PART 1 GENERAL TERMS AND CONDITIONS
1.1 These terms and conditions are the terms and conditions applicable to any Agreement made between Chaptr and the Client and comprising the Proposal and these terms and conditions whether for all or any of Website Development, Graphic Design, Photography and Film, Website Hosting and Maintenance, and Digital Marketing Services, including Search Engine Optimisation (SEO), Pay-Per-Click Marketing (PPC), and Copywriting.
1.2 The Agreement shall comprise only the Proposal and these terms and conditions but may be amended by agreement in writing between the Parties. No other terms offered or proposed to be incorporated by the Client shall be of any effect.
As used herein and throughout the Agreement:
2.1 Agreement means the Proposal and these terms and conditions, and any other documents incorporated into the Agreement by agreement in writing.
2.2 Business Day means a day which is not a Saturday or Sunday or public or bank holiday in England and Wales;
2.3 Business Hours means 9 am to 5 pm on a Business Day;
2.4 Client means the acceptor of the Proposal.
2.5 Client Content means all materials, writing, images or other creative content provided by Client to be used in preparing or creating the Deliverables.
2.6 Client System means the Client’s computer system which is not on the Server and links with the Website or Client Website;
2.7 Client Website means a website and any associated “back office” functionality hosted for the Client by Chaptr on the Server;
2.8 Copyright means the intellectual property rights in original creative works anywhere in the World
2.9 Deliverables means the work product specified in the Proposal to be delivered by Chaptr to Client as specified in the Proposal.
2.10 Chaptr Tools means all design tools developed and/or used by Chaptr in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools.
2.11 Chaptr means BrightByte Limited, a company registered in England and Wales with company number 07691751 whose registered office is at 20a Carlton Place, Southampton, SO15 2DY, United Kingdom.
2.12 Fees means the charges for the Services.
2.13 Final Deliverables means the final versions of Deliverables provided by Chaptr and accepted by Client.
2.14 Final Works means all creative content developed by Chaptr , or commissioned by Chaptr, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Chaptr’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
2.15 Initial Period means the initial hosting period for the Client Website as set out in the Proposal.
2.16 Maintenance Release means any release of software relating to the hosting services which corrects faults, adds functionality or otherwise amends or upgrades the hosting service.
2.17 Modification means any Maintenance Release acquired by the Client as part of the Maintenance Services.
2.18 Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Chaptr and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
2.19 Project means the creation of the Deliverables.
2.20 Proposal means the costed proposal for services to be provided by Chaptr accepted in writing by the Client.
2.21 Server means a dedicated server (including a virtual server) made available by Chaptr for use by the Client in connection with the Services from time to time
2.22 Services means all services to be provided to Client by Chaptr as described and defined in the Proposal.
2.23 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustrations.
2.24 Trademarks means trade names, words, symbols, designs, logos or other devices or designs provided by the Client (or a logo for the same designed for the Client by Chaptr) and used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2.25 Website means the software construct, content and visual elements and design as described in the Proposal and/or created by Chaptr for the Client.
2.26 Working Files means all underlying work product and digital files utilized by Chaptr to create the Preliminary Works and Final Works other than the material comprising the Final Deliverables.
2.27 Writing and writing include email and written instructions uploaded to a website.
PART 2 PROVISIONS RELEVANT TO WEBSITE DESIGN SERVICES & DIGITAL MARKETING SERVICES.
3.1 Chaptr shall perform the services set out in the Proposal.
4.1 Fees: Client agrees to pay Chaptr the fees listed in the Project Proposal, including all taxes.
4.2 Expenses: Client will pay Chaptr expenses, including but not limited to: (a) Incidental and out-of-pocket expenses at cost plus Chaptr’s standard mark-up of 20 percent; (b) mileage reimbursement, other than normal commuting, at 45 pence per mile; (c) travel expenses, other than normal commuting, but including airfare and rental vehicles, with client approval.
4.3 Additional Costs: Pricing in the Project Proposal includes only Chaptr fees. Any other costs, such as hosting, licensing or photography, will be billed to Client if and when required.
4.4 Hosting Website: Chaptr will host the Website on Chaptr’s web space while the Project is under construction. If the Website is not completed by the completion date listed in the Proposal, and the delay is not caused by Chaptr, Client agrees to pay Chaptr £20.00 per month for hosting until the Website is moved to its intended destination.
5. PAYMENT TERMS
5.1 PAYMENT TERMS FOR WEBSITE DEVELOPMENT
5.1.1 Payment Schedule: Payment is due when Chaptr completes each milestone as listed in the Proposal, and Client accepts the Deliverables for that milestone.
5.1.2 Invoices: All invoices are payable within 15 days of receipt. Invoices shall list any expenses and additional costs as separate items. Unless otherwise agreed in writing the Project will not proceed to the next following milestone until all invoices applicable to all prior milestones have been paid in full.
5.1.3 Withholding Delivery/Live Website: Chaptr may withhold delivery and transfer of ownership of any current work and/or prevent the Website from going live whilst any accounts are overdue for payment.
5.2 PAYMENT TERMS FOR RETAINED DIGITAL MARKETING SERVICES
5.2.1 Payment Schedule: Payment is due monthly, at the end of each month during the period of the retainer agreement. Monthly milestones will be agreed ahead of time, in the Retainer Proposal and Timeline, and reviewed each month in a Monthly Retainer Services Meeting between Chaptr and Client.
5.2.2 Invoices: All invoices are payable within 15 days of receipt. Invoices shall list any expenses and additional costs as separate items. Unless otherwise agreed in writing the Project will not proceed to the next following milestone until all invoices applicable to all prior milestones have been paid in full.
5.2.3 Withholding Delivery: Chaptr may withhold delivery of monthly milestones whilst any accounts are overdue for payment.
6. CHANGES TO PROJECT SCOPE
6.1 Change Request: If Client wants to change the scope of the Project Client shall send Chaptr a written “Change Order” describing the requested changes in detail. Within seven (7) days of receiving a Change Order, Chaptr will respond with a statement setting out Chaptr’s availability, additional fees, changes to delivery dates or milestones, and any required modification to the Agreement. Chaptr will be entitled to charge for evaluating each Change Order at its standard rates.
6.2 Acceptance/Rejection: Client will have seven (7) days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Chaptr will not be obligated to perform any services beyond those in the original Agreement.
6.3 Chaptr’s response may be for a change to the Project price or for the additional work to be carried out on a time and materials basis.
6.4 Chaptr shall not begin work on the revised services until it receives written acceptance of its proposals for the change.
7. TIMING AND DELAYS
7.1 Timing: Chaptr will use commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Chaptr. Chaptr shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Chaptr’s ability to meet any and all times is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of the Agreement by Chaptr.
7.2 Client Delays: Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
8. EVALUATION AND ACCEPTANCE
8.1 Approval Periods: Client, within seven days of receipt of each Deliverable, shall notify Chaptr, in writing, of any failure of such Deliverable to comply with the specifications or requirements in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment and Chaptr shall be entitled to request written clarification of any concern, objection or correction. Chaptr will correct any errors in a commercially timely manner. Any changes or amendments shall be subject to the terms of the Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
9. CLIENT RESPONSIBILITIES
9.1 Client shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision making with parties other than Chaptr; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; (c) final proof-reading (and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors); and (d) ensuring that any information and claims forming part of Client Content are accurate, legal and conform to applicable standards in Client’s industry.
9.2 Client shall co-operate, and ensure that Client’s staff and contractors co-operate with Chaptr’s staff and contractors and conduct itself at all times so as to ease the process of the Project.
10. ACCREDITATION AND PROMOTION
10.1 Chaptr shall be entitled to place designer/developer accreditation, as a hyperlink or otherwise, in the form, size and location as reasonably required by Chaptr on each page of the Website and for it to remain there whilst the Website is in use by Client.
10.2 Chaptr retains the right to reproduce, publish and display any elements of the Website in Chaptr’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of such elements to the extent created by Chaptr.
11. SUBCONTRACTORS AND STAFF
11.1 Chaptr shall be allowed to use third party independent contractors in connection with the Services (“Sub-contractors”). Chaptr shall remain fully responsible for Sub-contractors’ compliance with this Agreement.
11.2 During the term of the Agreement, and for a period of six (6) months after expiration or termination of the Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, or any other basis, any Chaptr employee or Sub-contractor of Chaptr, whether or not said person has been assigned to perform tasks under the Agreement. In the event such employment, engagement or consultation occurs, Chaptr shall be entitled to receive from Client a commission of either (a) 50 percent of said person’s starting salary with Client if employed, or (b) 50 percent of any fees paid to said person in the twelve months following the commencement of any engagement if otherwise engaged. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the person performed services for Client.
12. REPRESENTATIONS AND WARRANTIES
12.1 Client represents, warrants and covenants to Chaptr that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content or any Trademarks in connection with the Project will not violate the rights of any third parties, and (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials
12.2 Chaptr represents, warrants and covenants to Client that Chaptr will provide the Services with reasonable care and skill and that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Chaptr and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Chaptr, Chaptr shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Chaptr to grant usage rights to the Client as provided in this Agreement, and (iii) to the best of Chaptr’s knowledge, the Final Works (but excluding any element of Client Content and any Trademarks) do not infringe the rights of any third party, and use of same in connection with the Project and as anticipated by the Proposal or the Agreement will not violate the rights of any third parties.
13. RIGHTS IN THE FINAL DELIVERABLES
13.1 Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Chaptr hereby grants to Client a non-exclusive, perpetual and worldwide right and license to use, reproduce and display, sub-licence and adapt the Final Works as part of the Website for the purpose of promoting the business, product(s) or service(s) as anticipated by the Proposal. All other rights including Copyrights, save for Copyright in any Trademarks, are retained by Chaptr.
13.2 The rights granted to Client are for usage of the Final Works as part of the Website only. Client may not separately use any part of the Website without Chaptr’s consent.
13.3 Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Chaptr assigns to Client all of Chaptr’s Copyright, in and to Trademarks created by Chaptr as part of the Services. Chaptr shall at Client’s request and cost execute any documents reasonably requested by Client to evidence such assignment. Client acknowledges its responsibility to satisfy itself that the Trademarks do not infringe the registered or common law trademarks of any third party and Client shall indemnify, save and hold harmless Chaptr from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.
13.4 Intellectual property rights in Third Party Materials are normally owned by the respective third parties. Chaptr shall inform Client of all Third Party Materials to be procured by Chaptr that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Chaptr shall obtain a licence for Client to use the Third Party Materials. Client shall indemnify, save and hold harmless Chaptr from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand or action by a third party arising out of Client’s failure to obtain any necessary licence release or permission which it undertook to obtain or claimed to possess with respect to materials included in the Final Works at Client’s request.
13.5 Client Content, including pre-existing Trademarks, and any intellectual property therein shall remain the sole property of Client or its respective licensors. Client hereby grants to Chaptr a non-exclusive, non-transferable licence to use, reproduce, modify, display and publish the Client Content solely in connection with Chaptr’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.
14. RIGHTS RESERVED TO CHAPTR
14.1 Chaptr retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Chaptr all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.
14.2 All Chaptr Tools are and shall remain the exclusive property of Chaptr. Chaptr grants Client a non-exclusive, non-transferable, perpetual, worldwide license to use Chaptr Tools solely to the extent necessary to enable use of the Website.
14.3 Chaptr retains Copyright ownership in any original graphic designs comprising Final Works, including all rights to display or sell the same. Client shall return all original graphic designs to Chaptr within thirty (30) days of completion of the Services.
15. SUPPORT SERVICES
15.1 During the first two (2) months following termination of the Agreement (“Warranty Period”), Chaptr shall provide up to four (4) hours of support services at no additional cost to Client. Support services means commercially reasonable technical support and assistance to maintain and update the Website including correcting any errors. Requests for additional support will be billed on a time and materials basis at Chaptr’s standard rate.
15.2 The services in the Warranty Period do not include enhancements to the Project or other services outside the scope of the Proposal.
15.3 Retained Digital Marketing Services are not covered by this or any other Warranty Period.
16.1 During the Warranty Period, Client may request that Chaptr develop enhancements to the Website. Chaptr shall use commercially reasonable efforts to prioritise Chaptr’s resources to create such enhancements. Client understands Chaptr may have pre-existing obligations that may delay requested enhancements. Chaptr shall provide any enhancements on a time and materials basis at Chaptr’s standard rates.
17. TERM AND TERMINATION OF WEBSITE DEVELOPMENT AGREEMENT
17.1 Unless the Agreement is terminated earlier in accordance with its terms, Chaptr will provide the Services until they are complete.
17.2 Chaptr may immediately terminate the Agreement by notice in writing to the Client if the Client fails to pay to Chaptr any sum due under the Agreement by the due date for payment.
17.3 Either party may terminate the Agreement forthwith by notice in writing to the other if the other party:
17.3.1 is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 21 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
17.3.2 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
17.3.3 has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or
17.3.4 has ceased or threatened to cease to trade.
18. CONSEQUENCES OF TERMINATION
18.1 Termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination.
18.2 Those parts of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
18.3 The Client will forthwith pay all outstanding invoices.
18.4 Each party shall return or, at the disclosing party’s request, destroy any confidential information of the other party.
18.5 Without prejudice to its liability for any breach of contract Client shall pay Chaptr for the Services up to and including the date of termination in the amount of a pro-rated portion of the fees due. Client shall pay all incurred expenses and other sums chargeable under the Agreement.
18.6 If Client terminates, and makes full payment pursuant to 18.5, Chaptr grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination and shall provide copies of the said Deliverables.
18.7 Each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party
PART 3 PROVISIONS RELEVANT TO THE SUPPLY OF GRAPHIC DESIGN, PHOTOGRAPHY AND FILM
19.1 Provisions 3, 4.1, 4.2, 6, 7, 8, 9.2, 11, 17, 18 of the terms relevant to web design services are equally relevant to Graphic Design, Photography and Film, and Digital Marketing Services, including but not limited to Search Engine Optimisation (SEO), Pay-Per-Click Marketing (PPC), Copywriting, and Email Marketing.
20. COSTS AND PAYMENT
20.1 Additional Costs: Pricing in the Project Proposal includes only Chaptr fees. Any other costs, such as location hire or models, will be billed to Client if and when required.
20.2 Payment: Payment is due when Chaptr completes each milestone as listed in the Proposal, and Client accepts the Deliverables for that milestone. If there are no milestones then payment is due on delivery of the relevant Deliverable(s).
20.3 Invoices: All invoices are payable within 15 days of receipt. Invoices shall list any expenses and additional costs as separate items. Unless otherwise agreed in writing the Project will not proceed to the next following milestone (if any) until all invoices applicable to all prior milestones (if any) have been paid in full.
20.4 Withholding Delivery: Chaptr may withhold delivery of any current work whilst any accounts are overdue for payment.
21. CLIENT RESPONSIBILITIES
21.1 Client shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision making with parties other than Chaptr; (b) provision of locations and subjects; (c) approval of work in progress.
22.1 Chaptr retains the right to reproduce, publish and display any elements of the Final Works in Chaptr’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of such elements to the extent created by Chaptr.
22.2 Chaptr retains the right to refer to successes achieved with Client through Digital Marketing Services in training, case studies, public speaking events and other relevant industry events where doing so demonstrates Chaptr’s expertise and effectiveness, and to be credited for strategic oversight of such elements to the extent created by Chaptr..
23. REPRESENTATION AND WARRANTIES
23.1 Chaptr represents, warrants and covenants to Client that Chaptr will provide the Services with reasonable care and skill and that the Final Deliverables shall be the original work of Chaptr and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Chaptr, Chaptr shall have secured agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Chaptr to grant usage rights to the Client as provided in this Agreement, and (iii) to the best of Chaptr’s knowledge, the Final Works (but excluding any element of Client Content and any Trademarks) do not infringe the rights of any third party, and use of same in connection with the Project and as anticipated by the Proposal or the Agreement will not violate the rights of any third parties.
24. RIGHTS IN THE FINAL DELIVERABLES
24.1 Upon completion of the Services, and expressly conditional upon full payment of all fees and costs due, Chaptr hereby grants to Client a non-exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Works for the purpose of promoting the business, product(s) or service(s) as anticipated by the Proposal. All other rights including Copyrights, are retained by Chaptr.
25. RIGHTS RESERVED TO CHAPTR
25.1 Chaptr retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to Chaptr all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.
25.2 Chaptr retains Copyright in and ownership of any original graphic designs or photographic negatives forming part of the Final Works, including all rights to display or sell the same. Chaptr retains Copyright in photography and videography forming part of the Final Works. Client shall return all original graphic designs to Chaptr within thirty (30) days of completion of the Services.
25.3 Chaptr retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Strategic Content Plans, Content Templates, Keyword Strategies, and Proprietary Materials relating to the development and execution of Digital Marketing Services on behalf of Client, and Client shall return to Chaptr all said Plans, Templates and Strategis in Client’s possession within thirty (30) days of completion of the Services.
PART 4 PROVISIONS RELEVANT TO THE SUPPLY OF WEBSITE HOSTING SERVICES
26. THE HOSTING SERVICES
26.1 In consideration of the payment by the Client of the Fees, Chaptr agrees to provide the Services (host the Client Website on a server based within the European Economic Area) to the Client on the terms of the Agreement.
26.2 Chaptr will use its reasonable endeavours to commence the Services in accordance with any timescale set out in the Proposal or otherwise agreed with the Client, provided that Chaptr shall not be liable to the Client for any failure to meet any such timescale.
26.3 Chaptr reserves the right, at any time and from time to time, to change the services by, for example, changing the Server or the type or location of the server (within the EEA) provided only that such changes do not have a materially adverse effect on the quality of the Services.
26.4 The Client shall have no right of ownership over or physical access to the Server.
26.5 The parties agree that for the provision of the Hosting Services the Client shall be the Data Controller and Chaptr shall be the Data Processor. The terms of such arrangement are annexed to these terms in the form of a Data Processing Addendum (DPA) including the necessary data protection definitions applicable to this term.
27. WEBSITE MAINTENANCE SERVICES
27.1 In consideration of the payment by the Client of the annual Fees, after one year of providing the Services as described in term 26, Chaptr agrees to provide the Services (the issue of Modifications for the website hosting services and a monthly report), in accordance with the scope set out in the Proposal as and when required, on the terms of this Agreement.
27.2 Chaptr shall ensure any Modification required will take place in accordance with the schedule set out in the Proposal and will use reasonable endeavours to ensure that the website hosting services are interrupted for as short a time as reasonably possible while a Modification or Update takes place, provided that Chaptr will not be liable to the Client for any losses incurred by the Client that occur as a result of any Modification or Update.
27.3 If so provided in the Proposal the maintenance service shall include uploading additional material to or changing material on the website at the Client’s request at the Fees set out in the Proposal.
28. CLIENT’S OBLIGATIONS
The Client shall:
28.1 immediately notify Chaptr on becoming aware of any unauthorised use or incursion into the Client Website;
28.2 remove or prevent access to any material hosted on the Client Website which causes or is likely to cause the Client to be in breach of the Agreement;
28.3 ensure that it has all necessary consents, permissions and licences to make use of the Client Website including registration and appropriate consents and approvals under the Data Protection Act 1998 and/or the General Data Protection Regulation;
28.4 ensure that all material or data placed by the Client on the Client Website or communicated through such site is checked for viruses and other harmful code and has appropriate security patches applied;
28.5 be entirely liable for all activities conducted and charges incurred on or through the Client Website by persons using under the Client’s passwords and user names whether authorised by the Client or not, and the Client further acknowledges that Chaptr shall not be liable for any loss (whether financial or otherwise) arising from the Client’s inability to comply with the Agreement;
28.6 comply with any security policy notified to the Client from time to time by Chaptr and, in particular, ensure that all passwords and user names provided to the Client by Chaptr are at all times kept confidential, used properly and not disclosed to unauthorised people. If the Client has any reason to believe that any password or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Client will inform Chaptr immediately;
28.7 promptly provide to Chaptr and/or Chaptr’s consultants, employees and agents such information and assistance as they may reasonably require in order to be able to provide the Services and deal with them courteously and co-operatively;
28.8 procure all necessary rights from third parties (including intellectual property licences of computer software and website content) which are from time to time required in order for Chaptr to be able legally to provide the Services to the Client;
28.9 co-operate with Chaptr in performing the maintenance services and provide any assistance as may be reasonably required by Chaptr including in relation to the diagnosis of any faults;
28.10 report any faults to Chaptr promptly;
28.11 keep full back-up copies of all of its data;
28.12 indemnify Chaptr against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Chaptr as a result of the Clients breach of this Agreement howsoever arising or any negligent or wrongful act by the Client, it’s officers, employees, contractors or agents.
The Client shall not:
28.13 use the Client Website, or allow it to be used, for any unlawful or fraudulent purpose or for the publication, distribution, copying, linking to, issue or display of any unlawful material (including any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights (including but not limited to intellectual property rights) of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) under English law or the laws of the Client’s country of domicile or any other place where the results of such purpose or the material in question are likely to be accessed;
28.14 use the Client Website, or allow it to be used, for the publication, linking to, issue or display of any material which in the absolute discretion of Chaptr may harm or bring into disrepute Chaptr or any of Chaptr’s associated companies, suppliers or clients.
28.15 use the Client Website, or allow it to be used, in a way which constitutes harassment or is in breach of generally accepted standards and codes of practice for use of the internet including but not limited to refraining from (i) sending bulk email (whether opt-in, unsolicited or otherwise), (ii) mail bombing and (iii) impersonating another person, organisation or website.
28.16 use any service provided by any third party (including an internet web site and/or email) for the publication, linking to, issue or display of any material which refers to an internet web site hosted by Chaptr or any products or services offered by Chaptr from time to time without Chaptr’s prior written consent; or
28.17 use the Client Website in any way which in the reasonable opinion of Chaptr is excessively wasteful of resource within the Server.
29. CHAPTR WARRANTIES FOR THE MAINTENANCE SERVICES
29.1 Chaptr represents and warrants to the Client that it shall perform the Maintenance Services:
29.1.1 in accordance with applicable laws and regulations;
29.1.2 with reasonable care and skill; and
29.1.3 to the best of its knowledge and belief the Modifications will not infringe the UK Intellectual Property Rights of any third party;
29.2 No representation or warranty is given by Chaptr that all faults will be fixed, or fixed within a specified time.
29.3 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality or fit for purpose.
30.1 Without prejudice to its other rights and remedies, Chaptr may suspend the provision of the whole or any part of the Services (temporarily or permanently) thus rendering the Client Website inoperative and will have no liability to the Client for such suspension on the occurrence of any of the following events:
30.1.1 any scheduled or unscheduled but necessary upgrade or maintenance of any relevant IT system used by Chaptr;
30.1.2 any requirement of any competent authority which affects Chaptr’s provision of the Services;
30.1.3 if the Client fails to pay any Fees or any other sums owing to Chaptr by the Client when they fall due;
30.1.4 if in Chaptr’s opinion it is necessary to do so to avert damage or loss to Chaptr or its other clients;
30.1.5 termination of the Agreement;
30.1.6 if the bandwidth, hard disk drive or computer memory used by the Client in relation to the Client Website exceeds any agreed or stipulated level and Chaptr determines in its sole discretion that suspension is necessary to protect all or any internet solutions then provided by Chaptr;
30.1.7 any failure, deficiency or incompatibility in the Client System including but not limited to hardware, server corruption and security breaches which has or may have a deleterious effect on the provision of services by Chaptr to other clients; or
30.1.8 any failure by the Client, or any of the Client’s employees, agents or other authorised representatives, to adhere to any of the provisions outlined in condition 27.
30.2 In the event that Chaptr suspends provision of the Services in accordance with condition 28.1 Chaptr will only be obliged to recommence provision during Business Hours and if the suspension was pursuant to 28.1.3 once the Client has paid all relevant outstanding sums in cleared funds.
31. UNLAWFUL CONTENT
31.1 If in Chaptr’s opinion, the Client is in breach of any of the provisions contained in condition 27 and as a consequence the Server contains unlawful content or (irrespective of any such breach) the Client Website is being used in a way that has the effect of gathering content that would be generally regarded as being undesirable, Chaptr may amend or remove any such content appearing on the Client Website or in the Server and may notify any relevant public authority (governmental or otherwise including the police or other enforcement authority) of any such material where Chaptr deems such notification to be appropriate.
32. PAYMENT TERMS
32.1 Subject to condition 30.2 the Fees are payable by the Client to Chaptr on the basis set out in the Proposal.
32.2 Chaptr shall be entitled to amend the Fees by giving the Client not less than 60 days’ written notice, such notice to expire at the end of the Initial Period or any anniversary of that date.
33. TERM AND TERMINATION OF WEBSITE HOSTING AGREEMENT
33.1 Unless the Agreement is terminated earlier in accordance with its terms, Chaptr will provide the Services for the Initial Period and will continue to do so thereafter until terminated by either party serving not less than 30 days’ written notice on the other party expiring at any time after the end of the Initial Period.
33.2 Chaptr may immediately terminate the Agreement by notice in writing to the Client if the Client fails to pay to Chaptr any sum due under the Agreement by the due date for payment.
33.3 Either party may terminate the Agreement forthwith by notice in writing to the other if the other party:
33.4 is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 21 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
33.5 is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
33.6 has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or
33.7 has ceased or threatened to cease to trade.
34. CONSEQUENCES OF TERMINATION OF WEBSITE HOSTING AGREEMENT
34.1 Termination of the Agreement shall be without prejudice to the rights and duties of either party accrued prior to termination.
34.2 Those parts of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
34.3 Chaptr may without notice remove the Client’s data from the Server following termination thus “turning off” the Client Website.
34.4 The Client will forthwith pay all outstanding invoices.
34.5 Each party shall return or, at the disclosing party’s request, destroy any confidential information of the other party.
34.6 Once the Client has discharged all its obligations to Chaptr, Chaptr shall for payment in advance at its normal time and materials rates create and provide to Client a back up of the Client Website suitable for deployment on another server provided that the other server and the software on it are compatible with the Client Website.
35. LIMITATION OF LIABILITY
35.1 The Client acknowledges that it is exclusively responsible for:
35.1.1 reviewing any new Modifications;
35.1.2 ensuring that the staff of the Client are trained in the proper use and operation of the Software; and
35.1.3 making regular backup copies of its data to ensure recovery of its data if any Modification caused a malfunction.
35.2 All dates supplied by Chaptr for the delivery of the Modification shall be treated as approximate only. Chaptr shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
35.3 All references to Chaptr in this term 35 shall, for the purposes of this term only, be treated as including all employees, subcontractors and suppliers of Chaptr, all of whom shall have the benefit of the exclusions and limitations of liability set out in this term and any general limitation of liability term in this Agreement.
PART 5 DIGITAL MARKETING SERVICES
36. Provisions 3, 4.1, 4.2, 4.3, 6, 7, 8, 9.2, 11, 17, 18 of the terms relevant to web design services are equally relevant to the Digital Marketing Services.
37. THE DIGITAL MARKETING SERVICES
37.1 In consideration of the payment by the Client of the Fees, Chaptr agrees to provide the Services (providing digital marketing services in accordance with the Proposal) to the Client on the terms of the Agreement.
37.2 Chaptr will use its reasonable endeavours to meet any performance dates agreed with the Client, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
37.3 Chaptr reserves the right, at any time and from time to time to change the services by, provided only that such changes do not have a materially adverse effect on the quality of the Services.
37.4 Chaptr warrants that it will carry out the Services with reasonable care and skill.
38. CLIENT OBLIGATIONS
38.1 The Client shall:
38.1.1 co-operate with Chaptr in all matters relating to the Services;
38.1.2 provide Chaptr with such information and material Chaptr may reasonably require in order to supply the Services;
38.1.3 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
38.1.4 comply with all applicable laws and regulations.
39. THIRD PARTY TERMS
39.1 The Client acknowledges that certain services may involve the licensing of third-party intellectual property rights and that the Client may from time to time be required to enter into a licence directly with such third party. The Client hereby acknowledges that certain services rely upon services being provided by third parties (‘Third-Party Services’).
39.2 The Client acknowledges that the Third-Party Services will be governed by the third parties’ terms and conditions and that Chaptr cannot provide any warranties in respect of the Third-Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same.
39.3 Providers of Third-Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the client’s business purposes or risk management policies.
39.4 Third-party media expenses may be incurred as part of supplying the Services, and fall with term 4.3 of this Agreement. These third-party expenses include, but are not limited to; influencer fees and design services.
39.5 All third-party software systems and utilities used to provide the Services remain the property of their respective owners and creators and as such are subject to their own licensing and intellectual property terms and conditions to which you must fully agree.
40. PERFORMANCE GUARANTEES
40.1 The Client acknowledges and agrees that the internet is neither owned nor controlled by any one entity; therefore, Chaptr can make no guarantee on the results that may be provided from carrying out the Services.
40.2 Chaptr does not warrant that the outcome of the Services will meet the Client’s requirements or that the operation of the outcome of the Services will be uninterrupted or error-free.
40.3 In no event, will Chaptr be liable to the Client or any third party for any damages, including any lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the Services, even if Chaptr has been advised of the possibility of such damages.
40.4 Chaptr cannot accept responsibility for any variation in the performance of the Client’s website due to seasonality, competitor activity, design and usability and other marketing conditions outside Chaptr’s control.
40.5 The Client acknowledges and agrees that Chaptr has no control over future algorithms created by Google or other search engines or policy changes by Google or other search engines, but Chaptr do undertake various checks and techniques to try to ensure that the risk of a future penalty by Google or other search engines is minimised. It is essential that the Client informs Chaptr of any link building or digital advertising that the Client may carry out independently; as these may carry risks of a manual penalty by Google or other search engines if the source of the link is from a site that is known for using spam techniques or accepting payments for links.
40.6 The performance of a Search Engine Optimisation (SEO) provided as part of the Services relies on the Client implementing any technical recommendations and/or uploading new optimised content within a timely manner (typically 2-4 weeks). Any delay in carrying out these tasks may seriously impact the effectiveness of a project and could even result in a drop in rankings. Delays may also hold up later phases of the project.
40.7 For PR and/or social media projects provided within the Services; the timing and placement of the Client content on third party and media sites cannot be guaranteed. The performance therefore of the project will be judged against the agreed plan of activities to create and place content, (as well as our knowledge of the journalists and influencers in each sector).
41. LIMITATION OF LIABILITY
41.1 The Client shall be responsible for checking any material submitted by Chaptr to the Client for approval. The Client shall approve such material or notify Chaptr if any such material is false or misleading or is in any way contrary to law or any applicable UK or EU regulation or law. If no approval or notification is given by the Client within any required time limit (or in the absence of any time limit within a reasonable time) following submission of any material in connection with this term that material shall be deemed to have been approved by the Client in connection with this term.
41.2 Chaptr shall not be liable for any delay in or omission of publication, transmission or any error in any advertisement in the absence of any serious default or neglect on Chaptr’s part.
41.3 The Client shall indemnify Chaptr in respect of all costs, damages, or other charges falling upon Chaptr as a result of any legal action or threatened legal action brought against Chaptr arising from the publication of any promotion or advertising campaign prepared for the Client by Chaptr and approved or deemed approved by the Client before publication.
PART 6 PROVISIONS RELEVANT TO ALL SERVICES
42. SERVICE DELIVERY
42.1 The Services are provided by Chaptr to the Client on an “as is” and “as available” basis and, except where otherwise stated in the Agreement, no warranty or representation (whether express or implied) of any kind is given by Chaptr in connection with the Agreement, including but not limited to any warranty as to satisfactory quality and fitness for a particular purpose of any Deliverables. In particular, Chaptr gives no warranty and makes no representation that:
42.1.1 the Services will meet the Client’s requirements;
42.1.2 the hosting Services will be provided on an uninterrupted, timely, secure or error-free basis or without failure;
42.2 Chaptr warrants that it will provide the Services with reasonable care and skill and within a reasonable time.
42.3 Chaptr represents that it shall use reasonable endeavours to provide hosting Services continuously except during scheduled maintenance of the Server and that should Chaptr become aware of a Server fault or any error or interruption affecting the hosting Services it will as soon as practicably possible during Business Hours repair the Server or provide an alternative server as a replacement.
43. LIMITATION OF LIABILITY
43.1 The provisions of this condition 34 set out the entire liability of Chaptr (including any liability for the acts or omissions of its consultants, employees, agents and authorised representatives) to the Client in respect of:
43.1.1 any breach of the Agreement; and
43.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.
43.2 Nothing in the Agreement shall exclude or limit the liability of Chaptr for death or personal injury caused by the negligence of Chaptr, fraud or a breach of section 12 of the Sale of Goods Act 1979.
43.3 Subject to condition 34.2 the liability of Chaptr in contract, tort (including negligence or breach of statutory duty), misrepresentation (other than fraudulent misrepresentation) or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall:
43.3.1 not exceed the sum of £5,000,000 (five million pounds) per claim or series of claims arising out of the same event for loss of or damage to tangible property; and
43.3.2 not exceed a sum equal to 125% of all sums paid by the Client to Chaptr pursuant to the relevant Agreement (excluding VAT and expenses) during the 12 month period immediately preceding the claim less any amounts paid by Chaptr in the same period pursuant to any claim under or in connection with the same Agreement; and
43.3.3 not include loss of profit, loss of business, loss of revenue, loss of contract, loss of goodwill (whether direct or indirect losses), or any indirect or consequential loss or damage, costs, expenses or any other claims for consequential compensation and whether or not caused by the negligence of Chaptr or its employees, agents or authorised representatives even if, Chaptr had been made aware of the possibility of such losses arising.
43.4 The Client acknowledges and agrees that Chaptr shall not be liable for:
43.4.1 Interruptions of service or down-time of the Server
43.4.2 Non-receipt or misrouting of email or for any other failure of email.
43.4.3 Loss or damage to any data stored on the Server or any backup medium.
43.4.4 Failure to correctly transfer any data, content or settings present on the Server where the Client Website is transferred to a different server.
43.4.5 Any claim unless the Client notifies Chaptr in writing of the claim within 10 days of the Client becoming aware of the facts or circumstances giving rise to the claim.
43.4.6 Failure of the Website to comply with relevant legislation in any jurisdiction.
43.4.7 Any act or omission carried out in accordance with Client’s instructions.
43.4.8 Chaptr’s failure to investigate third party rights where it is the responsibility of Client to obtain clearance.
44. FORCE MAJEURE
44.1 Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, acts of God, acts of any governmental or supranational authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use of or access to any IT system owned, used or accessed by Chaptr or the Client (including but not limited to hacking), explosion, flood, epidemic, lockouts (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, or by any act, event, omission or accident beyond that party’s reasonable control.
44.2 Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day for day extension of any dates for performance. Each party shall use reasonable efforts to notify the other party, in writing, of a delay.
45.1 Client agrees to indemnify, save and hold harmless Chaptr against and from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s obligations, representations or warranties under the Agreement.
45.2 Chaptr shall promptly notify Client in writing of any third party claim or suit. Client, having adequately secured Chaptr against any costs, shall have the right to fully control the defence and any settlement of such claim or suit.
45.3 Chaptr agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party that elements of any Deliverables which Chaptr claims are its original work breach the third party’s Copyright, and it is determined that such infringement has occurred. In the case of a third party lawsuit or proceeding based on such a claim Chaptr may at its own expense, replace any infringing content with non-infringing content.
45.4 Client shall promptly notify Chaptr in writing of any third party claim or suit. Chaptr, having adequately secured Client against any costs, shall have the right to fully control the defence and any settlement of such claim or suit.
46. LATE PAYMENTS AND TAX
46.1 Any sums payable by the Client to Chaptr under the Agreement are exclusive of value-added tax or any similar taxes, levies or duties, which will be added to such sums and be payable by the Client at the prevailing rate.
46.2 All sums payable to Chaptr under the Agreement shall be paid by the Client in full with no set-off or deduction.
46.3 A monthly service fee of 1.5 percent, or the maximum allowed under the Late Payment of Commercial Debts (Interest) Act 1998, is payable on all overdue balances.
46.4 Payments will be credited to late payments first, then to unpaid balances.
46.5 Client shall pay all collection or legal fees caused by late payments.
46.6 All grants of any licence to use or agreements to transfer ownership of any intellectual property rights under this Agreement are conditional on full payment being made.
47. CONFIDENTIAL INFORMATION
47.1 Client’s “Confidential Information” means information provided to Chaptr concerning the business of Client that Chaptr should reasonably believe to be confidential. Chaptr’s “Confidential Information” means any Preliminary Works provided to Client. Any other material considered confidential by either party shall be designated as confidential before being provided.
47.2 Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement.
47.3 The restriction in clause 38.2 shall not apply to any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
48.1 The Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of the Agreement. Client agrees that it has not relied on any warranty or representation that is not set out in these terms and conditions or in the Proposal or in any written agreement amending either these terms and conditions or the Proposal.
48.2 In the event of there being any conflict or inconsistency between the Proposal and these terms and conditions, the Proposal shall take precedence.
48.3 No variation or amendment to the Agreement shall be effective unless agreed in writing.
48.4 The Client shall not assign the benefit or delegate the burden of the Agreement or sub-license any of its rights under the Agreement without Chaptr’s prior written consent.
48.5 If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
48.6 Failure or delay by either party in enforcing or partially enforcing any provision of the Agreement will not be construed as a waiver of any of its rights under the Agreement.
48.7 Nothing in the Agreement confers on any third party any benefit or any right to enforce any provision of the Agreement.
48.8 Any waiver by either party of any breach of, or any default under, any provision of the Agreement by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
48.9 Any notice required to be given in connection with the Agreement shall be in writing and shall be sent by fax, email, posted or delivered by hand to the Registered Offices of the parties or in the event that there is no registered office, their principal place of business. Such notice shall be deemed to have been given when served if delivered by hand. If posted first class it shall be deemed given 48 hours following posting and if sent by fax or email at the time transmission was fully completed. Any notice sent by email shall only be deemed to be delivered upon acknowledgement by the receiving party that such notice has been received.
48.10 The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by English law and the parties submit to the jurisdiction of the English courts.
Chaptr Data Processing Addendum
This Data Processing Agreement (DPA) is made between the Client and Chaptr and is applicable when Chaptr provide Website Hosting Services.
1. Definitions and Interpretation
a. Applicable Law means as applicable and binding on the parties:
b. any law, statute, regulation, or subordinate legislation in force from time to time which a party is subject and/or in any jurisdiction that the Services are provided to or in respect of, as may be specified in any Agreement;
c. the common law and laws of equity as applicable to the parties from time to time;
d. any binding court order, judgment or decree; or
any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business;
Appropriate Safeguards means such legally enforceable mechanism(s) for transfers of Personal Data as may be permitted under Data Protection Laws from time to time (including, but not limited to, EU Model Contract Clauses or Privacy Shield certification);
Data Controller has the meaning given to that term in the Data Protection Laws;
Data Processor has the meaning given to that term in the Data Protection Laws;
Data Protection Laws means as applicable and binding on the Client, Chaptr and/or the Services set out in the terms this DPA is annexed too and the Proposal:
a. in the United Kingdom:
the Data Protection Act 2018 and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive);
the General Data Protection Regulation (EU) 2016/679 (or “GDPR”) and/or any corresponding or equivalent national laws or regulations; and/or
the Privacy and Electronic Communications (EC Directive) Regulations 2003 and/or any corresponding or equivalent national laws or regulations.
in member states of the European Union: the Data Protection Directive or the GDPR, once applicable, and all relevant member state laws or regulations giving effect to or corresponding with any of them;
any Applicable Laws replacing, amending, extending, re-enacting or consolidating any of the above Data Protection Laws from time to time;
Data Subject has the meaning given to that term in the Data Protection Laws;
Data Subject Access Request means a request made by a Data Subject to exercise any rights of Data Subjects under the Data Protection Laws;
International Organisation means an organisation by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries;
Personal Data has the meaning given to that term in the Data Protection Laws;
Personal Data Breach means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Protected Data;
Processing has the meaning given to that term in the Data Protection Laws;
Protected Data means Personal Data received from or on behalf of the Client in connection with the performance of Chaptr’s obligations under this DPA;
Sub-Processor means another Data Processor engaged by Chaptr for carrying out processing activities in respect of the Protected Data on behalf of the Client; and
Supervisory Authority means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws.
References to any Applicable Laws (including to the Data Protection Laws and each of them) and to terms defined in such Applicable Laws shall be replaced with or incorporate (as the case may be) references to any Applicable Laws replacing, amending, extending, re-enacting or consolidating such Applicable Law (including the GDPR and any new Data Protection Laws from time to time) and the equivalent terms defined in such Applicable Laws, once in force and applicable. A reference to a law includes all subordinate legislation made under that law.
2. Term and Effect
2.1 This DPA will take effect from the date on which the Client accepts the terms of this DPA and shall continue until the end of Chaptr’s provision of the Services (including any period of suspension, where relevant) (“Term”).
2.2 Except for the changes made by this DPA, the Agreement remains in full force and effect. To the extent that there is any conflict between this DPA and the Agreement, the clauses of this DPA shall prevail.
2.3 Any claims brought under or in connection with this DPA shall be subject to the terms and conditions agreed between the parties, including, but not limited to, the exclusions and limitations set out in the Agreement.
3. Data Processor and Data Controller
3.1 The parties agree that, for the Protected Data, the Client shall be the Data Controller and Chaptr shall be the Data Processor.
3.2 Chaptr shall process Protected Data in compliance with:
3.2.1. The Data Protection Laws; and
3.2.2.the terms of this DPA, the Terms and in accordance with the Client’s instructions in relation to such processing activities.
3.3 The Client shall comply with:
3.3.1.all Data Protection Laws in connection with the processing of Protected Data, the Services and the exercise and performance of its respective rights and obligations under this DPA,; and
3.3.2. the terms of this DPA.
3.4 The Client warrants, represents and undertakes, that:
3.4.1. all data sourced by the Client for use in connection with the Services shall comply in all respects with Data Protection Laws;
3.4.2. all instructions given by the Client to Chaptr in respect of Protected Data shall at all times be in accordance with Data Protection Laws; and
3.4.3. the Client shall not unreasonably withhold, delay or condition its agreement to any change or amendment requested by Chaptr in order to ensure the Services and Chaptr (and each Sub-Processor) can comply with Data Protection Laws.
4. Instructions and Details of Processing
4.1 By entering into this DPA, Client instructs Chaptr to process Client Protected Data only in accordance with Applicable Law:
4.1.1.to provide the Services;
4.1.2. as further specified by Client’s use of the Services;
4.1.3. as documented in any other written instructions provided by the Client and acknowledged by Chaptr as being instructions for the purposes of this DPA.
4.2 Insofar as Chaptr processes Protected Data on behalf of the Client, Chaptr, unless required to do otherwise by Applicable Law, shall process the Protected Data only on and in accordance with the Client’s documented instructions as set out in this clause, as updated from time to time as agreed between the parties (Processing Instructions).
4.3 Chaptr shall notify the Client if the Processing Instructions conflict with any Data Protection Laws.
4.4 The subject matter and details of the processing of Protected Data to be carried out by Chaptr under this DPA shall comprise the processing set out in Schedule 1 (Data processing details), as may be updated from time to time as agreed between the parties.
5. Technical and Organisational Measures
5.1 Chaptr shall implement and maintain, at its cost and expense and in relation to the processing of Protected Data by Chaptr, technical and organisational measures taking into account the nature of the processing, to assist the Client insofar as is possible in complying with the Data Protection Laws.
6.1 By agreeing to this DPA the Client agrees to Chaptr’s use of its current Sub-Processors; a list of which is available on request.
6.2 Chaptr shall not engage any new Sub-Processors for carrying out any processing activities in respect of the Protected Data if the Client provides a written objection (on reasonable grounds and only relating to data protection) within 14 days of receiving notice, in accordance with clause 6.3, of the requirement to engage a new Sub-Processor. If the Client provides such written objection, the Client can terminate the Agreement.
6.3 When any new Sub-Processor is engaged by Chaptr during the Term, Chaptr shall give the Client 30 days’ prior notice of the appointment of any new Sub-Processor, including details of the Processing to be undertaken by the Sub-Processor, via email or in accordance with the notice provisions of the terms.
6.4 Chaptr shall ensure via a written contract that the Sub-Processor only accesses and processes Protected Data to perform the obligations subcontracted to it and does so in accordance with the measures contained in this DPA that are enforceable by Chaptr.
7. International Data Transfers
7.1 If necessary for the performance of the Services, the Client agrees that Chaptr may transfer any Protected Data to countries outside the European Economic Area (EEA) or to any International Organisation(s) (an International Recipient), provided all transfers by Chaptr of Protected Data to an International Recipient shall (to the extent required under Data Protection Laws) be effected by way of Appropriate Safeguards and in accordance with Data Protection Laws. The provisions of this DPA shall constitute the Client’s instructions with respect to transfers in accordance with clause 4.1.
8. Chaptr Staff
8.1 Chaptr shall ensure that all persons authorised by it to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
9. Assisting the Client with GDPR Compliance
9.1 Chaptr shall refer all Data Subject Requests it receives, relating to the Client, to the Client within five Business Days of receipt of the request.
9.2 Chaptr shall provide such reasonable assistance as the Client reasonably requires (taking into account the nature of processing and the information available to Chaptr) to the Client in ensuring compliance with the Client’s obligations under Data Protection Laws with respect to:
9.2.1.security of processing;
9.2.2.data protection impact assessments; and
9.2.3.notifications of any Personal Data Breach.
10. Records, Information and Audit
10.1.Chaptr shall maintain, in accordance with Data Protection Laws binding on Chaptr, a written record of its processing activities.
10.2.Chaptr shall, in accordance with Data Protection Laws, make available to the Client such information as is reasonably necessary to demonstrate Chaptr’s compliance with the obligations of Data Processors under Data Protection Laws, and allow for and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose, subject to the Client giving Chaptr reasonable prior notice of such information request, audit and/or inspection being required by the Client.
11. Breach Notification
11.1.In respect of any Personal Data Breach involving Protected Data, Chaptr shall, without undue delay (but in any event within 24 hours) from when Chaptr becomes aware of the same:
11.1.1.notify the Client of the Personal Data Breach; and
11.1.2.provide the Client, where possible, with details of the Personal Data Breach.
12. Deletion or Return of Protected Data and Any Copies
12.1.Chaptr shall, at the Client’s written request delete or return all the Protected Data to the Client within a reasonable time after termination of the Services.
DATA PROCESSING DETAILS
1. Subject-matter of Processing:
1.1 Chaptr’s provision of the Services to the Client in accordance with the Agreement.
2. Duration of the Processing:
2.1 The duration of any relevant Services in accordance with the Client’s instruction.
3. Nature and Purpose of the Processing:
3.1 Chaptr will process Client Protected Data for the purposes of providing the Services to the Client in accordance with the DPA and the Terms.
4. Type of Personal Data
4.1 Data relating to individuals provided to Chaptr via the provision of the Services by or at the direction of the Client or end-users of the Client.
5. Categories of Data Subjects:
5.1 Data subjects are the individuals about whom data is provided to Chaptr via the Services by or at the direction of Client or end-users of the Client.