1. General 1.1. Mercury.ai GmbH (hereinafter referred to as "Provider") offers cloud based dialogue automation and management services as well as related services specified on the Provider`s website “mercuri.ai” (hereinafter referred to as “Website”) (hereinafter referred to as "Services" or "Service"). The Service allows the Users to create and manage dialogues (hereinafter referred to as „Dialogue“) and to serve it to messenger platforms and/or to any other digital communication platforms (“Platforms”).

1.2. All contractual relationships between the Provider and any user using the Services offered by the Provider (hereinafter referred to as "User" or "Users") shall be governed exclusively by these Terms of Service (hereinafter referred to as "Terms of Service"). By using the Services, the User agrees to be bound by these Terms of Service. Any general terms and conditions of the User that depart from, conflict with or supplement the Terms of Service shall form part of the contract only if, and to the extent that, the Provider has expressly consented to the validity of such.

1.3. The Services offered by the Provider are available only to businesses (within the meaning of Section 14 of the German Civil Code), a legal person constituted under public law (juristische Person des öffentlichen Rechts ) or a public sector funding company (öffentlich-rechtliches Sondervermögen).

1.4. The Provider does not offer Services to a User who – if the User is a natural person – is under 18 years old. If Provider becomes aware that a User is under the age of 18 years, Provider will cease to provide the Services and is entitled to terminate this Contract.

1.5. The User is responsible for the accuracy of the information needed for the use of the Services. The User shall keep credentials secret and protect them against unauthorized use by third parties. In case of misuse or loss of credentials, or in case of suspicion of such, the User shall report this via email (terms@mercury.ai) to the Provider.

2. Services 2.1. Offers published by the Provider on the Website are non-binding.

2.2. The Provider will make the Services available to the User through a web-application available under https://app.mercury.ai

2.3. The Provider grants to its Users a limited non-exclusive, non-transferable license to access and make personal use of the Services (hereinafter referred to as "Provider License "). 2.4. The Provider License is subject to the following prohibitions: The User shall not sub-license their right to use the Services, unless expressly agreed in writing, or allow any unauthorized person to access or use the Services; The User shall not have the right to resell the offered software unless expressly agreed in through a Business Partner Agreement. The User shall not modify the Services offered by the Provider. The User has no right to access the object code or source code of the software.

2.5. All intellectual property rights with regard to the software (in particular with regard to the software configured in the course of the Onboarding Phase subject to Clause 2.6.) shall be the exclusive property of the Provider.

2.6. The Provider’s Services commence with an Onboarding Phase either prior to or beginning with the begin of the actual Software as a Service subscription (hereinafter referred to as “Onboarding Phase”). In the course of such Onboarding Phase the Provider configures the software in accordance with the specific needs of the User. The terms (especially the price) of the Onboarding Phase are subject to the corresponding order form. Clause 2.3. and Clause 2.4. shall apply accordingly.

2.7. The User can subscribe to the Services on a monthly, semi-annual or annual basis, depending on the respective license type (Project, Business, Professional, Enterprise)

2.8 Provider warrants that the use of the Provider License is free of third-party industrial property rights and that no other rights exist which restrict or exclude the use of the Provider License. Provider will conclude rights transfer agreements with his employees and freelancers to ensure that Provider holds all necessary right to grant the Provider License to User. Provider will indemnify User for any damage resulting from third party intellectual property rights in the Provider License. The Parties will notify each other if any third parties make such claims. If the Provider License is impaired by third party intellectual property rights, Provider will at its discretion either provide a workaround or will acquire the rights necessary for the User to make full use of the Provider License. If both aforementioned solutions are not viable, User shall have a right to terminate the agreement for cause.

3. Technical Requirements 3.1. In order to use any of the Services, the User shall check all technical details and conditions specified in the order form (hereinafter referred to as " Technical Requirements ").

3.2. The User is solely responsible for the fulfilment of the Technical Requirements. The Provider does not owe and/or provide any consultancy services in connection therewith, if not otherwise agreed with the Provider. The Provider provides support for Users using a paid subscription plan.

3.3. The use of Services may differ depending on the hardware and/or software used by the User.

4. User Materials 4.1. The Provider does not claim any ownership rights upon the User’s content. User must have the necessary rights to such information and content which he submits through and the right to grant the following rights and licenses to Provider. By uploading, streaming, emailing or otherwise transmitting any content to the Provider the User hereby grants the Provider the non-exclusive, worldwide, royalty-free, sub-licensable right to use, modify, transmit, store, archive, display and publish the content for the purpose of providing the Services.

4.2. All rights, which may arise from the developing metadata, models and qualitative as well as quantitative analysis of Dialogues (together “Metadata”) will lie or remain unlimitedly with the Provider. Metadata includes, but is not limited to information about how the User uses the Services, log files, diagnostic, crash, performance logs and reports, time User last used the Services. Metadata will be anonymized in a way that Provider is not able to attribute the data to a specific User.

5. Prices and Payment 5.1. Prices and fees are subject to the specific order form.

5.2. The Provider will issue invoices to the Customer. Payment is due within 30 days of the date of issue of the invoice unless expressly stated differently on the order form/offer.

5.3. Unless agreed otherwise, the Customer is obliged to pay in advance.

5.4. If the Customer is in default of payment, the Provider shall be entitled to demand interest on default in the amount of the statutory interest rate for default (eight percentage points above the base rate pursuant to Section 288 of German Civil Code). The Provider reserves the right to assert further claims.

5.5. The Provider may amend the price list of Services at any time observing statutory regulations and notifying the Users about the amendment.

5.6. The stated prices are listed in Euro (unless another currency is explicitly specified) and shall be understood as net prices excluding VAT.

5.7. The Provider may suspend access to the Services if any amount due to be paid by the User to the Provider are overdue by more than 30 days

6. Contract Period, Termination of Contract 6.1. This Agreement commences with its execution and will continue in force for the agreed subscription period (Clause 2.7.). This Agreement shall be automatically renewed for the same period each time the User does not terminate the Contract according to this Clause 6.

6.2. Either Party may terminate the Agreement by using the respective feature within the through a web-application available under https://app.mercury.ai or by giving written notice of the termination 30 days prior to the end of the ordered subscription period or to the end of the respective renewed period.

6.3. The right of termination for cause and without notice remains unaffected for both parties. A good cause for termination by the Provider shall include, but shall not be limited to, any of the following events:

6.3.1 The User commits any material breach of any term of the Terms of Service and the breach is not remediable; or the breach is remediable, but the other Party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or persistently breaches the terms of this Agreement.

6.3.2. The User is dissolved; ceases to conduct all (or substantially all) of its business; is, or becomes, unable to pay its debts as they fall due; is, or becomes, insolvent or is declared insolvent; or convenes a meeting, or makes, or proposes to make, any arrangement or composition with its creditors

6.3.3. An administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the User.

6.3.4. The User fails to pay any amount due to be paid to the Provider by the due date.

6.4. Any termination declaration must be at least in text form according to Section 126b of German Commercial Code (e.g. by letter, email) to mercury.ai UG (haftungsbeschränkt), Ritterstraße 8, 33602 Bielefeld, or to terms@mercury.ai.

6.5. Upon the User’s termination, the Provider will release any stored data owned by the User that has been uploaded in the account. This shall not apply to the data described in Clause 4.2.

7. Prohibited Use 7.1. Any inappropriate or illegal use, manipulation, or change of the Services is prohibited. It is particularly forbidden to use the Services to distribute illegal content and/or content that infringes third party rights, in particular but not limited to

7.1.1. pornographic, insulting, offensive, racist, threatening, infringing upon youth protection law, or other illegal or immoral contents or to advertise, offer, or sell such products;

7.1.2. malware;

7.1.3. threats to other Users;

7.1.4. content that affects or infringes the rights of third parties or that is covered by copyrights, unless the User owns the respective copyright or has the permission of the copyright owner;

7.2. Furthermore it is forbidden

7.2.1. to use temporary email addresses;

7.2.2. to create multiple accounts for disruptive or abusive purposes;

7.3. The Provider reserves the right to (i) delete any infringing content according to this Clause 7, (ii) immediately terminating the Agreement subject to Clause 6.3. and (iii) suspending the account of the User.

8. Warranties 8.1. The Provider shall, in the event of defects (other than non-substantial defects), have the right to either opt for defect remedy or replacement delivery; in doing so the Provider may also, as far as a User can be reasonably expected to accept this, remedy defects with the next release (update), which will then be provided free of charge.

8.2. Where defect remedy or replacement delivery fails, the User shall have the right to reasonably reduce the agreed fee.

8.3. The User warrants that they have the legal right and authority to enter into and perform their obligations under these Terms of Service. The User further warrants that any material, data and other content submitted, or otherwise transferred or published via the of the Services, does not infringe third party rights or any applicable law and does not consist of, or include, content according to Clause 7 hereof.

8.4. The Provider is not responsible or liable for the availability, accuracy, completeness, freshness and legality of the content.

8.5. The User acknowledges that complex software is never wholly free of defects, errors and bugs, and the Provider gives no warranty or representation that the software will be wholly free from such defects, errors and bugs.

8.6. The User acknowledges that the Provider does not warrant that the Services will be compatible with any application, program or software not specifically identified by the Provider.

9. Liability 9.1. The Provider shall take adequate measures in order to prevent the loss of data. However, the Provider shall not be liable for the loss of data to the extent that this would have been avoidable had the User taken adequate measures as far as the User is reasonably able to.

9.2. The liability of the Provider for damages, irrespective of the legal basis of such liability, applies only in the event of intentional or grossly negligent conduct. In the event of basic negligence (einfache Fahrlässigkeit ), the Provider shall only be liable for damage resulting from death, personal injury or damage to health, or for damage resulting from the violation of a fundamental contractual obligation (wesentliche Vertragspflicht) (an obligation the fulfillment of which renders the proper performance of the contract possible in the first instance and the compliance with which a contractual partner typically does, and is entitled to, rely upon); in such case, however, the liability of the Provider shall be limited to the reimbursement of foreseeable and typical damage.

9.3. The Provider will not be liable hereunder for any failure to timely perform its Services due to an event beyond their reasonable control, including force majeure; acts of terrorism; civil unrest; war; res; power cuts; epidemics.

9.4. If the liability of the Provider is excluded or restricted, this also applies to the personal liability of their employees, representatives and agents.

10. Indemnification 10.1. A User will indemnify, defend the Provider and their officers, directors, employees for any and all claims, suits, litigation, causes of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities that arise out of, or in connection with (i) the Users use of the Services; (ii) any breach by a User of any warranty defined in Section 8; (iii) any claim that the User’s content caused damage to a third party.

10.2. In cases of an aforementioned enforcement of claims by third parties, the User will provide the Provider with all the information that is needed for the examination of the claim and for the defence against it. The User shall provide the information immediately, truthfully, and completely.

10.3. The regulation of liability of a User or their obligation of indemnification shall apply to the same extent in the event of an act of their sub-account user (as far as the right to use such sub-account is agreed between the parties).

11. Use for Reference The User agrees that the Provider may use information provided by the User (i.e. the name/trademark) for marketing purposes as reference on the Website. The User may withdraw such consent by writing an email to the Provider to terms@mercury.ai.

12. Data Protection 12.1 This privacy policy only relates to personal data transmitted to Provider in the course of serving Dialogues to Platforms. For any contractual relationship and data protection issues between the User and the Platform, please refer to the privacy policy of the relevant Platform. The use of their services is governed by their own terms and privacy policies. Moreover the User is obliged to provide its own terms and privacy policy to end users (“End User”) governing the collection, use and transfer of End User data.

12.2 The Parties shall observe the applicable data protection law. The User agrees that personal data which is required for the implementation of the Service Contract can be stored and processed.

12.3 The User may withdraw his consent by writing an email to the Provider to terms@mercury.ai. If withdrawal of such consent makes providing the Services impossible, Provider has the right to terminate the Contract.

12.4 Provider represents and warrants (including for its employees and freelancers) to use Confidential information, including authorization codes and passwords, only to achieve the purpose of this agreement. Other than for this purpose, such information shall not be stored, transferred or exploited. “Confidential Information” means information that should reasonably have been understood by recipient to be proprietary and confidential to discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself. Confidential Information may be disclosed in written or other tangible form (including on magnetic media) or by oral, visual or other means. Not confidential shall be information which is publicly known at the time of disclosure to the receiving party; becomes publicly known otherwise than through a breach of this Agreement by the receiving Party or its representatives; can be proved by the receiving party to have reached it otherwise than by being communicated by the other party including being known to it prior to disclosure or having been developed by or for it wholly independently of the other party; or having been obtained from a third party without any restriction on disclosure on such third party of which the recipient is aware, having made due enquiry; or is required by law, regulation or order of a competent authority (including any regulatory or governmental body).

13. Miscellaneous 13.1. Any contracts entered into between the Provider and a User shall be governed by the laws of the Federal Republic of Germany with exclusion of the UN Convention on the International Sale of Goods (CISG).

13.2. The courts in Bielefeld, Germany, shall have exclusive jurisdiction in respect to all disputes arising out of, or in connection with, the relevant contract.

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