The Digital Asset and Clinical Video Management Specialists

ChilliPharm Terms and Conditions

Last Updated: June 2017

These Terms and Conditions are to be read in conjunction with the signed and dated Work Order to which they are attached, and together form the basis of the Agreement between ChilliPharm and the party on whose behalf the Work Order has been signed. Where the Work Order includes or only relates to hire of the Equipment the terms in Section 9 below apply and such terms shall take precedence where in conflict with other terms in the Agreement.

SECTION 1: Definitions

1.1 The following defined terms are used in these terms and conditions.

Agreement; these Terms and Conditions read in conjunction with the attached Work Order, which takes precedence in the event of any conflict. Terms defined in the Work Order have the same meaning when used herein.

ChilliPharm: ChilliBean Limited t/a ChilliPharm, a company incorporated in England and Wales with registered number 4775994, operating out of 1st Floor, 53 Frith Street London W1D 4SN.

ChilliPharm Services – provision of access to and use of the ChilliPharm Vault only for the work/trial identified on the Work Order, on the terms and conditions set out below.

ChilliPharm Vault: the online digital asset management and dedicated storage facility solution provided by ChilliPharm and located at www.ChilliPharm.com (and its sub-domains or specified other addresses) that is used to store, archive and permit You to review patient videos and other content and where You can upload, store comment on and access online certain films, and other data as required, for Clinical Trials conducted at all participating clinical sites.

Work Order; the outline contractual terms agreed between Us and You to which these terms and conditions are attached signed on Your behalf, which sets out the key commercial terms (including Subscription Cost) agreed between Us and You for the ChilliPharm Services that You have engaged Us to provide to You and where applicable the hire of the Equipment.

Recipient: the company or person(s) whom You nominate to receive patient videos or other content from Us and/or to access the ChilliPharm Services using ChilliPharm Vault.

Us/We/Our: ChilliPharm, Our employees and authorised agents involved in providing the ChilliPharm Services to You.

You/Your: The user or customer or client of ChilliPharm agreeing to these terms and conditions, including all of Your employees and authorised agents.

The Equipment: the Equipment specified on the Work Order together with (if any) the accessories and any part or parts of the same.

working days; Monday to Friday inclusive excluding United Kingdom Bank Holidays

SECTION 2: Use of ChilliPharm Services

2.1 The provision and use of the ChilliPharm Services is governed by the Work Order and the terms and conditions set out herein. The Work Order identifies the specific ChilliPharm Services to be provided; any extension or addition to, or duplication or repetition of, such matters specified in the Work Order requires a fresh Work Order to be agreed and completed each time.

2.2 Access to the ChilliPharm Services online is only by username (a valid email address) and confidential password to be generated by You.

2.3 It is Your responsibility to ensure that Your account is up to date and in credit before making use of the ChilliPharm Services.

2.4 You are required to keep Your password(s) confidential and to notify Us immediately You become aware of any unauthorised use of Your password(s) or that any unauthorised party has obtained access to Your password(s).

2.5 ChilliPharm Services allows You to collaborate with people in other companies. However, it is Your responsibility in using ChilliPharm Services to ensure that You have the necessary permissions to make any data available to others both inside and outside Your own organisation.

2.6 Data stored for You by ChilliPharm will remain accessible as long as your account is in credit. If any charges are not settled by the relevant due date, ChilliPharm is no longer obliged to permit access to such data, until Your account is back in credit.

SECTION 3: Charges and Credit Terms

3.1 The Charges payable for the ChilliPharm Services are as set out on the Work Order, or as separately agreed with Us in writing, and are exclusive of VAT or any other relevant sales tax which is payable in addition to such charges (where applicable). Additional features and services may be available for a one-off fee or an increased Subscription Cost, all to be agreed with Us in advance and to be recorded in writing as an addendum to this Agreement.

3.2 We also reserve the right to bar access to any services and data where payments are overdue or dishonoured. If the Charges or other sum due to Us are not be paid by You on or before the date when the same shall be due and payable You are liable to pay interest upon such outstanding Charges or such other sum at the rate of five per cent (5%) per annum above the base rate of HSBC Bank) from time to time during the period in which interest is payable from the due date until the actual date of payment.

3.3 All payments are due in Sterling, unless payment in US$ is pre-agreed by Us in writing, and You are responsible for the cost of bank transfers, currency conversions and/or other bank charges; if these are charged to Us, we will be entitled to claim these back from you plus an additional administrative charge of 10% of such amounts.

SECTION 4: Confirmation, Cancellation and Infringement consequences

4.1 Following the minimum agreed contract term (if applicable) You will give us at least 30 days’ notice in writing (unless otherwise stated) if you wish to cancel the Agreement.

4.2 We will remove all client data from Our systems if You cancel or terminate this Agreement or Your account with Us, or where we are required to do so by a court order or other lawful authority, or where requested to do so by a third party who alleges, with reasonable justification (in our absolute discretion) that the relevant data infringes their or another party’s rights, or if We terminate access to the ChilliPharm Services in accordance with Section 6 below.

SECTION 5: Data Rights and Protection

5.1 You hereby confirm that you have obtained all necessary permissions to store data in ChilliPharm Vault from all relevant data subjects/patients. ChilliPharm Vault must not be knowingly used to store data infected in any way, whether by viruses or other malicious content, or for storing defamatory content or other content to which You do not have relevant rights of use or access. We reserve the right to remove content contravening this condition.

5.2 You acknowledge that We will acquire personal and confidential data relating to users and third parties during the course of providing Our services. In accepting these terms and conditions, You consent to the collection and storing of such information.

5.3 By signing the Work Order You confirm that you have the necessary consents or permissions required for this Section 5. You also confirm that You have satisfied yourself that ChilliPharm Vault has the necessary security in place for the files You may wish to upload to it.

SECTION 6: Termination and Default

6.1 We may terminate access to ChilliPharm Vault immediately by notice in writing to You in the event that You:-

  • breach these terms and conditions, (and, if such breach is capable of cure, fail to remedy such breach after 20 days’ notice to You requiring such cure to be effected):
  • become bankrupt, insolvent, or have an administrator or liquidator appointed over Your assets, or become unable to pay Your outstanding debts: or,
  • fail to keep Your account with Us in sufficient credit for the ChilliPharm Services requested.

6.2 ChilliPharm will work with You to download and deliver the stored data in a mutually agreed form and on terms mutually agreed by the parties during the notice period. Unless otherwise agreed and arranged, ChilliPharm will delete any data You have stored in ChilliPharm Vault upon the date of termination.

6.3 In addition to the above, We reserve the right to terminate the provision of ChilliPharm Services to You on 3 months written notice to You. We will use all reasonable endeavours in assisting You to transfer and/or remove Your data in such an event which we will agree to do for a reasonable fee.

6.4 Any termination by Us of Your account with Us shall be without prejudice to Our entitlement to any outstanding payments required from You, and to any liability You may have to Us for breach of these terms and conditions which shall remain enforceable by Us.

SECTION 7: Suspension

7.1 We may suspend Your access to the ChilliPharm Services on notice to you (where possible and practical) in the event that:-

  • We are entitled to terminate Your access in accordance with the terms herein
  • We need to carry out maintenance or updates (and shall provide as much notice as reasonably possible of this)
  • We are required to comply with a request for such suspension from a government, law, or other administrative office.

SECTION 8: Liability

8.1 You agree that:

  • We have no liability for any consequential or indirect loss, including damages for loss of business or business interruption caused by any failure to provide the ChilliPharm Services in accordance with these terms and conditions including without limitation where the unavailability of the ChilliPharm Services is due to a matter outside of Our reasonable control, such as power or other utility interruption or failure, industrial action, war, government action or decrees or similar circumstances.
  • Our liability for any direct loss You suffer as a result of our breach of these terms and conditions is limited to a maximum of any amount paid to Us by You over the preceding 12 month period.

8.2 8.2 Provided such claims, loss or damage are not due to ChilliPharm’s negligence or wilful misconduct, You shall indemnify ChilliPharm from and against:

  • any claims taken against Us as a result of any acts and/or omissions by You, your agents or subcontractors, whether negligent or otherwise
  • any loss or damage arising from unauthorised access to Our services by a third party using Your password
  • any claims arising in any way from data stored in ChilliPharm Vault by You or any data submitted to ChilliPharm, including without limitation from any copyright or intellectual property infringements or libel, defamation, or breach of confidentiality claims.

8.3 You agree to put in place and maintain effective insurance policies for adequate levels of protection to guard against any significant loss or liability arising as a result of your use of the ChilliPharm Services.

8.4 To the extent such loss, damage or disclosure of data is not owing to ChilliPharm’s negligence or wilful misconduct, We shall not be responsible or liable for:-

  • loss or damage resulting from any person gaining unauthorised access to the ChilliPharm Services or ChilliPharm Vault, whether through You or otherwise
  • the disclosure of data from ChilliPharm Services including ChilliPharm Vault resulting from unauthorised access by a third party whether through You or otherwise
  • loss or damage resulting from malfunctions of our systems or services
  • removal of Your data following suspension of ChilliPharm Services or termination of this Agreement in accordance with these terms and conditions
  • messages or other provision of the ChilliPharm Services being delayed because of any spam or content filtering system You or Your customers to whom We send data, have in place.

8.5 You acknowledge that ChilliPharm Vaults are made available over the Internet and that as such, data is carried by third parties over which We have no control. In addition to the restrictions above, to the extent such loss, damage or disclosure of data is not owing to ChilliPharm’s negligence or wilful misconduct, We shall not be responsible or liable for:

  • loss or corruption of data transferred to or from ChilliPharm Vault,
  • the unavailability of the ChilliPharm Service due to reasons outside of our reasonable control, Your or Your customer’s inability to access the ChilliPharm Service.
  • failure of any performance by any local delivery partner that You nominate,
  • unavailability of the ChilliPharm Service due to any action or ruling of any government, war, industrial action, breakdown of machinery or equipment or utility services, accident, fire or other cause beyond our reasonable control.

8.6 Nothing in this Section 8 affects or limits your statutory rights.

SECTION 9: Equipment hire

9.1 We agree to supply the Equipment for use only in connection with the ChilliPharm Services in good working order and condition at the time of delivery to or for collection by You prior to the Contract Start date but it shall be Your responsibility to ensure that the Equipment is fully suitable in all respects (including type and condition) for the purpose for which it is hired. We have no responsibility for the connectivity of the Equipment, no SIM card is provided with the Equipment and all Wifi and other use is Your responsibility. Upon delivery or collection the Equipment shall be examined and checked by You before being taken into use and if found to be defective or deficient shall immediately be returned to Us with a note of explanation on such defectiveness or deficiency and We shall as soon as possible replace the Equipment or correct the defects or deficiencies without additional charge.

9.2 In no circumstances will We be liable for any direct or indirect loss or consequential damage of whatever kind howsoever caused arising out or in connection with the use of or the inability to use the Equipment or any malfunctioning of the Equipment, including without limitation any loss of data stored on the Equipment by reason of Your use of the Equipment, Our obligations hereunder being limited to supplying replacement Equipment for any Equipment that is faulty or defective subject to Your correct use of the same in accordance with this Agreement.

9.3 You shall use or cause to be used the Equipment in a skilful and proper manner in accordance with this Agreement and all instructions accompanying the Equipment and shall at Your own expense keep it in good condition (save for fair wear and tear) and further shall take all precautions necessary to ensure its safety and security. You will not tamper with or attempt to open the outer case (if any) of the Equipment or of any item or part thereof nor interfere in any way with the Equipment or the mechanism thereof or any nameplates or signs or serial numbers thereon and will not expose the Equipment to the elements (in particular to salt water and spray) and will keep the Equipment protected in all respects. We will provide technical support for use of the Equipment by e-mail communication only and will use all reasonable endeavours to reply within twenty-four (24) hours of a request for such support received on a working day.

9.4 Any loss, theft or damage to the Equipment including loss, theft or damage caused by non- familiarisation or misuse of the same is Your sole responsibility and in such circumstances You will be charged with and obliged to pay Us the full cost of repair or full replacement value of the Equipment as the case may be. We do not keep any back-up or other remote storage of data You may upload on to the Equipment. You must not repair or attempt to repair or request a third party to repair or attempt to repair the Equipment, but must return it forthwith to Us. Any loss or theft of the Equipment must be reported to Us as soon as possible and We reserve the right to remove all data and materials from the Equipment remotely in such circumstances without any liability to You for such loss of data.

9.5 The Equipment shall be delivered and collected at such time and place as shall be mutually agreed between Us and You in writing. If delivered to You the signature of any person purporting to be Your employee shall be sufficient evidence of delivery. We shall use all reasonable endeavours to comply with any time schedules agreed with Us but shall not be liable for delays due to unforeseen circumstances or due to causes beyond Our control including but not limited to acts of nature, acts of government or terrorism, labour disputes and/or delays in transport.

9.6 Unless otherwise agreed in writing between Us and You it shall be Your responsibility to return the Equipment to Us as soon as possible on termination of the hire. If We agree to collect the Equipment on termination of the hire You will remain fully responsible for the safety protection repair and condition (subject as aforesaid) of the Equipment until it is in Our possession.

9.7 During the continuance of the Agreement You shall pay Us by way of rent for the hire of the Equipment Our hire charges shown in the Work Order or such other hire charges as may have been agreed in writing between Us and You in each case plus Value Added Tax at the rate current in addition to all charges due to be paid by You to Us under the terms of the Agreement. For the avoidance of any doubt You shall be liable for payment of hire charges as from the time for which the Equipment is ordered (which shall be the commencement of the hire period) until either (i) the time of its return to Us or (ii) if the Equipment is lost or stolen or is otherwise irrecoverable or is damaged then in any such case the time when such loss, theft or damage is reported to Us. If lost, stolen, is otherwise irrecoverable or damaged (other than by Your misuse) We agree to replace or repair the same as soon as reasonably possible. The said hire charges shall continue to be payable in respect of any replacement or repaired Equipment from delivery to You for the remainder of the hire period.

9.8 Without Our prior written consent, the Equipment must not be used on any abnormal or hazardous assignment You shall be solely responsible for obtaining all customs clearance licences and permits as shall be necessary to take the Equipment out of the country to which We originally delivered it. If any Equipment is lost or damaged or breaks down and We agree to replace the same or similar, Our liability shall only extend to delivery of any replacement to an address in the country to which it was originally delivered. If You collect, Our liability shall only extend to delivery to the collection address.

9.9 In addition to the hire charges for the Equipment You shall pay all delivery charges and any local import taxes that may be applied when the Equipment is delivered at Your request to local territories outside of the United Kingdom.

9.10 You shall have the right to terminate the hire at any time by giving written notice to Us. In the event of such termination before expiry of any minimum rental term indicated in the Work Order other than in circumstances of material breach by Us, We reserve the right to make a cancellation charge as follows:

Cancellation Notice period / Total Cancellation Charge

Within 3 months of rental start date / 75% of remaining minimum rental due

Within 6 months of rental start date / 50% of remaining minimum rental due

9.11 All hire and other charges relating to the Equipment are net and unless otherwise agreed between Us and You shall be due and payable within 60 days of the invoice date. If any hire charge or other such sum due to Us shall not be paid on the date when the same shall be due and payable You shall be liable to pay interest upon such hire charge or other sum at the rate of 5% per annum above the base rate of HSBC Bank from time to time during the period in which interest is payable from the due date until the actual date of payment.

9.12 The Equipment remains at all times Our property and You shall have no right title or interest therein save that of a hirer thereof under this Agreement. You shall not sell or offer for sale assign mortgage pledge underlet lend or otherwise deal with the Equipment or any part or parts thereof or deal with Your interest hereunder which interest is personal to You and You will keep the Equipment in Your own possession for Your own use and will not allow any alien or other encumbrance to be created in respect of the same.

9.13 We may terminate the hire of the Equipment by You forthwith on giving written notice on the happening of any of the following events; - if You fail to pay any hire charges hereunder within 20 days of the same having become due (whether demanded or not) or fail to observe or perform any term of this Agreement (if capable of cure, not cured after 10 days’ notice to do so) or if You commit any act of bankruptcy or being a company go into administration or liquidation or make any arrangement with or assignment for the benefit of Your creditors or if distress is levied or threatened on any of Your property.

9.14 The termination of the Agreement and the hire thereby created or material breach of a party shall not affect any other right or remedy of a party against the other and shall not affect the right of the non-breaching party to recover damages from the other in respect of any breach of the Agreement. Without prejudice to the generality thereof it shall not affect Our right to recover from You any hire charges and other monies due to Us at the date of such termination.

9.15 Any time or other indulgence granted by a party to the other shall not affect the rights of such party under the Agreement.

9.16 We shall not in any circumstances be liable to You or any third party for any claims in respect of loss of profits, special damage, or any consequential loss whatsoever or be under any liability for or in respect of loss or damage to persons or property howsoever caused, whether arising directly or indirectly from the hire or use of the Equipment.

9.17 Insurance – We agree to insure the Equipment only against non-delivery and accidental damage. Particulars of replacement values will be supplied by Us on request.

9.18 You shall be solely responsible for and hold Us fully indemnified against all claims, demands, liabilities, losses, damages, proceedings, costs and expenses which may be brought against or incurred by Us as a result of any accident involving the Equipment due to the use of such Equipment by You.

9.19 We give no warranty or undertaking relating to the Equipment express implied or statutory in connection with the fitness for any purpose or age of the Equipment and any conditions and warranties are hereby expressly excluded insofar as permitted by statute and (save for Our liability for death or personal injury caused by Our negligence or our employees or agents in which event Our liability shall not be limited) subject to complying with the terms hereof. We shall not be responsible for any liability, claims, loss, damage or expense of any kind or nature caused directly or indirectly by the Equipment or its use.

9.20 You are advised not to use any original materials on in or in connection with the use of the Equipment and We cannot accept any responsibility in connection with any loss or damage to or in respect of the same including without limitation any content stored on the Equipment which may be lost, malfunction or become damaged.

SECTION 10: General

10.1 You acknowledge that these terms and conditions in their entirety, together with the Work Order, constitute the entire agreement between Us and You relating to Your use of ChilliPharm Services and, if applicable, Your hire of the Equipment and that You have not relied upon any communication or representation, oral or written, which is not contained in these terms and conditions. In the event of any conflict between the Work Order and these terms and conditions, the Work Order shall prevail and this Agreement shall override any contradictory terms and/or conditions that You may send Us with any order placed with Us.

10.2 Any order or instruction required to be given to ChilliPharm by You shall be given by You or Your duly authorised agent in writing. If given orally it shall be confirmed in writing to Us within three (3) working days. We shall not be liable for the consequences of any inaccuracies or misunderstandings resulting from any order or instructions from You not received by Us in writing or so confirmed. You shall be solely responsible for any statement, representation, order, instruction, guidance or advice made or given by You to Us.

10.3 We reserve the right to vary our terms and conditions. You will be notified of changes by e-mail and will be deemed to have accepted such variation within 5 business days of receiving such notification unless you have communicated with Us to the contrary within such 5 business day period, or in the event that You place another order for ChilliPharm Services after receiving such notification. You may only vary these terms and conditions if agreed in advance with Us in writing.

10.4 Although each party will use all reasonable endeavours to discharge its obligations under this agreement in a prompt and efficient manner, it does not accept responsibility for any failure or delay caused by circumstances beyond its control.

10.5 Neither party shall use or authorise any party to use the other parties trading name, trademark or corporate branding without that party’s prior written consent not to be unreasonably withheld.

10.6 You undertake to comply with any export control or other regulations to which our Services and/or the Equipment might be subject.

10.7 If any of these terms and conditions shall be deemed by a court to be unenforceable, that shall in no way affect the provision, validity or enforceability of the other terms and conditions which shall remain in full force and effect.

10.8 Any failure on Our part to enforce these terms and conditions shall not amount to a waiver of Our right to do so or acceptance of Your conduct which gives rise to Our rights as aforesaid.

10.9 These terms and conditions do not operate to create an agency, joint venture or partnership between You and Us.

10.10 We reserve the right to subcontract provision or parts of our Services to parties selected by Us, however ChilliPharm shall notify You in advance of using subcontractors. We use a third party hosting service for ChilliPharm Vault (details available on request).

10.11 This Agreement is between You and Us and nothing in this Agreement shall create or confer any rights or other benefits on or in favour of any person who is not a party to this Agreement whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

10.12 All notices required to be given hereunder shall be sent by e-mail to a current e-mail address of the party to receive such notice and provided the party sending such e-mail does not receive a failure of delivery notice within 3 hours of sending such e-mail, shall be deemed served on the day of sending if sent between 9am and 5pm (UK time) on a working day, otherwise such notice shall be deemed served on the subsequent working day. All notices hereunder shall also be sent in hard copy by registered post to the address of the party to be served as set out on the Work Order and shall be deemed served within 5 days of posting thereof.

10.13 These terms and conditions shall be governed and interpreted exclusively according to the laws of England and Wales, and both parties agree that the English courts shall have exclusive jurisdiction in respect of any dispute arising hereunder.

10.14 This Agreement (a) may be executed in counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute a single agreement binding on both parties, and (b) will be considered executed by a party when the signature of such party is delivered physically or by email or facsimile transmission to the other party or parties, as appropriate. The parties agree that any signature delivered by email or facsimile transmission shall have the same force and effect as an original signature.

SECTION 11: Security and Confidentiality

11.1 ChilliPharm will maintain the full security of ChilliPharm Vault and the confidentiality of patient videos, clinical trials, instructions and other content held therein. However ChilliPharm will not have any liability or obligations for matters outside of Our control or in the event of a breach of security, such as users of the ChilliPharm Services sharing log in and password details or patient videos being delivered or shared via ChilliPharm Vault, or by the actions of the recipients of patient videos.

11.2 Each party hereby agrees to keep all information about the other party and its operations that comes to its attention by reason of this Agreement completely confidential at all times, except only where such information is already known to the respective party or is already in the public domain (other than through a breach of this provision) and to treat such information about the other party and its operations with the same degree of care at least as it applies to its own confidential information.

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