Chameleon-i – SaaS Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.

“Applicable Laws” means:

(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.

(b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Chameleon-i is subject.

“Applicable Data Protection Laws” means:

(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.

(b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Chameleon-i is subject, which relates to the protection of personal data.

“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised by the Customer to access the Platform and use Chameleon-i’s Apps and the Documentation in connection with the Services.

“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

“Chameleon-i” means CHAMELEON-I LTD, a company incorporated in England and Wales under company number 12764021 and having its registered office at 5 West Court, Enterprise Road, Maidstone, Kent, United Kingdom, ME15 6JD.

“Chameleon-i’s Apps” any applications provided by Chameleon-i for the Authorised Users’ use in connection with the provision of the Services, including both source code and object code.

“Chameleon-i Personal Data” any personal data which Chameleon-i processes in connection with the Contract, in the capacity of a controller.

“Commercially Reasonable Efforts” the same degree of priority and diligence with which Chameleon-i meets the support needs of its other customers.

“Conditions” these terms and conditions set out in clause 1 (Definitions and Interpretation) to clause 24 (Governing Law and Jurisdiction) (inclusive) and in the Schedule to these terms and conditions.

“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.

“Contract” the contract between the Customer and Chameleon-i for the supply of the Services in accordance with these Conditions.

“Contract Year” means a 12-month period commencing with the Start Date or any anniversary of it.

“Customer” means the organisation who purchases a subscription to access the Services from Chameleon-i.

“Customer Cause” any improper use, misuse or unauthorised alteration of the Software, the Documentation or the Services by the Customer or any of the Authorised Users or any use by the Customer or any of the Authorised Users of any software not provided or approved by Chameleon-I or any issues associated with the Customer’s or any third party’s computing devices, local area networks or internet service provider connections.

“Customer Data” means the data inputted by the Authorised Users, or Chameleon-i on the Customer’s behalf in connection with the Services including the Customer Personal Data.

Customer Personal Data: any personal data which Chameleon-i processes in connection with the Contract, in the capacity of a processor on behalf of the Customer.

“Documentation” means any documentation made available to the Authorised Users by Chameleon-i which sets out a description of the Services and the user instructions for use of the Platform and/or Chameleon-i’s Apps in connection with the Services.

“EU GDPR” the General Data Protection Regulation ((EU) 2016/679).

“Fault” any failure of the Software to operate in all material respects in accordance with its specification.

“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

“Maintenance Release” a release of the Software which corrects faults or otherwise amends or upgrades the Software, but which does not constitute a New Feature.

“New Feature” any modification to the Software which offers significant new functional capabilities.

“Normal Business Hours” 9.00 am to 6.00 pm Greenwich Mean Time, each Business Day.

“Out-of-scope Technical Support Services” any services provided by Chameleon-i in connection with any apparent problem regarding the Software or the Services reasonably determined by Chameleon-i (i) not to be a Fault, or (ii) to have been caused by a Customer Cause or a cause outside Chameleon-i’s control (including any investigational work resulting in such a determination).

“Platform” Chameleon-i’s infrastructure and cloud computing platform and runtime environment to be used by the Customer and its Authorised Users in connection with the receipt of the Services.

“Purpose” the purposes for which the Customer Personal Data is processed, as set out in Part 2 of the schedule to this agreement.

“Renewal Period” following the end of the Trial Period, the period between each monthly recurrence of the day immediately following the end of the Trial Period.

“Services” means the subscription services provided by Chameleon-i to the Customer under the Contract which enables access to and use of the Software and the Documentation.

“Software” the Platform and/or Chameleon-i’s Apps.

“Start Date” means the date on which the Customer is granted access to the Platform.

“Subscription Fees” means the subscription fees payable by the Customer to Chameleon-i for the User Subscriptions.

“Support” means the support levels set out in clause 5.

“Subscription Term” has the meaning given in clause 13.1 (being the Trial Period together with any subsequent Renewal Periods).

“Technical Support Request” a request made by the Customer for the correction of a Fault.

“Trial” the opportunity granted by Chameleon-i for the Customer to use the Services free of charge so that the Customer can evaluate whether the Services meet its needs.

“Trial Period” the duration of a Trial which is 30 days.

“User Subscriptions” means the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Software and the Documentation.

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

“UK GDPR” has the meaning given to it in the Data Protection Act 2018.

1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.

1.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.5 Any words following the terms including, include, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. USER SUBSCRIPTIONS

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with the Contract (or subject to Chameleon-i granting the Customer a Trial) and subject to the other terms and conditions in the Contract, Chameleon-i hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to access the Platform and use Chameleon-i’s Apps, the Services and the Documentation during the Subscription Term or the Trial Period, as applicable, solely for the Customer’s internal business operations (in their ordinary course).

2.2 In relation to the Authorised Users, the Customer undertakes that:

(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation; and

(c) each Authorised User shall keep a secure password for their use of the Services and the Documentation and that each Authorised User shall keep their password confidential.

2.3 The Customer shall not and shall ensure that the Authorised Users shall not access, store, distribute or transmit any material during the course of its or their use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images or promotes unlawful violence;

(d) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(e) is otherwise illegal or causes damage or injury to any person or property;

and Chameleon-i reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Authorised Users’ access to any material that breaches the provisions of this clause.

2.4 The Customer shall not and shall ensure that its Authorised Users shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or the Documentation in any form or media or by any means; or

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

(b) access all or any part of the Services, the Software and/or the Documentation in order to build a product or service which competes with the Services, the Software and/or the Documentation; or

(c) use the Services, the Software and/or the Documentation to provide services to third parties; or

(d) subject to clause 19, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or the Documentation available to any third party except the Authorised Users;

(e) attempt to obtain, or assist third parties in obtaining, access to the Services, the Software and/or the Documentation, other than as provided under this clause 2; or

(f) introduce, or permit the introduction of, any Virus into Chameleon-i’s network and information systems.

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Chameleon-i.

2.6 The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

3. ADDITIONAL USER SUBSCRIPTIONS

3.1 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and Chameleon-i shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Contract.

3.2 If such additional User Subscriptions are purchased by the Customer part way through any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Chameleon-i for the remainder of the then current Renewal Period.

4. SERVICES  

4.1 Chameleon-i shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the provisions of the Contract.

4.2 Chameleon-i shall use all reasonable commercial endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 10.00 pm to 4.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Chameleon-i has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.

5. SUPPORT

5.1 Chameleon-i shall provide the Support detailed in this clause 5 in Normal Business Hours.

5.2 The Customer acknowledges that Chameleon-i’s ability to fix Faults is dependent upon the full and timely co-operation of the Customer (which the Customer agrees to provide).

5.3 Prior to notifying Chameleon-i of any Fault, the Customer shall follow Chameleon-i’s operating and troubleshooting procedures for addressing issues with the Software or the Services.

5.4 Chameleon-i shall use Commercially Reasonable Efforts to correct all Faults notified to it by the Customer. Subject to the following:

(a) Chameleon-i may reasonably determine that any services are Out-of-scope Technical Support Services. If Chameleon-i makes any such determination, it shall promptly notify the Customer of that determination and suggest a way forward.

(b) Chameleon-i shall use its reasonable endeavours to provide Out-of-scope Technical Support Services. In respect of any such services that it provides, additional charges may apply which will be agreed in advance with the Customer.

(c) Chameleon-i shall prioritise all Technical Support Requests based on its reasonable assessment of the severity level of the problem reported.

(d) Chameleon-i shall give the Customer regular updates of the nature and status of its efforts to correct any Fault.

5.5 From time to time during the Subscription Term, in addition to the services referred to above, Chameleon-i may modify and/or upgrade the Software with Maintenance Releases and New Features. Access to New Features may be subject to additional fees.

5.6 The Customer acknowledges that any customised requirements or features which do not already form part of the Software and which would require separate development work to be carried out by Chameleon-i may be subject to separate fees and will be considered and agreed to separately on a case-by-case basis.

6. CUSTOMER DATA  

6.1 For the purposes of this clause 6, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.

6.2 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.

6.3 The parties have determined that, for the purposes of Applicable Data Protection Laws:

(a) Chameleon-i shall act as controller of the personal data set out in paragraph 1.1 of Part 1 of the schedule to this agreement;

(b) Chameleon-i shall process the personal data set out in paragraph 1.2 of Part 1 of the schedule to this agreement as a processor on behalf of the Customer; and

6.4 Should the determination in clause 6.3 change, then each party shall work together in good faith to make any changes which are necessary to the schedule to this agreement.

6.5 By entering into the Contract, the Customer consents to (and shall procure all required consents, from its Authorised Users) in respect of all actions taken by Chameleon-i in connection with the processing of Chameleon-i Personal Data.

6.6 Without prejudice to the generality of clause 6.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Chameleon-i Personal Data and Customer Personal Data to Chameleon-i and/or lawful collection of the same by Chameleon-i for the duration and purposes of the Contract.

6.7 In relation to the Customer Personal Data, Part 2 of the schedule to this agreement sets out the scope, nature and purpose of processing by Chameleon-i, the duration of the processing and the types of personal data and categories of data subject.

6.8 Without prejudice to the generality of clause 6.2 Chameleon-i shall, in relation to Customer Personal Data:

(a) process that Customer Personal Data only on the documented instructions of the Customer, unless Chameleon-i is required by Applicable Laws to otherwise process that Customer Personal Data. Where Chameleon-i is relying on Applicable Laws as the basis for processing Customer Personal Data, Chameleon-i shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Chameleon-i from so notifying the Customer on important grounds of public interest. Chameleon-i shall inform the Customer if, in the opinion of Chameleon-i, the instructions of the Customer infringe Applicable Data Protection Laws;

(b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

(c) ensure that any personnel engaged and authorised by Chameleon-i to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

(d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Chameleon-i), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

(f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Contract unless Chameleon-i is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this clause 6.8(f) Customer Personal Data shall be considered deleted where it is put beyond further use by Chameleon-i; and

(g) maintain records to demonstrate its compliance with this clause 6 and allow for reasonable audits by the Customer or the Customer’s designated auditor, for this purpose, on reasonable written notice.

6.9 The Customer hereby provides its prior, general authorisation for Chameleon-i to:

(a) appoint processors to process the Customer Personal Data, provided that Chameleon-i:

(i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Chameleon-i in this clause 6;

(ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Chameleon-i; and

(iii) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Chameleon-i’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Chameleon-i for any losses, damages, costs (including legal fees) and expenses suffered by Chameleon-i in accommodating the objection; and

(b) transfer Customer Personal Data outside of the UK as required for the Purpose, provided that Chameleon-i shall ensure that all such transfers are effected in accordance with Applicable Data Protection Law. For these purposes, the Customer shall promptly comply with any reasonable request of Chameleon-i, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

6.10 Either party may, at any time on not less than 30 days’ notice, revise clause 6.9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

7. CHAMELEON-I’S OBLIGATIONS  

7.1 Chameleon-i undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care and that the Software will function substantially in accordance with the Documentation.

7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services or the Software contrary to Chameleon-i’s instructions, or modification or alteration of the Services or the Software by any party other than Chameleon-i or Chameleon-i’s duly authorised contractors or agents. If the Services or the Software do not conform with the foregoing undertaking, Chameleon-i will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.

7.3 Chameleon-i:

(a) does not warrant that the Customer’s use of the Services or of the Software will be uninterrupted or error-free; or that the Services, the Software, the Documentation and/or the information or functionality obtained by the Customer through the Services will meet the Customer’s requirements;

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services, the Software and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and

(c) is not responsible for any internet blacklisting caused by the Customer’s use of the Services and in particular the Customer’s use of the Platform’s bulk email sending service.

7.4 The Contract shall not prevent Chameleon-i from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.

8. CUSTOMER’S OBLIGATIONS  

The Customer shall:

(a) provide Chameleon-i with:

(i) all necessary co-operation in relation to the Contract; and

(ii) all necessary access to such information as may be required by Chameleon-i;

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

(b) without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;

(c) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Chameleon-i may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorised Users use the Services, the Software and the Documentation in accordance with the Contract and shall be responsible for any Authorised User causing a breach of the Contract;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Chameleon-i to perform its obligations under the Contract, including, without limitation the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by Chameleon-i from time to time; and

(g) be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Chameleon-i’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

9. CHARGES AND PAYMENT  

9.1 The Customer shall pay the Subscription Fees to Chameleon-i in accordance with this clause 9.

9.2 Chameleon-i shall invoice the Customer for the Subscription Fees monthly and the Customer shall pay the payments due under each invoice within 14 days of receipt.

9.3 If Chameleon-i has not received a payment due to it under the Contract by its due date, then, without prejudice to any other rights and remedies of Chameleon-i:

(a) Chameleon-i may, without liability to the Customer, disable the Customer’s and the Authorised Users’ passwords, accounts and access to all or part of the Services and the Software and Chameleon-i shall be under no obligation to provide any or all of the Services or the Software while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at a monthly rate of 1.5% commencing on the due date and continuing until fully paid, whether before or after judgment; and

(c) if non-payment continues for a period of more than 90 days, Chameleon-i may, at its option, delete all the Customer Data.

9.4 All amounts and fees stated or referred to in the Contract:

(a) shall be payable in the currency in which they are invoiced;

(b) are non-cancellable and non-refundable; and

(c) are exclusive of value added tax, which shall be added to Chameleon-i’s invoice(s) at the appropriate rate, if applicable.

9.5 Chameleon-i shall be entitled to increase the Subscription Fees and the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3 at the start of each Renewal Period upon 60 days’ prior notice to the Customer.

9.6 Except in exceptional circumstances the Customer shall pay Chameleon by direct debit.

10. PROPRIETARY RIGHTS  

10.1 The Customer acknowledges and agrees that Chameleon-i and/or its licensors own all Intellectual Property Rights in the Services, the Software and the Documentation including in the product of any development and/or integration work that Chameleon-i may carry out for the Customer including where any elements of such product were developed as a result of or using the Customer’s ideas, suggestions or other feedback supplied by the Customer. Except as expressly stated herein, the Contract does not grant the Customer any Intellectual Property Rights in or any other rights or licences in respect of the Services, the Software, the Documentation or of the product of any development and/or integration work that Chameleon-i may carry out for the Customer.

10.2 Chameleon-i confirms that it has all the rights in relation to the Services, the Software and the Documentation that are necessary to grant all the rights it purports to grant under the Contract.

11. CONFIDENTIALITY

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

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

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

(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, which independent development can be shown by written evidence.

11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of the Contract.

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

11.4 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 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5 The Customer acknowledges that details of the Services constitute Chameleon-i’s Confidential Information.

11.6 Chameleon-i acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7 Chameleon-i may compile statistical information related to the performance of the Services for the purposes of improving the Software and Services.

11.8 Unless the Customer requests otherwise in writing, Chameleon-i may include the Customer’s name and logo in its marketing materials and on its website.

11.9 The above provisions of this clause 11 shall survive termination of the Contract, however arising.

12. LIMITATION OF LIABILITY   

12.1 Except as expressly and specifically provided in the Contract:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services, the Software and the Documentation by the Customer, and for conclusions drawn from such use. Chameleon-i shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Chameleon-i by the Customer in connection with the Services, or any actions taken by Chameleon-i at the Customer’s direction;

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

(c) the Services, the Software and the Documentation are provided to the Customer on an “as is” basis.

12.2 Nothing in the Contract shall limit or exclude the liability of Chameleon-i:

(a) for death or personal injury caused by Chameleon-i’s negligence;

(b) for fraud or fraudulent misrepresentation; or

(c) for any matter in respect of which it would be unlawful to limit or exclude liability.

12.3 Subject to clause 12.1 and clause 12.2:

(a) Chameleon-i shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and

(b) Chameleon-i’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall not exceed the cap.

12.4 In clause 12.3(b) and in this clause 12.4:

(a) cap. The cap is one hundred per cent (100%) of the total charges in the Contract Year in which the breach of contract, tort, duty, misrepresentation or other default attributable to Chameleon-i occurred; and

(b) total charges. The total charges means all sums paid to Chameleon-i by the Customer under the Contract in the Contract Year in which the breach of contract, tort, duty, misrepresentation or other default attributable to Chameleon-i occurred.

13. TERM AND TERMINATION  

13.1 The Contract shall, unless otherwise terminated as provided in this clause 13, commence on the Start Date and shall continue for the Trial Period and, thereafter, the Contract shall be automatically renewed for successive monthly periods (each a Renewal Period), unless:

(a) the Customer notifies Chameleon-i before the expiry of the Trial Period that it does not wish to receive the Services beyond the expiry of the Trial Period; or

(b) either party notifies the other party of termination, in writing, at least 30 days before the end of any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Renewal Period; or

(c) otherwise terminated in accordance with the provisions of the Contract;

and the Trial Period together with any subsequent Renewal Period shall constitute the Subscription Term.

13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other provisions of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so; and

(c) the other party  makes a resolution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an administration or winding-up order is made or an administrator or receiver is appointed.

13.3 On termination of the Contract for any reason:

(a) all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Services, the Software and the Documentation;

(b) the Customer shall immediately and permanently erase any Software made available or supplied by Chameleon-i to the Customer and contained within any of the Customer’s platforms, networks or systems;

(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(d) Chameleon-i may destroy or otherwise dispose of any of the Customer Data in its possession unless Chameleon-i receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Chameleon-i shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay £1,000 plus VAT for a full data export, or the Customer can download the last 4 weeks of Customer Data for a recurring monthly fee of £20, regardless of whether or not the Contract has been terminated in accordance with this clause 13; and

(e) 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 the Contract which existed at or before the date of termination shall not be affected or prejudiced.

14. FORCE MAJEURE  

Chameleon-i shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, epidemic, pandemic, strikes, lock-outs or other industrial disputes (whether involving the workforce of Chameleon-i or any other party), 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, provided that the Customer is notified of such an event and its expected duration.

15. VARIATION  

No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16. WAIVER 

No failure or delay by a party to exercise any right or remedy provided under the Contract 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.

17. SEVERANCE  

17.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.

17.2 If any provision or part-provision of the Contract is deemed deleted under clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

18. ENTIRE AGREEMENT  

18.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

18.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

19. ASSIGNMENT  

19.1 The Customer shall not, without the prior written consent of Chameleon-i, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

19.2 Chameleon-i may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

20. THIRD PARTY RIGHTS

The Contract does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

21. COUNTERPARTS

The Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

22. NO PARTNERSHIP

Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

23. NOTICES

23.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be: (a) delivered by hand to its registered office (if a company) or its principal place of business (in any other case); (b) sent by email to the relevant contact email address as stated by each party.

23.2 Any notice shall be deemed to have been received if (a) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or (b) if sent by email at the time of the transmission provided that no bounceback message is received.  This clause 23 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution

24. GOVERNING LAW AND JURISDICTION  

24.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

24.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

Schedule – Data Protection

Part 1 – Role of the parties

• Where Chameleon-i acts as a controller:
  • when processing personal data contained within correspondence between the Customer’s staff (including Authorised Users) and Chameleon-i’s staff and/or documents relating to the establishment, management, audit and operation of the Contract including the Services, orders for Services and payment for the Services and any other communications which Chameleon-i may wish to rely on to establish its rights and liabilities under the Contract; and
  • when processing the personal data of the Customer’s staff (including Authorised Users) for marketing purposes.
• Where Chameleon-i acts as a processor:
  • save as set out in paragraph 1.1 of this Part 1 of this Schedule, when processing the personal data of the Customer’s staff (including Authorised Users) and any other data subjects (other than Chameleon-i’s staff) whose personal data is inputted on or collected by the Platform and/or Chameleon-i’s Apps in connection with the Contract.

Part 2 – Particulars of processing

• Scope:

The collection and storage of the personal data of:

• the Customer’s staff (including Authorised Users);
• those individuals who are clients or potential clients of the Customer; and
• the staff members of clients or of potential clients of the Customer

on the Platform and/or Chameleon-i’s Apps.

• Nature

Collecting and storing personal data on the Platform and on Chameleon-i’s Apps.

• Purpose of processing

To enable Chameleon-i to deliver the Services and the Customer and its Authorised Users to receive the benefit of the Services including access to the Platform and the use of Chameleon-i’s Apps.

• Duration of the processing

The duration of the Contract and such reasonable time after this period to enable Chameleon-i to transfer or delete the relevant data or as otherwise agreed between the parties.

• Types of personal data

Name, contact details, training data, work performance data and such other personal data as processed by Chameleon-i as a data processor in connection with the Contract.

• Categories of data subject
  • the Customer’s staff (including Authorised Users);
  • those individuals who are clients or potential clients of the Customer;
  • the staff members of clients or of potential clients of the Customer; and

such other data subjects whose personal data is processed by Chameleon-i as a data processor in connection with the Contract.