Terms and Conditions
ChatPro Ltd (ChatPro) supplies an instant messaging platform for organisations that work with children, young people and vulnerable adults. A subscribing organisation (the Customer) appoints an administrator, who accesses the ChatPro management console via a web browser. The administrator uses this console to create and manage, in accordance with applicable safeguarding principles, an instant messaging network for members of the organisation. Members of the organisation use the ChatPro mobile app to join and communicate on this network, subject to permissions and restrictions imposed by the organisation’s administrator.
The Customer wishes to use ChatPro’s services and software in its organisation’s operations. ChatPro has agreed to provide and the Customer has agreed to take and pay for ChatPro’s services subject to the terms and conditions of this Agreement. The defined terms used in this Agreement have the meanings set out in clause 15 (Interpretation).
Agreed Terms
1. Contract formation
1.1 These terms and conditions give rise to a contract between ChatPro and the Customer where:
1.1.1 ChatPro and the Customer sign an Order or final form Proposal subject to these terms; OR
1.1.2 the Customer (or a representative acting for the Customer) accepts these terms by clicking “I accept” when prompted during its first access to the Platform.
1.2 Any descriptive matter or advertising issued by ChatPro, and any descriptions or illustrations contained in ChatPro’s website, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Agreement or have any contractual force.
1.3 These terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by custom, practice or course of dealing.
IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OR OTHER ELEMENTS OF THE AGREEMENT YOU MUST NOT USE THE PLATFORM OR ANY OF THE SOFTWARE OR SERVICES.
2. User Subscriptions
2.1 Subject to the Customer purchasing the User Subscriptions and compliance with the other terms and conditions of this Agreement, ChatPro hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer's internal business/administrative operations.
2.2 In relation to the Authorised Users, the Customer undertakes that:
2.2.1 the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
2.2.2 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;
2.2.3 each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than once every twelve months and that each Authorised User shall keep his password confidential;
2.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to ChatPro within five (5) Business Days of ChatPro's written request at any time or times;
2.2.5 it shall permit ChatPro or ChatPro's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at ChatPro's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
2.2.6 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to ChatPro's other rights, the Customer shall promptly disable such passwords and ChatPro shall not issue any new passwords to any such individual;
2.2.7 if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to ChatPro, then without prejudice to ChatPro's other rights, the Customer shall pay to ChatPro an amount equal to such underpayment as calculated in accordance with the prices set out in the Order (or as otherwise agreed between the parties) within ten (10) Business Days of the date of the relevant audit
2.2.8 it shall ensure and procure that all Authorised Users making use of the ChatPro Services further to their relationship with the Customer shall each comply with the ChatPro App Terms of Use Agreement, and the Customer shall promptly and at its own cost provide ChatPro with all reasonable assistance in enforcing those terms of use against each such Authorised User;
2.2.9 where it believes an Authorised User lacks the mental capacity to agree to the ChatPro Terms of Use and Privacy Policy, it shall obtain consent to these from a parent or guardian of the Authorised User before authorising them to access and use the Services; and
2.2.10 it shall manage its own network using the Services and that the Customer shall monitor and regulate the network and Authorised Users in accordance with the Customer’s own policies and procedures. The Customer shall ensure and procure that all Authorised Users making use of the ChatPro Services shall comply with the Customer’s own policies and procedures, including in relation to safeguarding and acceptable behaviour policies. The minimum requirements for the Customer’s use policies for Authorised Users include those listed in clause 2.3. ChatPro excludes all liability for misuse of the Software and Services by any user associated with the Customer, and the Customer shall indemnify and hold ChatPro harmless against any and all claims against ChatPro and against any and all losses, expenses, damages, reputational damage, fines, legal fees and other costs of whatsoever nature which ChatPro incurs as a result of the Customer or any of its users or associates using the Software and Services other than in accordance with the terms of this Agreement.
2.3 Without prejudice to the Customer’s responsibilities under 2.2.10, the Customer shall not (and shall procure that each Authorised User shall not) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 breaches safeguarding principles applicable to the Customer or any Authorised User;
2.3.4 depicts sexually explicit images;
2.3.5 promotes unlawful violence;
2.3.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.7 is otherwise illegal or causes damage or injury to any person or property;
and ChatPro reserves the right, without liability or prejudice to its other rights, to disable the Customer's or any users access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
2.4.1 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 this Agreement:
2.4.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
2.4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.4.2 access all or any part of the Services in order to build a product or service which competes with the Services; or
2.4.3 use the Services to provide services to third parties; or
2.4.4 subject to clause 11, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; or
2.4.6 introduce or permit the introduction of, any Virus or Vulnerability into ChatPro'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 and, in the event of any such unauthorised access or use, promptly notify ChatPro.
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 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number agreed in the Order (or otherwise agreed in writing between the parties) and ChatPro shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify ChatPro in writing. ChatPro shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where ChatPro approves the request, ChatPro shall activate the additional User Subscriptions within seven (7) days of its approval of the Customer's request.
3.3 If ChatPro approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of ChatPro's invoice, pay to ChatPro the relevant fees for such additional User Subscriptions as set out in the Order (or otherwise agreed in writing between the parties) and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by ChatPro for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4. Services
4.1 ChatPro shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.
4.2 ChatPro shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 10.00 pm to 6.00 am UK time; and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that ChatPro has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
4.3 ChatPro will, as part of the Services and in consideration of the support fees set out in the Order (or otherwise agreed in writing between the parties), provide the Customer with ChatPro's standard customer support services during Normal Business Hours in accordance with ChatPro's Support Services Policy in effect at the time that the Services are provided. ChatPro may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at ChatPro's then current rates.
5. Customer Data
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 ChatPro shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy available at https://www.chatpro.co.uk/backup-policy or such other website address as may be notified to the Customer from time to time, as such document may be amended by ChatPro in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against ChatPro shall be for ChatPro to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by ChatPro in accordance with the archiving procedure described in its Back-Up Policy. ChatPro shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by ChatPro to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable under clause 5.9).
5.3 ChatPro shall, in providing the Services, comply with its Information Security Policy relating to the security of the Customer Data available at https://www.chatpro.co.uk/security-assurance-pack or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by ChatPro in its sole discretion.
5.4 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
5.5 The parties acknowledge that:
5.5.1 if ChatPro processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the Customer is the controller and ChatPro is the processor for the purposes of the Data Protection Legislation.
5.5.2 Schedule 2 sets out the scope, nature and purpose of processing by ChatPro, the duration of the processing and the types of personal data and categories of data subject.
5.5.3 the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and ChatPro's other obligations under this Agreement.
5.6 Without prejudice to the generality of clause 5.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to ChatPro for the duration and purposes of this Agreement so that ChatPro may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf.
5.7 Without prejudice to the generality of clause 5.4, ChatPro shall, in relation to any personal data processed in connection with the performance by ChatPro of its obligations under this Agreement:
5.7.1 process that personal data only on the documented written instructions of the Customer unless ChatPro is required by the laws of any member of the European Union or by the laws of the European Union applicable to ChatPro and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where ChatPro is relying on Applicable Laws as the basis for processing personal data, ChatPro shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ChatPro from so notifying the Customer;
5.7.2 not transfer any personal data outside of the United Kingdom unless the following conditions are fulfilled:
5.7.2.1 the Customer or ChatPro has provided appropriate safeguards in relation to the transfer;
5.7.2.2 the data subject has enforceable rights and effective legal remedies;
5.7.2.3 ChatPro complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
5.7.2.4 ChatPro complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
5.7.3 assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.7.4 notify the Customer without undue delay on becoming aware of a personal data breach;
5.7.5 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term "delete" shall mean to put such data beyond use); and
5.7.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Customer if, in the opinion of ChatPro, an instruction infringes the Data Protection Legislation.
5.8 Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, 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 (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
5.9 The Customer consents to ChatPro appointing third-party processors of personal data under this Agreement. ChatPro confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business which ChatPro confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and ChatPro, ChatPro shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5.
5.10 The parties may, at any time on not less than 30 days' notice, agree in writing to revise this clause 5 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 this Agreement).
6. Third Party Providers
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. ChatPro makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not ChatPro. ChatPro recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. ChatPro does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7. Supplier's Obligations
7.1 ChatPro undertakes that the Services will be performed substantially in accordance with their description set out on the ChatPro website at https://www.chatpro.co.uk and with reasonable skill and care.
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 contrary to ChatPro's instructions, or modification or alteration of the Services by any party other than ChatPro or ChatPro's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier 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 ChatPro:
7.3.1 does not warrant that:
7.3.1.1 the Customer's use of the Services will be uninterrupted or error-free; or
7.3.1.2 that the Services, and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
7.3.1.3 the Services or Software detect or prevent misuse or safeguarding issues – the Customer is responsible for regulating all Authorised User use of the Services and Software;
7.3.1.4 the Software or the Services will be free from Vulnerabilities; or
7.3.1.5 the Software or Services will comply with any Heightened Cybersecurity Requirements.
7.3.2 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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This Agreement shall not prevent ChatPro 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 this Agreement.
7.5 ChatPro warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8. Customer's Obligations
8.1 The Customer shall:
8.1.1 provide ChatPro with:
8.1.1.1 all necessary co-operation in relation to this Agreement; and
8.1.1.2 all necessary access to such information as may be required by ChatPro;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.3 carry out all other Customer responsibilities set out in this Agreement 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, ChatPro may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure and procure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement, the end user terms and shall be responsible for any Authorised User's breach of the end user terms or any other terms applicable to the Authorised Users use of the Software or Services;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for ChatPro, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
8.1.6 ensure that its network and systems comply with the relevant specifications provided by ChatPro from time to time;
8.1.7 maintain an up-to-date safeguarding policy, which includes good industry standard requirements regarding the use of electronic communication;
8.1.8 have an appointed safeguarding officer (or equivalent) with oversight over use of the Software and Services by all users and which officer has appropriate training, experience and resources to fulfil the duties of the role;
8.1.9 only permit access to the Software and Services by employees or volunteers of the organisation who have been appropriately vetted and deemed suitable to have substantial unsupervised contact with children, young people and/or vulnerable adults (including but not limited to a clear Enhanced DBS check and satisfactory references);
8.1.10 maintain all appropriate organisational insurance policies at an appropriate level and with reputable insurers as would be maintained by a reasonably prudent business person in the same or equivalent circumstances to the Customer;
8.1.11 remain at all times throughout the Term an organisation with a formal legal structure (e.g. charity, company, etc.);
8.1.12 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to ChatPro'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 ChatPro for the User Subscriptions in accordance with this clause 9 and any support or other fees in accordance with clause 4.3. All fees are payable annually in advance on or before the Effective Date and every anniversary thereof.
9.2 The Customer shall on or before the Effective Date provide to ChatPro;
9.2.1 its approved purchase order number information, ChatPro shall invoice the Customer:
9.2.1.1 on the Effective Date for the Subscription Fees payable in respect of the first year of the Initial Subscription Term; and
9.2.1.2 subject to clause 9.6, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the following year of the Term,
and the Customer shall pay the invoice for the first year on or before the Effective Date and for all subsequent invoices within 30 days after the date of such invoice. Payment shall be made via bank transfer to ChatPro’s account as detailed on your invoice.
9.3 If ChatPro has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of ChatPro:
9.3.1 ChatPro may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and ChatPro shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to five per cent (5%) over the then current base lending rate of ChatPro's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment; and
9.3.3 at ChatPro’s option it may terminate this Agreement and, subject to clause 13.1.2, delete all Customer Data after serving the Customer with ten (10) days’ notice in writing.
9.4 All amounts and fees stated or referred to in this Agreement:
9.4.1 shall be payable in pounds sterling;
9.4.2 are non-cancellable and non-refundable;
9.4.3 are exclusive of value added tax, which shall be added to ChatPro's invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in writing between the Parties, ChatPro shall charge the Customer, and the Customer shall pay, ChatPro's then current excess data storage fees. ChatPro's excess data storage fees current as at the Effective Date are set out in the Order (or otherwise agreed in writing between the parties).
9.6 ChatPro shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, the support fees payable pursuant to clause 4.3 and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer and the Order (or other written instrument between the parties which sets out the fees) shall be deemed to have been amended accordingly.
10. Proprietary Rights
10.1 The Customer acknowledges and agrees that ChatPro and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2 ChatPro confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11. Limited Liability and Exclusions
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1 Nothing in this contract shall operate to exclude or limit ChatPro’ liability for: (i) death or personal injury caused by its negligence; or (ii) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods Act 1982; or (iii) fraud; or (iv) any other liability which cannot be excluded or limited under applicable law.
11.2 The following types of loss are specifically excluded and ChatPro shall not be liable to the Customer for any of the following types of loss howsoever arising and whether claimed under contract, tort or otherwise: (i) loss, damage or corruption to software, (ii) loss, damage or corruption to data or information, (iii) loss of profit, (iv) loss of anticipated profits, (v) loss of revenues, (vi) loss of anticipated savings, (vii) loss of or damage to reputation or goodwill, (viii) loss of business or other opportunity, (ix) loss of sales or business or other loss of revenue or standing, (x) loss of agreements or contracts, (xi) any indirect or consequential loss or damage.
11.3 Subject to the foregoing, ChatPro' aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with these terms or any collateral contract, whether in contract or tort (including negligence), misrepresentation, restitution or otherwise, shall in no circumstances exceed one hundred per cent (100%) of the total fees and charges payable by the Customer to ChatPro under this contract in that calendar year.
11.4 ChatPro has given commitments as to compliance of the Services with certain standards as described in this Agreement. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods Act 1982 are, to the fullest extent permitted by law, excluded from these terms.
11.5 Unless the Customer notifies ChatPro that it intends to make a claim in respect of an event within the notice period, ChatPro shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail. All warranty claims must be brought in the warranty period.
11.6 The parties agree that exclusions and limitations on liability stated herein are fair under the circumstances and that the Charges reflect this limitation of liability. This clause 11 (Limitations and Exclusions) shall survive termination of this contract.
12. Term and Termination
12.1 This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of equal to the Renewal Period, unless:
12.1.1 either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
12.1.2 otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Termination for Convenience The Supplier may terminate this contract upon 30 days advance written notice. Supplier will refund the Customer pro rata for any amounts paid in advance for any Devices or Services not yet delivered or received.
12.3 Termination for Cause Without prejudice to any other rights or remedies, either party may immediately terminate this contract if the other party:
12.3.1 materially fails to perform its material obligations under this contract such failure continues for a period of 30 days after written notice (including for failure to make payments); or
12.3.2 institutes or suffers a bankruptcy, reorganization, liquidation, receivership, insolvency or similar proceeding; or becomes generally unable to pay its debts as they become due;
12.3.3 in respect of the Customer only, ChatPro may in its sole discretion elect to terminate this contract with immediate effect on written notice in the event the Customer undergoes a change of legal standing, change of control and/or ceases to be a legal entity capable of forming contractual relations.
12.4 ChatPro may suspend delivery and/or performance of Services if Customer fails to pay undisputed amounts to ChatPro within 15 days of ChatPro’s written notice specifying the undisputed amounts. If Customer terminates this contract further to this clause 12, Customer is obligated to pay immediately on demand for all Services delivered to the Customer and the unpaid portions of all disputed Services delivered by ChatPro on a percentage of work performed basis, as reflected in the most recent project status report, prior to ChatPro’s receipt of Customer’s dispute/default notice.
13. Consequences of Termination
13.1 On termination or expiry of this contract:
13.1.1 the Customer shall immediately pay to ChatPro all of ChatPro's outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has been submitted, ChatPro may submit an invoice, which shall be payable immediately on receipt;
13.1.2 ChatPro shall, within a reasonable time, return or destroy (at the Customer’s option which must be expressed in writing within five (5) Business Days of the date of termination) all Customer Data. Where return is elected, ChatPro shall provide the Customer Data in a commonly readable format of ChatPro’s own choice. If the Customer fails to indicate a preference, ChatPro shall be entitled to destroy all Customer Data still in its possession more than forty five (45) days after the date of termination or expiry of this Agreement..
13.2 Any provision of these terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this contract shall remain in full force and effect. Termination or expiry of this contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry.
14. General
14.1 Force Majeure Neither party shall be in breach of this contract nor liable for delay in performing, or failure to perform, any of its obligations under this contract if such delay or failure result from any events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three (3) months, the party not affected may terminate this contract by giving fourteen (14) days' written notice to the affected party.
14.2 Confidentiality Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received. The obligations set out in this clause 14.2 shall not apply to Confidential Information which the receiving party can demonstrate:
14.2.1 is or has become publicly known other than through breach of this clause 14.2; or
14.2.2 was in possession of the receiving party prior to disclosure by the other party; or
14.2.3 was received by the receiving party from an independent third party who has full right of disclosure; or
14.2.4 was independently developed by the receiving party; or
14.2.5 was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement. The obligations of confidentiality in this clause 14.2 shall not be affected by the expiry or termination of this contract.
14.3 Publicity The Customer hereby grants ChatPro the right to refer to the Customer as a customer of ChatPro and user of the Services in ChatPro’s advertising and marketing materials, both online and in print, and across all social media. The Customer and ChatPro will collaborate on joint public relations and marketing activities. Customers may promote their use of the Services, but reference to any specific commercial arrangements between ChatPro and the Customer must not be disclosed unless approved in writing in advance by ChatPro.
14.4 Notices Any notice or other communication given to a party under or in connection with the contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second UK business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one UK business day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.5 Assignment The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this contract. ChatPro may, after having given prior written notice to the Customer, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this contract. For the avoidance of doubt this contract shall survive change of control of ChatPro.
14.6 Entire Agreement This 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. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this contract.
14.7 Third Party Rights Unless it expressly states otherwise, this contract does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this contract. The rights of the parties to rescind or vary this contract are not subject to the consent of any other person.
14.8 Variation No variation of this contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.9 Waiver A waiver of any right or remedy under this contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.10 Rights and Remedies Except as expressly provided in this contract, the rights and remedies provided under this contract are in addition to, and not exclusive of, any rights or remedies provided by law.
14.11 Severance If any provision or part-provision of this 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 this contract. If any provision or part-provision of this contract is deemed deleted under this clause, 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.
14.12 Relationship ChatPro is an independent contractor. Nothing in this contract will be construed to make ChatPro or customer partners, joint venturers, principals, agents, or employees of the other. No officer, director, employee, agent, affiliate, or contractor employed by ChatPro to perform work on customer’s behalf under this contract will be deemed to be an employee, agent, or contractor of customer. Neither party will have any right, power, or authority, express or implied, to bind or make representations on behalf of the other.
14.13 Governing Law and Jurisdiction This contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this contract or its subject matter or formation.
15. Interpretation
15.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement
together, the Order (if any), these Terms and Conditions and any other documents incorporated by reference in these Terms and Conditions, agreed between the Customer and ChatPro as described herein.
Authorised Users
those employees, agents, independent contractors, consultants, volunteers, pupils, participants, parents, guardians, carers and other individuals associated with the Customer who are authorised by the Customer to use the Services, as further described in clause 2.2.4.
Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
ChatPro
ChatPro Ltd. Company registered in England and Wales number 12361477. Registered office: Henleaze Business Centre, Bristol, BS9 4PN.
Confidential Information
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 14.2.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer Data
the data inputted by the Customer, Authorised Users, or ChatPro on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Data Protection Legislation
the UK Data Protection Legislation and any applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party hereto relating to the use of personal data (including, without limitation, the privacy of electronic communications);
Effective Date
the date of this Agreement, being when the contract was formed in accordance with clause 1.
Heightened Cybersecurity Requirements
any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Initial Subscription Term
the initial term of this Agreement as set out in the Order or otherwise agreed in writing by both parties.
Normal Business Hours
9.00am to 5.00pm local UK time, each Business Day.
Order
If any, the detailed order form or final form detailed proposal accepted in writing by ChatPro and which sets out the detailed terms for the Customer’s enjoyment of the Services.
Renewal Period
the period set out in the Order or otherwise agreed in writing between the parties, or 1 year if no renewal period is specified, being each successive period of the specified duration for which the Agreement is automatically renewed after the end of the Initial Subscription Period and each subsequent Renewal Period.
Services
the subscription services, including the Software, provided by ChatPro to the Customer under this Agreement via https://admin.chatpro.co.uk/sign-in or any other website notified to the Customer by ChatPro from time to time.
Software
the online software applications provided by ChatPro as part of the Services.
Subscription Fees
the subscription fees payable by the Customer to ChatPro for the User Subscriptions, as set out in the Order or as otherwise agreed in writing between the parties.
Subscription Term
has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Services Policy
ChatPro's policy for providing support in relation to the Services as made available at https://www.chatpro.co.uk/company-policies or such other website address as may be notified to the Customer from time to time.
UK Data Protection Legislation:
all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (or UK-GDPR following Brexit); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as any of the foregoing may be amended, updated or replaced.
User Subscriptions
the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services in accordance with this Agreement and the Customer’s own policies and safeguarding procedures.
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.
Vulnerability
a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
15.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
15.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
15.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
15.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
Schedule 1- Processing, Personal Data and Data Subjects
1. Processing By ChatPro
1.1 Scope: only such processing as is necessitated by the Customer and Authorised Users use and enjoyment of the Software and Services, and any additional processing required in order to make available and maintain the quality of the Software and Services.
1.2 Nature: storage, transmission across networks, archiving,
1.3 Purpose of Processing: further to the Customer’s enjoyment of the Services and the Authorised Users use of the Software and Services
1.4 Duration of the Processing: until the termination or expiry of the Subscription Term of the Agreement.
2. Types of Personal Data
All types including incidental inclusion of special category data. Many of the following types of personal data may be included within messages which will therefore be incidentally processed by the Software (but other than the Authorised Users’ name, date of birth, email address and password the following data types will never be directly gathered, accessed or accessible by ChatPro):
Names, addresses, email addresses, telephone numbers, age, date of birth, name, user names, passwords education information, qualifications, employment information, health data, medical treatment, opinions of or about data subjects, geolocation, trade union membership, politic beliefs, sexual orientation, marital status, interests, hobbies, education, leisure and all other types of information which may incidentally be included or implied from message content transmitted via the Software and Services but only to the extent such information may be transmitted during lawful use of the Software and Services in accordance with all terms set out in the Agreement and the Customer’s own safeguarding and IS, communications and other relevant policies.
3. Categories of Data Subject:
All Authorised Users including adults, children, vulnerable adults, all being associated with the Customer as a teacher, volunteer, employee, worker, consultant, agent, pupil, service user or otherwise falling within the category of Authorised Users of the Customer’s subscription.