ‘material breach’ of this Agreement for the purposes of Section 7.3.2.
´6.1.1 Customer Warranty.
Customer warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times, all necessary rights, power, consents and authority (including from its End Users): (a) to use Customer Content, the Customer Apps (excluding the Beyond Presence Solution), Connected Data and Connected Applications as contemplated by this Agreement; and (b) to grant Beyond Presence the rights and licenses set out in Section 4.3.
6.1.2 Limited Warranties.
Each Party warrants and represents on an ongoing basis that it has, and undertakes that it shall continue to have for the duration of this Agreement at all relevant times, the requisite power, capacity and authority to enter into this Agreement, to perform and carry out its obligations under this Agreement. Beyond Presence warrants that, during the Term, the Beyond Presence Services will materially conform to the then-current Documentation when used in accordance with that Documentation and the provisions of this Agreement; provided that such warranty shall not apply: (a) in the event that Customer has breached this Agreement; or (b) to any defects or issues arising as a result of: (i) any modification by any person other than Beyond Presence; and/or (ii) use of any Beyond Presence Services in combination with other products, hardware, equipment, software, or data not made available by Beyond Presence.
6.1.3 Disclaimer.
Except as expressly provided in this Agreement, the Beyond Presence Services and the Interactions are provided as is. To the extent permitted in business to business contracts under German law, all conditions, warranties, representations, undertakings, and other terms not expressly set out in this Agreement are excluded, including any implied conditions or warranties of satisfactory quality, merchantability, accuracy, reasonable skill and care, fitness for a particular purpose, non infringement, and those arising from course of dealing, usage, or trade. Beyond Presence does not warrant uninterrupted or error free operation, ongoing uptime or availability, or any minimum number of concurrent conversations. Beyond Presence does not warrant, represent, endorse, support, or guarantee the completeness, truthfulness, accuracy, legality, originality, reliability, performance, or appropriateness of any Interactions, and is not responsible for reviewing or verifying the content of any Interactions. Customer is solely responsible for Customer’s, its Authorised Users’, and any End Users’ use of the Beyond Presence Services and Customer Apps, and for evaluating the fitness of the Beyond Presence Services and any Interactions for any specific use case. Nothing in this Section shall limit liability in accordance with Section 7.2, Limitation of Liability.
6.2 Third-Party Services and Connected Applications
6.2.1 AI Services.
Certain elements of the Beyond Presence Services may incorporate functionality of, or enable access to, certain third-party tools, systems, applications and/or platforms (including certain third-party machine learning and/or artificial intelligence systems, platforms, models, algorithms, etc.) (“AI Services”). The incorporation of the functionality of, or Customer’s ability to access, certain AI Services via the Beyond Presence Services may vary depending upon the functionalities enabled or disabled by Customer through its configuration of certain features of the Beyond Presence Services and any limitations set out in the Order Form. Customer acknowledges that by using the Beyond Presence Services (including through its configuration of relevant functionalities thereof, as and where applicable), it is instructing Beyond Presence to share any Customer Content with the relevant providers of such AI Services to the extent necessary to facilitate such functionality or access.
6.2.2 Third party provider terms.
The Services run on third party AI, voice, video and communications providers selected by Beyond Presence. Customer agrees to use the Services in a way that allows Beyond Presence to comply with those providers’ public terms and acceptable use rules. Beyond Presence will keep a current list of such providers and links to their terms on a Provider Terms page and will give at least thirty days notice of material changes where practicable. Beyond Presence may modify or discontinue features or change providers for good cause, including security, performance, legal or regulatory requirements, or a provider’s pricing or availability. Beyond Presence will use reasonable efforts to avoid a material adverse change to the core functionality of the Customer’s plan. If a change causes a material adverse impact on Customer’s permitted use and no reasonable workaround exists, Customer may terminate the affected features on written notice. If Customer has prepaid Fees for the affected period, Beyond Presence will provide a pro rated refund for the unused remainder of the Term for the affected features. This Section does not apply to Free Trials, Evaluation use or Beta Features.
6.2.3 Connected Applications.
Certain elements of the Beyond Presence Services may permit or enable Customer to link or otherwise connect or integrate Customer’s Connected Applications (including its own internal or Customer-specific third-party large language model) to the Beyond Presence Services. By connecting any Connected Application to the Beyond Presence Services, Customer (a) represents and warrants that it is entitled to link or otherwise connect the Connected Application to the Beyond Presence Services; and (b) instructs Beyond Presence to access and/or share any Customer Content with the relevant providers of such Connected Applications as necessary to perform and enjoy this Agreement.
6.2.4 No Liability
Customer acknowledges that such AI Services and any Connected Applications are not under Beyond Presence’s control and Beyond Presence is not responsible for those AI Services nor Connected Applications, and Beyond Presence will have no liability for any unavailability or failure of any AI Service or Connected Application, or any third-party provider’s decision to discontinue, suspend or terminate any AI Service or Connected Application.
6.3 AI transparency and compliance.
Customer will clearly inform end users that they are interacting with an AI generated Avatar, will not remove any provenance or watermarking signals applied by Beyond Presence, and will present any other notices that are required by applicable law for synthetic audio or video. Where required by law, Customer will keep appropriate records of prompts and outputs for compliance and audit.
7 . DATA PROTECTION
The Beyond Presence Data Processing Addendum (as amended from time to time) (the “DPA”) shall apply in accordance with its terms in relation to Beyond Presence’s Processing of Customer Personal Data on Customer’s behalf in performance of this Agreement. If and where the DPA applies in accordance with the foregoing, to the extent of any inconsistency or conflict between any provision(s) of this Agreement and any provision(s) of the DPA, the relevant provision(s) of the DPA shall govern and prevail in preference to any relevant provision(s) of this Agreement insofar as they relate to Beyond Presence’s Processing of Customer Personal Data. Any capitalised terms used in this Section 7, but not defined in this Agreement, shall have the meaning given to them in the DPA.
7.A Security.
Beyond Presence will maintain reasonable technical and organizational measures appropriate to the risk, including access controls, encryption in transit, encryption at rest for retained mode, logging, vulnerability management and employee security training. Beyond Presence performs periodic penetration testing and risk assessments and will make a high level summary available on request under NDA. Beyond Presence will notify Customer without undue delay and within seventy two hours of confirming a personal data breach involving Customer Personal Data.
7.1 Indemnities
7.1.1. Beyond Presence Indemnities.
Subject to Sections 7.2 and 7.3, Beyond Presence shall indemnify Customer from and against Losses incurred by Customer as a result of damages and costs (including reasonable legal and professional fees and disbursements) awarded in final judgment or agreed in final settlement of any third-party claim, demand, complaint, proceeding or other action (together, “Claims”) against Customer that use of the Beyond Presence Solution as part of a Customer App within the scope of the rights granted under this Agreement, infringes, misappropriates or violates the Intellectual Property Rights of a third-party (the “Solution Usage Indemnity”). The obligations set forth in this Section 7.1.1 shall constitute Beyond Presence’s entire liability and Customer’s sole remedy for any actual or alleged infringement, misappropriation or violation of any Intellectual Property Rights of a third-party arising out of or in connection with this Agreement.
7.1.2 Customer obligations.
Customer shall: (a) notify Beyond Presence in full, accurate and complete detail in writing promptly (and in any event within five (5) Business Days) after it becomes aware of any event or any Claim, which it believes may give rise to a claim for indemnification under Section 7.1.1 (an “Indemnified Claim”); (b) allow Beyond Presence sole authority to control the defence and settlement of any Indemnified Claim; (c) provide Beyond Presence with all reasonable cooperation in the defence of such Indemnified Claim; and (d) not settle or compromise any Indemnified Claim or make any admission of liability without the express prior written consent of Beyond Presence. In event of any Indemnified Claim, at its option, Beyond Presence may elect to: (x) modify or replace all or any relevant part of the Beyond Presence Solution so that it becomes non-infringing; (y) obtain any required licence(s) to use the applicable third-party Intellectual Property Rights; or (z) terminate this Agreement on written notice to Customer and refund to Customer any pre-paid Fees pro-rated to reflect the remainder of the Initial Term or then-current Renewal Term (as applicable).
7.1.3 General Indemnification Exclusions.
Beyond Presence shall have no liability whatsoever to Customer under in respect of any Indemnified Claims to the extent arising directly or indirectly as a result of: (a) any breach, non-performance or any other default by Customer under of this Agreement; (b) any use of any Beyond Presence Services in combination with other products, hardware, equipment, software, data or other any text, images, audio, video, data or information not provided to Customer by Beyond Presence; (c) any modification of any Beyond Presence Services by any person other than Beyond Presence; (d) the Customer Content; (e) any Customer Apps (excluding the Beyond Presence Solution as integrated therein) or any use thereof by any person; (f) any AI Services or Connected Applications; (g) any Beta Features and/or any use during a Free Trial Period; and/or (h) any continued use of any Beyond Presence Services after: (i) Customer is told to cease such use; and/or (ii) Customer knew or ought reasonably to have known that the Beyond Presence Solution infringed, misappropriated or violated of any third-party right (including Intellectual Property Rights).
7.1.4 Customer Indemnity.
Customer agrees to indemnify Beyond Presence on demand for, and hold harmless Beyond Presence from and against, any and all Losses suffered or incurred by Beyond Presence arising out of or in connection with any third-party Claim brought, made or threatened against Beyond Presence that: (a) any Customer Content, Connected Applications, Customer Apps (excluding the Beyond Presence Solution as integrated therein), and any other relevant Intellectual Property Rights owned or licensed by Customer infringes, misappropriates or violates the rights (including Intellectual Property Rights) of any third-party; or (b) Customer’s breach of this Agreement (the “Customer Indemnity”).
7.2 LIMITATION OF LIABILITY
7.2.1 Unlimited Liability.
Nothing in this Agreement limits or excludes the liability of either Party: (a) for death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) under the Solution Usage Indemnity and the Customer Indemnity; (d) for any other act, omission, or liability which may not be limited or excluded by applicable law; or (e) in respect of Customer, Customer’s liability to pay Beyond Presence any sums due and payable under this Agreement.
7.2.2 Exclusions.
Subject only to Section 7.2.1, Beyond Presence shall not in any circumstances be liable to Customer whether in contract, tort (including for negligence), breach of statutory duty (howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for: (a) any (i) loss, damage or liability (in each case whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill, anticipated savings or wasted expenditure (including management time); or (ii) special, indirect or consequential loss or damage whatsoever, in each case (i) and (ii) however arising under or in connection with this Agreement and even if Beyond Presence was aware of the possibility that such loss or damage might be incurred; or (b) any loss, damage or liability (in each case whether direct or indirect) arising as a result of (i) Customer’s or any third-party’s use or reliance upon any Interaction; (ii) any loss or corruption of data or information; (iii) any breach, non-performance or any other default by Customer under this Agreement; (iv) any failure by Customer to comply with any applicable law, regulation or applicable code of practice;
7.2.3 Liability Cap.
Subject to Section 7.2.1 and 7.2.2, Beyond Presence’s total aggregate liability to Customer in respect of any and all Claims (whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise) arising in connection with the performance or contemplated performance of this Agreement shall under no circumstances exceed one hundred per cent (100%) of the Fees paid by Customer under this Agreement in the twelve (12) months immediately preceding the first event (or first event in any series of connected events) giving rise to a Claim against Beyond Presence, provided that, the existence of more than one Claim or event (or series of connected events) from which liability arises shall not enlarge the limits set out in this Section 7.2.3.
7.3 Term and termination
7.3.1 Commencement and duration.
Unless terminated earlier pursuant to the terms of Section 7.3.2, this Agreement shall: (a) commence on the effective date of this Agreement, continue for any Free Trial Period and/or Evaluation Period (if any) and the Initial Term; and (b) automatically renew for further successive Renewal Terms at the end of the Initial Term and at the end of each Renewal Term unless either Party gives written notice to the other Party not later than thirty (30) days before the end of the Initial Term or then-current Renewal Term to terminate this Agreement upon the expiry of the Initial Term or then-current Renewal Term.
7.3.2 Termination.
Without prejudice to any other right or remedy, either Party may terminate this Agreement for cause with immediate effect by written notice if the other Party commits a material breach of this Agreement which is irremediable or, if remediable, is not remedied within thirty (30) days of written notice requiring remedy.Either Party may also terminate this Agreement for cause with immediate effect if, with respect to the other Party, any of the following occurs: (a) an application for the opening of insolvency proceedings is filed, or insolvency proceedings are opened, or the opening of such proceedings is rejected for lack of assets, (b) a preliminary insolvency administrator is appointed, or provisional measures under sections 21 et seq. of the German Insolvency Code are ordered, (c) the other Party suspends payments, or is otherwise generally unable to meet its due payment obligations as they fall due, (d) a resolution is passed to liquidate or dissolve the other Party, other than for the purpose of a bona fide solvent merger or reorganization, or the other Party ceases to carry on its material business, (e) the other Party proposes or enters into any composition, arrangement, or moratorium with its creditors, or any class of them, or seeks similar relief under applicable law.For the avoidance of doubt, failure by Customer to pay any Fees when due shall constitute a material breach for the purposes of this Section 7.3.2.
7.4 Consequences of Termination
7.4.1 Consequences.
On termination of this Agreement: (a) notwithstanding Section 5, Customer shall promptly (and in any event within ten (10) Business Days of the date of termination) pay Beyond Presence any outstanding balances owing to Beyond Presence under this Agreement; (b) any and all licenses, permissions and authorizations granted to Customer and/or its End Users by Beyond Presence under this Agreement will terminate automatically (for the avoidance of doubt, Customer shall cease to use, and cause the cessation of all use of, the Beyond Presence Services); (c) Beyond Presence shall cease to collect Connected Data for Customer and disable any connections to Connected Applications; and (d) each Party will promptly return all Confidential Information received from the other Party, together with all copies, or certify (on request from the other Party) in writing that all such Confidential Information and copies thereof have been destroyed. Deletion and return of Customer Personal Data shall be handled in accordance with the DPA.
7.4.2 Limitations
Any obligation to return, destroy or permanently erase Confidential Information outlined in Section 8 shall not apply: (a) in respect of any Confidential Information that Beyond Presence may be entitled to retain as necessary to comply with any legal, regulatory, judicial, audit, or internal compliance requirements; (b) in respect of any Confidential Information retained by a Connected Application, in accordance with any relevant terms governing use thereof; and (c) to any Confidential Information that is retained by Beyond Presence on electronic back‑up media made in the ordinary course of business and from which it cannot readily be isolated from other information and deleted, provided that, in each case, the provisions of Section 8 shall continue to apply to Beyond Presence’s retention of any such Confidential Information at all relevant times.
7.4.3 Survival and accrued rights.
Any provision of this Agreement that either expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
8 . CONFIDENTIAL INFORMATION
In this Agreement, “Confidential Information” means any information that is clearly labelled or identified as confidential, or reasonably ought to be treated as being confidential. Confidential Information excludes any information which: (a) is or becomes publicly known other than through a breach of this Agreement; (b) was in the receiving Party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving Party by a third-party without restriction on disclosure; or (d) is independently developed by the receiving Party without reference to or reliance upon the disclosing Party’s Confidential Information and that independent development can be shown by contemporary written evidence. Neither Party shall use the other’s Confidential Information for any purpose other than the performance and enjoyment of the obligations and rights set out in this Agreement. Each Party shall keep the other’s Confidential Information confidential and, except as otherwise provided in this Agreement, shall limit access to the other’s Confidential Information to those employees, agents, representatives or subcontractors who have a genuine ‘need to know’, who are subject to confidentiality obligations no less restrictive than those set forth in this Section 8, and who have been informed of the confidential nature of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose the other’s Confidential Information to the limited extent that such disclosure is required by law or by the order of a court or similar regulatory or administrative body; provided that the receiving Party shall promptly notify the other Party in writing of such required disclosure and shall cooperate with the other Party if the other Party seeks a protective order in relation to any such disclosure and/or any limitations on the further use and disclosure of such Confidential Information.
8.1 General
8.1.1 Marketing.
Customer acknowledges and agrees that Beyond Presence may include Customer’s name and a factual, non-misleading description of the technology and services provided under this Agreement in case-study materials, reference lists, pitch decks, websites, social-media posts, and other marketing communications,
in each case in compliance with §§ 5 and 6 of the German Act against Unfair Competition, Gesetz gegen den unlauteren Wettbewerb, “UWG”Customer’s prior written cwithin the meaning of § 19 German Trade Mark Act, Markengesetz, “MarkenG”. Customer may withhold or withdraw that consent at any time for good cause, such withdrawal taking effect upon receipt by Beyond Presence.Nothing in this Section 8.1.1 limits Customer’s statutory right to object under § 7 UWG to receiving advertising by email or other direct marketing communications.
8.1.2 Export Controls; Sanctions.
Customer shall comply with all applicable export control, customs, trade, and sanctions laws, rules, and regulations of the European Union and Germany, including Regulation EU 2021,821, the German Foreign Trade and Payments Act, Außenwirtschaftsgesetz, and the Foreign Trade and Payments Ordinance, Außenwirtschaftsverordnung, and all restrictive measures adopted under the EU Common Foreign and Security Policy, including the EU consolidated financial sanctions list. Customer shall also comply with other regimes to the extent applicable to its use of the Beyond Presence Services, including the United States Export Administration Regulations, the sanctions programs administered by the United States Office of Foreign Assets Control, and United Kingdom export control and sanctions laws.Customer represents and warrants on an ongoing basis that neither it, nor any person that owns or controls it, nor any person that it owns or controls, nor any of its directors, officers, or authorised signatories, is listed on, owned or controlled by, or acting on behalf of any person listed on, any sanctions list administered by the European Union, Germany, the United States, or the United Kingdom, including the EU consolidated list, the German consolidated lists implementing EU measures, the United States Specially Designated Nationals and Blocked Persons List, the United States Entity List or Denied Persons List, and the United Kingdom consolidated list. Customer further represents and warrants that it is not located in, organized under the laws of, or ordinarily resident in any country or territory that is subject to comprehensive sanctions under EU or German law, and that it will not permit any End User in such a country or territory to access or use the Beyond Presence Services.Customer shall not export, re export, transfer, sell, supply, or otherwise make available the Beyond Presence Services, or any related software, technology, or technical data, directly or indirectly, to any destination, end user, or end use that is prohibited under applicable EU or German law, including prohibitions related to weapons of mass destruction, military end uses or military end users where restricted, and human rights related restrictions. Customer shall obtain and maintain any licences or approvals required under applicable law and shall implement appropriate screening and controls to prevent prohibited access or diversion. Customer shall, upon reasonable request, provide information, certifications, and documentation necessary for Beyond Presence to assess compliance with this Section 8.1.2. Beyond Presence may suspend performance, deny access, or terminate this Agreement in whole or in part, without liability, where required to comply with applicable law or where Beyond Presence reasonably believes that Customer’s use of the Beyond Presence Services would violate applicable export control or sanctions laws. Any breach of this Section 8.1.2 constitutes a material breach of this Agreement, without prejudice to any other rights or remedies.
8.1.3 Feedback.
If Customer provides feedback, suggestions or recommendations to Beyond Presence regarding the Beyond Presence Technology, including any flaws, errors, bugs, anomalies, problems with and/or suggestions, desired features or improvements relating to the Beyond Presence Services and its ongoing development (“Feedback”), Customer hereby grants Beyond Presence an unrestricted, unconditioned, irrevocable and perpetual right and licence to freely use and exploit such Feedback without any requirement of compensation.
8.1.4 Force Majeure.
No Party will be in breach of this Agreement nor liable for any failure to perform its obligations under this Agreement if that failure results from circumstances beyond its reasonable control (including, in respect of Beyond Presence, any failure resulting from the action or omission of a provider of any AI Service and/or any Connected Application, or any unavailability of any AI Service and/or any Connected Application, resulting from circumstances beyond Beyond Presence’s reasonable control) (a “Force Majeure Event”). If a Force Majeure Event continues for three (3) months, the unaffected Party may terminate this Agreement by giving thirty (30) days’ written notice to the other Party.
8.1.5 Subcontracting.
Beyond Presence may engage any third-party to perform its obligations under this Agreement (including to providers of AI Services), provided that Beyond Presence shall remain fully liable to Customer for performance of such obligations (subject to the exclusions and limitations outlined herein).
8.1.6 Assignment.
The Customer will not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without the prior written consent of Beyond Presence; provided that, Customer may, with not less than fifteen (15) Business Days’ prior notice to Beyond Presence, assign this Agreement (in whole and not in part) as part of a change of control or sale of all or substantially all of Customer’s business. Beyond Presence may at any time freely assign or transfer all or any of its rights or obligations under this Agreement. This Agreement will be binding upon the Parties and their respective successors and permitted assigns.
8.1.7 Notices.
Any notice required to be given under this Agreement shall be in writing and sent by email to the primary contact email address stated in the Order Form, or to such other address as a Party may notify to the other Party in accordance with this Section 8.1.7. A notice shall be deemed received at the time of transmission as evidenced by the sender’s email records, or, if transmitted outside Business Hours in Munich, Germany, at 09:00 hours on the first Business Day thereafter. Each Party shall keep its notice details current at all times by giving notice of any change in accordance with this Section 8.1.7. Notices relating to data protection, including Sub-processor changes and Personal Data Breaches, shall additionally be sent to the data-protection contact email specified in the Order Form.
8.1.8 Waiver.
A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
8.1.9 Entire Agreement.
This Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by this Agreement and supersedes all previous agreements (if any and whether in writing or not) between the Parties in relation to such matters. The Parties acknowledge and agree that, except as otherwise expressly provided for in this Agreement, they are not entering into this Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (whether a Party to this Agreement or not) in relation to the subject matter of this Agreement, provided that nothing in this Agreement shall exclude either Party from liability for fraud or fraudulent misrepresentation.
8.1.10 Language.
This Agreement may be executed in German and in English. In the event of any inconsistency, the German language version shall prevail. If only an English language version exists, the Parties acknowledge that they are business customers and that they understand the language of this Agreement.
8.1.11 No Partnership or Agency.
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
8.1.12 Rights of Third Parties.
There are no third party beneficiaries under this Agreement, and a person who is not a Party to this Agreement shall not be entitled to enforce any of its terms, in particular not as a third party within the meaning of section 328 of the German Civil Code and not as a beneficiary of any contract with protective effect for third parties. Mandatory statutory rights remain unaffected.
8.1.13 Governing law and jurisdiction.
This Agreement and all matters arising out of or in connection with it shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. The courts of Munich, Germany shall have exclusive jurisdiction for all disputes arising out of or in connection with this Agreement.
8.2 Interpretation
The following definitions apply to this Agreement (including its recitals, above):
“Conversational Video Agent” means an Conversational Video Agent accessible via the Beyond Presence Solution for use by Beyond Presence’s customers and their End Users (including as may be trained and generated by Customer using the Beyond Presence Platform).
“Beyond Presence” means Beyond Presence GmbH, a company incorporated under the laws of the Federal Republic of Germany, registered with the commercial register of the local court of Munich, under HRB 293759, with its registered office at Haderunstrasse 39, 81375, Germany, represented by its managing director(s), VAT ID USt-IdNr DE368739370.
“Beyond Presence Connectors” means, as applicable depending on the features and functionalities stated as available under Customer’s subscription and/or the Order Form: (i) Beyond Presence’s application programming interfaces (“Beyond Presence APIs”); and/or (ii) an HTML embed code generated by Beyond Presence for Customer, to enable the integration of the Beyond Presence Solution into Customer Apps.
“Beyond Presence Platform” means Beyond Presence’s ‘Beyond Presence Platform’ functionality powered by Beyond Presence’s proprietary Conversational Video Agent generation models and the Beyond Presence Solution, which Beyond Presence makes available to Customer to allow Authorized Users to train and generate Customer-specific Conversational Video Agent(s) based on Customer Content, leveraging the likeness(es) of the stock photo-realistic Conversational Video Agents made available by Beyond Presence.
“Beyond Presence Services” means Beyond Presence Platform and/or the Beyond Presence Solution.
“Beyond Presence Solution” means the Conversational Video Agents and the Beyond Presence conversation engine for the generation of human-like conversation with such Conversational Video Agents. Where the context permits and requires, the Beyond Presence Solution includes reference to any Beyond Presence Connectors used to facilitate integration of and access to other parts of that Beyond Presence Solution via Customer Apps.
“Beyond Presence Technology” means collectively
(i) the Beyond Presence Services, as updated from time to time;
(ii) any and all other technology and software owned or used by Beyond Presence under or in connection with the Beyond Presence Services, software code (in any form including source code and executable or object code), neural networks, models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code)) and other computer systems or technologies;
(iii) any benchmarking, analytics or technical data relating to the performance or operation of the Beyond Presence Services;
(iv) the Documentation as updated and amended from time to time; and
(v) any and all Intellectual Property Rights in or to each of (i)-(iv).
“Business Day” means any day which is not a Saturday, Sunday or public holiday in Munich, Germany.
“Connected Application” means any system or application owned or controlled by Customer, which is connected to the Beyond Presence Services by, on behalf or at the direction of Customer (including through Customer’s linking of its account for a Connected Application with Beyond Presence Services).
“Connected Data” means any text, images, audio, video, data or information made available within the Beyond Presence Services that is transmitted to the Beyond Presence Services via any Connected Applications.
“Customer” means the entity identified in the Order Form who is a counterparty to the Agreement.
“Customer Content” means Inputs, Interactions and/or Connected Data.“Data Processing Addendum” or “DPA” means the data processing addendum referenced in Section 7, as amended from time to time.
“Customer Personal Data” has the meaning given in the DPA. “Processing”, “Controller”, “Processor”, “Data Subject”, “Supervisory Authority”, and “Personal Data Breach” each have the meaning given in the EU General Data Protection Regulation. “Subprocessor” has the meaning given in the DPA.
“Documentation” means any manuals, instructions, user guides published by Beyond Presence that describe the Beyond Presence Services and its use, operation, features and functionality (including any documentation relating to the Beyond Presence Connectors(s) made available by Beyond Presence to Customer from time to time at [
https://www.developer.bey.chat/INSERT]).
“End Users” means individual end users of Customer’s Customer Apps.
“Evaluation Period” means a one-off limited term period (of the duration specified in the Order Form) during which Customer may make available certain limited features of the Beyond Presence Solution at no charge to Customer for limited evaluation, non-commercial and internal testing purposes only.
“Fees” means the fees for the Customer’s subscription to the Beyond Presence Services and any applicable use of the Beyond Presence Connectors, as set out on the Order Form.
“Free Trial Period” means a one-off limited term period (of the duration specified in the Order Form) during which Beyond Presence may make available some or all features of Beyond Presence Platform at no charge to Customer.“Inputs” means: (i) in the context of the Beyond Presence Solution, the text, video and audio-based inputs of an End User engaging with an Conversational Video Agent via a Customer App; and (ii) in the context of Beyond Presence Platform, means any text, data, materials or other content (including any Connected Data), input by an Authorized User into Beyond Presence Platform to train, generate and interact with Conversational Video Agents within the Beyond Presence Platform environment.
“Interactions” means any text, video and audio-based interactions relayed to an End User, which the content for which are generated in response to Inputs.
“Intellectual Property Rights” means all copyright and related rights, patents, rights to inventions, utility models, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), so-called ‘personality rights’ and ‘publicity rights’ (including rights to natural person’s name, image and likeness), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Losses” means all losses, liabilities, damages, costs, claims, charges, regulatory fines, demands, actions and expenses (including legal and professional fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).“Order Form” any order form executed by and between Customer and Beyond Presence, or the Beyond Presence webpage Customer uses to purchase a subscription to use the Beyond Presence Services (including, where applicable, any email acknowledgement (e.g., an email notice or receipt of purchase) sent to Customer following conclusion of that purchase).
“Term” means any Free Trial Period and/or Evaluation Period, plus any initial subscription term (an “Initial Term”) and any renewal subscription term (an “Renewal Term”), each of the duration(s) set out in the Order Form.The following rules of interpretation shall apply in this Agreement: (a) to the extent not defined in this Section 8.2 or elsewhere in these Terms and Conditions, the capitalized terms in the Order Form shall have the meaning given to them in that Order Form; (b) any reference to this Agreement terminating shall, where the context requires, include a reference to this Agreement terminating by expiry of the Term; (c) the words “include” and “including” (or similar) shall be construed as illustrative only and shall not limit the sense of the description, definition, phrase or term(s) that comes before the relevant term; and (d) any reference to the “Parties” means Beyond Presence and Customer and “Party” shall mean one of them.
Where applicable, to the extent of any inconsistency or conflict between any provision(s) of these Terms and Conditions and any provision(s) of the Order Form, the relevant provision(s) of the Order Form shall govern and prevail.