SaaS Agreement (Chattermill Teams)
CHATTERMILL ANALYTICS LIMITED incorporated and registered in England and Wales with company number 09604448 whose registered office is at 68 Hanbury Street, London, England, E1 5JL ("Chattermill")
and the customer ("you" "your" "Customer")
Capitalized terms used but not defined herein, shall have the respective
meanings given to them in the relevant Pricing Plan.
2.1 In this Agreement unless the context otherwise requires:
(a) reference to a person includes a legal person (such as a limited company) as well as a natural person;
(b) clause headings are for convenience only and shall not affect the construction of this Agreement;
(c) reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation.
2.2 In the event of any conflict between the Pricing Plan and these terms and conditions, these terms and conditions shall govern except to the extent specifically provided for in the Pricing Plan (Special Terms) by reference to the affected provision or provisions of these terms and conditions.
3. PROVISION OF SERVICES
3.1 Chattermill shall initiate set-up of the Services from the Start Date.
3.2 The Customer is responsible for its own equipment and internet connection (and any internet or mobile data charges incurred) to enable it to connect to and access the Service.
3.3 The Customer agrees that Chattermill's provision of the Services shall be conditional upon:
(a) the Customer promptly providing such assistance, information and decision-making as reasonably required by Chattermill from time-to-time; and
(b) all Customer Data being reliable, accurate and complete in all respects.
4. GRANT OF LICENCE AND SCOPE OF AUTHORISED USE
4.1 Subject to full payment of the applicable fees, Chattermill grants to the Customer a non-transferable right and licence to access and use the Services in accordance with the relevant Pricing Plan.
4.2 The Customer may not sub-license the right to access or use the Services to any unaffiliated third party.
4.4 The Customer shall not:
(a) except as expressly permitted by this Agreement, permit any third party to access or use the Services;
(b) copy, translate, modify, adapt or create derivative works from the Services;
(c) attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software, in order to: (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics of the Service; or (c) copy any ideas, features, functions or graphics of the Service;
(d) employ any hardware, software, device or other technique to pool connections or reduce the number of devices or users that directly access or use the Services in order to
circumvent any restrictions on scope of authorised use contained in this Agreement;
(e) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of the Services or Software;
(f) attempt to gain unauthorised access to or interfere with the proper working of the Services or Software;
(g) attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Services or Software or any associated website, computer system, server, router or any other internet-connected device;
(h) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through the Services; or
(i) use the Services to store, distribute or transmit any Viruses or any other material during the course of use of the Services that is (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or (f) is otherwise illegal or causes damage or injury to any person or property.
Chattermill reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.
The Customer shall procure compliance of this Clause by each Authorised User.
4.5 Chattermill shall comply with its security policy in respect of the Customer Data,
provided that the Customer agrees that it shall not rely on the Service as the sole storage of Customer Data.
5. ADMINISTRATOR AND AUTHORISED USERS
5.1 The Customer shall designate a System Administrator and may change that System Administrator by giving notice to Chattermill in writing by email.
5.2 The Customer's System Administrator may establish accounts for an Authorised User. The Customer is solely responsible for determining the skill, competence, character
and other attributes of any Authorised User.
5.3 The Customer shall be responsible for all access to and use of the Services by Authorised Users. The Customer shall ensure that each Authorised User complies with the obligations on the Customer regarding authorised use and restrictions on use and shall promptly notify Chattermill in the event that the Customer becomes aware of any breach of this Agreement by any Authorised User.
5.4 The Customer shall be responsible for ensuring the security and confidentiality of all log-in IDs. Under no circumstances may IDs be transferred or shared between individual Authorised Users nor 'general' (non-individually assigned) IDs created. The Customer will be responsible for all activities that occur under the IDs and shall promptly notify Chattermill upon becoming aware of any unauthorised access to or use of the Services, and provide all reasonable assistance to Chattermill to bring to an end to such unauthorised access or use.
6. FEES, INVOICING AND PAYMENT
6.1 The Customer will pay Chattermill the applicable fees described in the Pricing Plan for the Services via bank transfer to such bank account as is nominated by Chattermill from time to time (or via debit or credit card (if applicable)), in accordance with the terms of this Agreement.
6.2 Any fees will (subject to the Pricing Plan) be payable either in monthly or annually in advance. Invoices are payable in full and must be paid within 30 days of receipt of the invoice by the Customer. Any fees or additional fees due under this Agreement are exclusive of VAT or any other sales tax (where applicable). Any fees, once paid are non‑refundable.
6.3 If the Customer's use of the Services exceeds the Authorised User Limit or Comment Quota set out in your Pricing Plan or otherwise requires the payment of additional fees (per the terms of this Agreement), or if the parties have agreed to the provision of any additional services, the Customer shall be billed for such usage and the Customer agrees to pay the additional fees in accordance with this Clause 6 (or as otherwise agreed between the parties in writing). Chattermill will not charge the Customer for any additional services without obtaining the prior consent of the Customer.
6.4 Chattermill reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the Initial Term or then-current Renewal Period, upon thirty (30) days prior notice to the Customer (which may be sent by email).
6.5 If the Customer believes that Chattermill has billed the Customer incorrectly, the Customer must contact Chattermill no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Chattermill's customer support department. The Customer shall have no right to set off or retain any amounts otherwise payable to Chattermill.
6.6 If the Customer fails to pay an invoice in full by the due date, Chattermill shall be entitled to claim costs and interest in accordance with the Late Payments of Commercial Debts (Interest) Act 1998 on such outstanding sums. Chattermill may, without liability to the Customer, disable the Customer's account and access to all or part of the Services and Chattermill shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
6.7 At the end of the Initial Term and upon each subsequent Renewal Period, Chattermill reserves the right to increase any fees by upto 10% to account for (amongst other things) annual inflation and any increase to its cost base.
7. COMMENTS PROCESSED QUOTA (CPQ)
7.1 The Customer shall not exceed the CPQ set out in your Pricing Plan. If the CPQ is exceeded, Chattermill reserves the right to suspend the processing of Customer Data.
7.2 Chattermill reserves the right to charge the Customer for any additional comments processed that are in excess of the Comment Quota. Chattermill will notify the Customer once (a) 10% or less of the Comment Quota remains; and (b) the Comment Quota has finally been exhausted at which point the Customer may elect to renew or upgrade their existing plan. If the Customer fails to renew or upgrade their existing plan and the Comment Quota has been exceeded, then overage charges will apply for each additional 1000 comments processed (or part thereof) (Comment Quota/Fees x 1.25 x 1000). Where overage charges apply, they will become payable in accordance with the terms of Clause 6.
8.1 The parties may at any time agree to renew or upgrade their existing pricing plan and enter into a new Pricing Plan.
8.2 Prior to the expiry of the Term, the Customer may at its sole discretion elect to exercise one of a number of upgrade or renewal offers which Chattermill may make available from time to time.
9.1 Each party warrants that it has the right to enter into this Agreement and to provide the Services as contemplated by this Agreement;
9.2 Chattermill warrants that:
(a) the Services shall, under normal operating conditions, substantially conform to the functionality described under this Agreement; and
(b) the Services shall be performed with reasonable care and skill;
9.3 If any of the warranties in Clause 9.2 is breached, the Customer shall notify Chattermill as soon as commercially practicable. The Customer shall give Chattermill a reasonable time to resolve any problem (without additional charge to the Customer).
9.4 Except as expressly set out in this Agreement, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Services (including any Chattermill Content) or to anything supplied or provided by Chattermill under this Agreement. In particular, Chattermill does not warrant that the operation of the Services will be uninterrupted error-free, or that they will meet the Customer's requirements.
9.5 The Customer is solely responsible for ensuring that the Services are appropriate and suitable for its needs. The Customer agrees that (a) the Chattermill Content is based on Chattermill’s interpretation of the Customer Data and is provided for information and guidance only; (b) the Chattermill Content does not constitute any form of advice or recommendation by Chattermill; (c) the Customer should exercise its own professional skill, discretion and judgement; and (d) Chattermill does not warrant that the Chattermill Content is accurate or complete or that any particular result will be achievable or achieved in using the Services and/or the Chattermill Content.
Chattermill shall bare no responsibility whatsoever for the Chattermill Content shared by
9.6 The Customer shall ensure that its use of the Services and the Chattermil Content complies, in all respects, with all applicable laws, regulatory requirements, mandatory standards and codes of practice of any competent authority for the time being in force.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
10.2 Chattermill and its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Chattermill's brands, trademarks, service marks and logos, the Services, the Chattermill Content, formulae, algorithms, product development plans, the Software (including source code) and any model and insight data. Except as expressly permitted by this Agreement, the Customer may not use any of Chattermill's Intellectual Property Rights without Chattermill's prior written consent.
10.3 The Customer shall promptly bring to the attention of Chattermill any improper or wrongful use of any Intellectual Property Rights of Chattermill which comes to the Customer's notice. The Customer shall assist Chattermill in taking all steps to defend Chattermill's Intellectual Property Rights, but not institute legal proceedings of its own accord.
10.4 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
10.5 The Customer grants Chattermill, free of charge, a royalty-free, worldwide, non-exclusive licence to use the Customer Data:
(a) to the extent necessary to enable Chattermill to provide the Service and to perform its obligations under this Agreement (subject to Clause 13); and
(b) on a continuing basis for product and service development and improvement subject to Clause 14 of this Agreement.
10.6 The Customer warrants that the Customer owns the Customer Data and/or is otherwise entitled to grant the foregoing licence.
10.7 Chattermill reserves the right to use the name and/or logo of the Customer in publicity, advertising and marketing material.
11.1 The Customer shall indemnify Chattermill from and against all loss or damage that
Chattermill incurs or suffers however arising as a result of or in connection with:
(a) any Customer Data or Chattermill's receipt, possession and/or use, in accordance with this Agreement of any Customer Data; and/or
(b) any claim by a third party as a result of the Customer's use of the Services or Chattermill Content save where such use is in accordance with the terms of this Agreement.
11.2 Provided only that the Customer acts in accordance with this Agreement, Chattermill shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services infringes (as of the Effective Date) any Intellectual Property Rights of a third party and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that the Customer (a) notifies Chattermill of any claim within 10 days of receipt of a claim; (b) does not make any admission of liability, agreement, settlement or compromise in relation to a claim without Chattermill’s prior written consent; (c) gives to Chattermill and its professional advisers all assistance as may be required in relation to a claim; (d) at the request of Chattermill, gives Chattermill the exclusive control and right to defend a claim and make settlements in relation to a claim; and (e) mitigates any losses in relation to such a claim, including itself cease, and procure that any Authorised Users cease all use of the Services
12.1 Nothing in this Agreement limits or excludes either party's liability: for death
or personal injury caused by its negligence; for fraudulent misrepresentation or for any other fraudulent act or omission; to pay sums properly due and owing to the other in the normal course of performance of this Agreement; or for any other liability which may not lawfully be excluded or limited.
12.2 Subject to Clause 12.1, neither party shall be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers, contracts or opportunity; (d) loss of or damage to reputation or goodwill; (e) loss of anticipated savings; (f) loss of any software or data; (g) loss of use of hardware, software or data; (h) loss or waste of management or other staff time; or (i) indirect, consequential or special loss; arising out of or relating to this Agreement. The parties agree that the provisions of this Clause 12.2 are severable.
12.3 Subject to Clause 12.1, Chattermill shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained to the extent it is a result of:
(a) the use of the Services or Chattermill Content except in accordance with the terms of this Agreement;
(b) any adaptation or modification of the Services or Chattermill Content, or integration or combination with any other equipment, software, product or material not supplied by Chattermill, in each case carried out by anyone other than Chattermill or without Chattermill's express written consent;
(c) any defect arising in the Services or Chattermill Content as a result of misuse, wilful damage, negligence on the part of anyone other than Chattermill, abnormal operating conditions or any failure by the Customer to follow any instructions of Chattermill as to use;
(d) the compliance by Chattermill with any design, specification or instructions provided by the Customer or on the Customer's behalf; or
(e) any Customer Data.
12.4 Subject to Clause 12.1, Chattermill’s total liability (including under any indemnity) arising out of or in relation to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) shall be limited to the aggregate amount paid or payable by the Customer to Chattermill pursuant to this Agreement.
13.1 Subject to 13.2, each party shall:
(a) keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
(b) only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
(c) not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and sub-contractors on a
'need to know' basis as strictly required for the purposes of this Agreement); and
(d) promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, confirming in writing that it has done so.
13.2 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 13.2, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
14. DATA PROTECTION
14.1 Each party shall:
(a) during the term of this Agreement, comply with Data Protection Legislation; and
(b) to the extent applicable under such Data Protection Legislation, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under this Agreement.
14.2 The Customer warrants and represents that no personal data (as defined by the Data Protection Legislation) will be included in the Customer Data without obtaining the prior written consent of Chattermill.
14.3 The parties acknowledge that if Chattermill processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the Customer is the controller and Chattermill is the processor for the purposes of Data Protection Legislation.
14.4 To the extent that any personal data is processed pursuant to the provision of the Services, and either (i) the personal data relates to individuals located in the EEA, or (ii) the Customer is established in the EEA, the parties shall process the personal data in accordance with the data processing agreement ("DPA") which is incorporated into this Agreement by reference. For the purposes of this Clause, the terms "personal data" and "process" have the meaning given in the DPA.
15. TERM AND TERMINATION
15.1 This Agreement shall, unless otherwise terminated as provided in this Clause 15, commence on the date you signed-up to the Pricing Plan and will continue for the duration of the relevant Term. Thereafter, this Agreement shall (unless renewed or upgraded earlier) be automatically renewed for successive terms of equal duration (each a "Renewal Period"), unless: (a) a Trial Term has come to an end; (b) either party notifies the other party of termination, in writing, at least 30 days before the end of the relevant Term or Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Term or Renewal Period; or (c) as otherwise terminated in accordance with the provisions of this Clause.
15.2 Either party may terminate this Agreement by giving the other written notice by email:
(a) if the other materially breaches any term of this Agreement and it is not possible to remedy that breach;
(b) if the other materially breaches any term of this agreement and it is possible to remedy that breach, but the other fails to do so within 30 days of being requested in writing to do so; or
(c) if the other is the subject of an administration, receivership, liquidation, winding-up or other analogous insolvency proceeding or event.
15.3 Chattermill may, in addition (without liability), terminate this Agreement, or alternatively suspend access to and use of the Services, by giving the Customer written notice by email if:
(a) any undisputed invoiced amount is outstanding 30 days after the due date for payment;
(b) any provision of Clause 4.4 is breached; or
(c) the Customer is in persistent or repeated breach of any of its obligations under this Agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).
16. CONSEQUENCES OF TERMINATION
16.1 Upon termination of this Agreement for any reason:
(a) the Customer shall immediately cease to access, and discontinue all use of, the Services;
(b) all amounts payable to Chattermill by the Customer shall become immediately due and payable; and
(c) Chattermill shall use reasonable endeavours to make available to the Customer, within 30 days of the effective date of termination, a file of Customer Data, if the Customer so requests at the time notice of termination is provided subject to payment of Chattermill’s reasonable costs.
Termination of this Agreement for any reason will not affect any accrued rights or liabilities which either party may have by the time termination takes effect; or the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination.
17. FORCE MAJEURE
17.1 Neither party shall have liability to the other under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (a "Force Majeure Event"), provided that the affected party:
(a) notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely effects;
(b) uses reasonable efforts to mitigate the effects of the circumstances so as to minimise or avoid any adverse impact on the other; and
(c) uses reasonable efforts to resume performance as soon as reasonably practicable.
A Force Majeure event shall not include a shortage or lack of available funds on behalf of
18. NON SOLICITATION
18.1 Neither Party will directly or indirectly solicit or attempt to solicit any of the other Party's employees who have worked in procuring or providing Services under the contract. Each Party agrees that the other Party is entitled to recruit personnel as a result of a general public recruitment advertisement or campaign.
19.1 Neither party shall assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without obtaining the prior written consent of the other party.
19.2 All notices and consents relating to this Agreement (but excluding any proceedings or other documents in any legal action) must be in writing by email. Notices must be sent to the email address of the recipient set out in your Pricing Plan or such other email address as otherwise notified by the relevant party. Notices shall be sent by email and shall be treated as having been delivered one Business Day after transmission.
19.3 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.4 If any provision of this Agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of
this Agreement or this Agreement as a whole.
19.5 All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
19.6 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way
19.7 A person who is not a party to this Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or
19.8 Each party shall ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
19.9 This Agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.10 Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
19.11 This Agreement is governed by the laws of England and Wales and the courts of England shall have exclusive jurisdiction.