Terms of Service
1. The Parties
This Agreement applies between:
- The Person in law, whether an individual or company, to whom Cahootify Limited provides the Service, referred to as the "Customer" and;
- Cahootify Limited, based at The Guild Coworking Hub, High Street, Bath BA1 5EB, company no. 08544342, referred to as the "Supplier".
References to "we" and "they" and "the Parties" and "us" shall be construed as meaning both the Customer and the Supplier.
2. The Service
The Supplier is a specialist in providing a hosted, web-based team-building and talent-matching system (the System) and related Services, including the creation of Hubs with their own unique look-and-feel, and the provision of various Modules (i.e. defined feature-sets)
On entering in to this Agreement, the Customer will be being supplied by the Supplier with elements of this System and these Services.
Those elements of the System used by the Customer at any one time shall henceforth be referred to as the Customer System and all Services provided at any one time are henceforth referred to as the Service.
The Customer System and associated Hubs are accessed by the Customer via either:
- the cahootify.com domain name.
- Full branded domain names under the ownership of the Customer (e.g. "www.customer-company.com") that point to a particular Hub, henceforth referred to as a Customer Domain. Customer Domains can, at the discretion of the Customer, either be hosted by the Customer independently and pointed to a Supplier Hub, or hosted by the Supplier on behalf of the Customer.
All subscriptions and charges ("Charges") will be detailed on the separate pricing page as soon as we introduce paid services
Standard Services and Modules will be provided for the standard one-off build charges and monthly subscription rates detailed on the separate pricing page (henceforth referred to as the "Charges"). (At time of writing all services are free. If the pricing page link returns a "Error 404" message then it means we haven't yet introduced paid services.)
Non-standard services, modules and/or upgrades to the System will, for each Project, be specified in a Project Specification to be signed by both Parties.
This Agreement also relates to the on-going hosting, maintenance, error resolution, upgrades and technical support of the Customer System.
3. The Agreement
Please read this document ("the Agreement") carefully as it forms the entire basis for our Agreement when put together with:
- The Supplier's "Service Charges" and "Subscription Rates" ("Charges") and;
- Each Project Specification for non-standard Services, Modules and/or upgrades to the System and;
- Each Purchase Order from the Customer
The above statement is to the exclusion of anything we may have already agreed or any other terms that either of us may seek to impose or imply into our relationship. The signature by both Parties of this Agreement constitutes unqualified acceptance of these terms in their entirety.
- The Customer agrees not to use the Service for the purpose of;
- The collection/distribution of obscene or pornographic materials.
- The distribution of unsolicited Email.
- The collection/distribution of any material that infringes the intellectual property rights of any person.
- The Parties shall work together to progress the Customer System using reasonable care and skill in their work and dealings with each other and with Third Parties who may become involved in the Customer System.
- The Customer is under no obligation to proceed with the purchase of Non-Standard Services until both Parties have signed the related Project Specification.
- The Parties shall provide a safe working environment for each other's employees, contractors or agents who carry out work on the Customer System at their premises.
5. Payment Terms
All subscriptions and charges ("Charges") will be detailed on the separate pricing page as soon as we introduce paid services. (At time of writing all services are free. If the pricing page link returns a "Error 404" message then it means we haven't yet introduced paid services.)
- For all Projects charged on a one-off basis, the Customer will pay:
- A deposit of 50% prior to the commencement of the work
- The balance of 50%, due within two months of delivery, unless rejected by the Customer on reasonable grounds within that two months, in which case the Supplier will deliver a reworked version of the Project and the balance will once again be due within two months of delivery.
- For all monthly subscriptions, whether standard or otherwise:
- The Customer will pay the Supplier one month in advance by Credit/Debit Card, to be taken by the Supplier automatically, or quarterly in advance by cheque or BACS transfer. It's at the Customer's discretion which of these payment options to use.
- Subscription charges for a particular plan begin on the date at which the Customer upgrades or accesses the Customer System with the features described for that plan - at the end of any free trial period of applicable.
- There is no minimum subscription period - that is, subscriptions can be cancelled by the Customer at any time but any paid-up subscriptions are non-refundable.
- Invoices for payments by cheque or BACS transfer will be issued by the Supplier to the Customer in advance. Invoices for paid-up subscriptions by Credit/Debit Card will be issued by the Supplier to the Customer quarterly in arrears.
- The Supplier commits to not raising Subscription charges beyond the level of inflation as given by the Retail Price Index from the moment that the Customer enters in to this Agreement in relation to whichever plan/s the Customer is subscribing to. The Supplier reserves the right to raise the aforementioned subscription charges in line with inflation. The Supplier reserves the right to raise Hub Service and Subscription charges to new Customers at any time to whichever level it chooses.
- An exception to clause 5.5 above, is if the Customer subscribes at a stage when the Supplier is not VAT registered, the Supplier reserves the right to add VAT to the subscription charges at the point that the Supplier becomes VAT registered.
6. Commissioning of New Work
- For non-standard Modules that require a Project Specification:
- The Customer shall first provide the Supplier with a written brief. If necessary, the Customer and the Supplier will then discuss the brief until all elements are clearly understood.
- Unless the Supplier wishes to decline the brief, the Supplier will then respond with a clear written Project Specification, which includes a fixed quote for the Project. The Customer and the Supplier will discuss and amend the Project Specification where necessary.
- The Supplier will hold any final quote given in the Project Specification open for a period of 60 days.
- If the Customer wishes to go ahead with the Project, then a manager or director from the Supplier and a manager or director from the Customer shall sign the Project Specification. The Project then becomes included in the scope of this Agreement.
7. Intellectual Property Rights
- Once the Supplier has completed any visual designs and initial Content (documents, text, images etc.) produced for the Customer, the Supplier shall assign to the Customer all Rights owned in that Content throughout the world, PROVIDED THAT the Supplier shall be entitled to use the Intellectual Property Rights devised by it for its own promotional purposes.
- The Supplier hereby warrants that it will procure the assignment of all Rights in Third Party Content incorporated in the Customer System to the Customer to give effect to the above paragraph unless agreed otherwise with the Customer in writing.
- The Supplier shall be allowed a co-branding logo and message at the top of any Hub for the design and creation of the Hub, and/or for the provision of the System.
- The Customer owns all Rights in any Content created by the Customer using the content management tools of the Customer System.
- Subject to restrictions on use of Third Party Content, the Customer shall have the right to add to or modify any of the Content without the Supplier's permission or supervision, whether or not that Content was initially created by the Supplier.
- All Rights in the Software remain with the Supplier. However, on Delivery of each Hub, Project, Service or Module, the Supplier will grant to the Customer a nonexclusive worldwide irrevocable royalty-free licence to use all Rights in the Software for the purposes of operating the Customer System, provided that the Supplier's standard subscription fees continue to be paid. For the avoidance of doubt, such licence shall extend to the Customer's successors and assignees; any third party for whose benefit the Customer System was provided; and to users of the Customer System. Where any element of the Software comprises Third Party Material, the Supplier will obtain a licence for the Customer or assist the Customer to obtain a licence directly from such third party.
- The Supplier shall, before Completion of any Project, permit the Customer to use any Content initially created by the Supplier, and to use the Software for the purposes of complying with its obligations set out in “Obligations” (clause 4) and to review the Customer System in accordance with any active Project schedule.
- The Supplier shall at any time upon request of the Customer do and execute all such acts, deeds, documents and things as may reasonably be required by the Customer to perfect and complete the grant of the Rights and licenses conferred by this Agreement.
- With regard to any ongoing improvements, modifications or other alterations that the Supplier makes to any parts of the Customer System, whether commissioned by the Customer or provided as part of the standard Service, all Rights in, and licence to use, such new Software shall be owned in the same way as is detailed above.
8. Hosting, Maintenance and Upgrades
- For as long as the Customer pays the relevant Subscriptions, the Supplier will host and maintain the Customer System. This service includes:
- Hosting of any commissioned Hubs.
- Full daily back ups of the Customer Data.
- On-going maintenance, bug fixes, code optimisation and upgrades.
- Holding and automatic renewal of your domain names. Any Customer domain names will be charged at a rate detailed in the Charges on the pricing page. (At time of writing all services are free. If the pricing page link returns a "Error 404" message then it means we haven't yet introduced paid services.)
- There is no option for the Customer to host the Customer System with an alternative Internet Services Provider.
- The Customer will notify the Supplier of any maintenance issues or Software bugs using whichever support system the Supplier has in place at that time.
- The Supplier will provide the Customer with a designated hotline number in the unlikely event that there are critical issues that cause the Customer severe operating difficulties, such as being unable to log in to the Customer System or a Hub going down completely. The number will be available from 9am to 6pm. The Supplier will use its best endeavour to fix any such issues within 4 hours of notification.
- The hosting environment will be secure and adequately protected against virus or hacking attacks.
- The Customer is to be notified of any changes in the hosting arrangements.
9. Training and Support
- As part of the standard Service, The Supplier will provide the Customer with advice and support in response to at least 3 email requests per month. In reality The Supplier will rarely refuse a request if this limit is exceeded, but The Supplier reserves the right to arrange a more comprehensive support package in return for a monthly fee from The Customer in cases where responding to support requests becomes particularly time intensive. Of course, this potential limit does not include the reporting of issues where there's a bug in the software.
- Requests will be responded to, either by email or telephone, at some time during the two working days following the day on which the request was made, by 5.30pm at the latest. A working day is defined as Monday to Friday, excluding bank holidays.
- The Supplier will make trained and qualified personnel available to respond to all requests in the manner specified above.
- Immediately following the signing of this agreement, the Customer must provide the Supplier with the name, function, telephone number and e-mail address of up to two people authorised to receive support.
- While the Supplier will always use its best endeavour to answer support requests that fall within the specified quota, the Supplier reserves the right to consider certain requests to be a training issue rather than a support issue, and therefore to offer training rather than a standard support response. The Supplier reserves the right to charge for such training at the Supplier's standard rate.
- Time spent on requests that go beyond 3 per month shall be charged at the Supplier's standard rate.
10. Third Party Services and Websites
The Service and the Customer System referred to in this Agreement may contain features and functionalities that link the Customer System to, provide the Customer System with access to, or integrate the Customer System with, third party content and/or services, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole ("Third Party Services").
11. Confidential Information
- Both Parties acknowledge a duty not to disclose without the other's prior written permission any information concerning the other's business, its business plans, customers or associated companies or resulting from studies or surveys commissioned by the Customer (“Confidential Information”), either during the term of this Agreement or after termination of the Agreement to any person except:
Both Parties undertake to ensure that persons and bodies referred to above are made aware before the disclosure of any part of the information that the same is confidential and that they owe a duty of confidence to the other Party.
- Their own employees and then only to those employees who need to know the same.
- Any person who is for the time being appointed by the Supplier to maintain the Equipment on which the System is being used, and then only to the extent necessary to enable such a person to properly maintain the Equipment.
- In particular, the Supplier acknowledges its responsibility to treat in complete confidence all the marketing, sales and other information and statistics relating to the Customer's business with which the Customer may supply the Developer in the course of working together.
- Each party to this Agreement shall promptly notify the other Party if it becomes aware of any breach of confidence by any person to whom it divulges all or part of the Information and shall give the other Party all reasonable assistance in connection with any proceedings which the other Party may institute against such persons for breach of confidence.
- If the Customer requests it, any Confidential Information given by the Customer to the Developer shall be returned to the Customer when no longer required by the Developer to complete the corresponding Project or Service.
- The Developer shall impose these obligations in respect of Confidential Information on its own personnel and obtain written assurances from any third parties to whom Confidential Information has to be disclosed in order to enable the Developer to carry out its obligations.
- This clause shall not prevent:
- The disclosure of Confidential Information in the proper performance of the Developer's duties;
- The disclosure of Confidential Information if required by law;
- The disclosure of Confidential Information that has come into the public domain otherwise than through unauthorised disclosure.
12. General Warranties and Indemnities
- Should either Party or its employees sustain any loss or liability, costs (including legal costs) or damages as a result of the other's breach of this Agreement, the Party in breach shall indemnify the other in full save in respect of consequential loss.
- The Developer warrants that, in relation to the Customer System and any included Hubs, it shall not publish any Content on the Internet without the Customer's prior authorisation, except in cases where example Content is required to demonstrate the functionality of the Customer System or the design and navigational structure of any Hubs (“Demo Content”). The Supplier will indemnify the Customer in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of the publication of such unauthorised Demo Content save in respect of consequential loss.
- Except where the Developer has breached this Agreement, or where the Developer has published Demo Content, the Customer accepts full legal responsibility for publication of the Content on the Internet and will carry out a full audit of any Content before publishing or authorising the Supplier to publish it on the Internet and the Customer will indemnify the Supplier in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of such publication save in respect of consequential loss.
- For the avoidance of doubt any costs incurred in taking legal or other advice and undertaking trade mark or other searches and enquiries as the Parties may agree should be undertaken shall be paid by the Customer subject to prior written approval of such costs by the Customer.
- In addition, the Customer warrants to the Supplier that it will comply with the terms of all Third Party licences notified in writing to it by the Supplier as required for the operation of the Customer System and the Customer will indemnify the Supplier in respect of any loss or liability, costs (including legal costs) or damages incurred as a result of such use of Third Party services save in respect of consequential loss.
13. Limits on Liability
- Nothing in this Agreement limits liability for death or personal injury caused by negligence or fraudulent miss-statement.
- Subject to the above clause, the total liability of either Party to the other shall not in any circumstances exceed £1m sterling.
- If either Party is affected by any circumstances beyond our reasonable control (including but without limitation any act of God, war or military action, terrorism, sanction, strike, fire, natural disaster (“Force Majeure”)) it shall forthwith notify the other party of the nature and extent thereof. Neither Party shall be liable to the other for delay in performance, or non-performance of any of its obligations under this Agreement when due to any Force Majeure of which it has notified the other and the time for performance of that obligation shall be extended accordingly.
- During the period before the Supplier has obtained cash funding from third party investors, the Supplier shall not be required to maintain employer's liability, public liability and professional indemnity insurance cover in respect of its liabilities arising out of or connected with this Agreement. This will change once the Supplier has received initial seed funding.
- Both the Customer and Supplier shall comply with any applicable laws and other rules and regulations, such as data protection legislation, gaming, betting, lotteries, amusements, financial services, telecommunications and broadcasting etc. whether on a statutory or self-regulatory basis and to co-operate with each other in order to ensure such compliance, including keeping the other informed as soon as they become aware of any potential relevant issue.
16. Data Protection
- In addition to clause 15 above, the Customer shall be responsible for briefing the Supplier about its data protection requirements in respect of the Customer System and Hubs and shall provide the Supplier with all such materials and information as is needed to ensure that the design of any Hubs is compliant with relevant data protection laws and regulations.
17. Customer's Source Content
- The Customer warrants to the Supplier that Customer Source Content is free of all defamatory matter, inaccuracies or legal restriction, including advertising regulations. In this regard, the Customer hereby agrees to indemnify the Supplier against all costs and losses whatsoever incurred by the Supplier, its employees or sub-contractors as a result of any claim made against the Customer or any of the above in any jurisdiction in the world for infringement of any Intellectual Property Rights in Customer Source Content, defamation or any other action as a result of breach of this warranty.
- The Customer and Developer undertake that they shall not for the period of 6 months after termination of this Agreement, solicit or engage any person who was an employee or consultant or otherwise engaged by the other during such period and who had dealings with them, unless with the express permission of the other.
- Whilst the Customer and Developer consider this restriction to be reasonable we both agree that if a court of competent jurisdiction considers that such restriction is invalid but would have been valid if either the period or its scope thereof were reduced then such restriction shall continue to apply but with such restriction or restrictions necessary to enable its validity.
19. Contract Term and Validity
- This Agreement becomes valid immediately;
- Following a signature by both Parties, or
- Following use of the service by the Customer.
- This Agreement is valid for as long as the Customer continues to Subscribe to the Service.
- The Service and System is continually evolving and the Supplier may wish to modify this Agreement from time to time. The Customer will be notified ahead of time if these changes in any way increase the price or reduce the specification of any of the services in the current Customer System. In these cases, the Customer will have the opportunity to object to any changes that the Customer does not consider to be in its interest and the Supplier is obligated to work with the Customer to find an acceptable solution to both Parties. If such a solution cannot be found, the issue will be decided by putting it to the vote of all Customers using the System. The Customer will be notified in arrears if the changes to the Agreement do not in any way increase the price or reduce the specification of any of the services in the current Customer System.
- If any provision of this Agreement is declared by any competent authority to be void, illegal or otherwise unenforceable, the remaining provisions of this agreement shall remain in full force and effect.
- Subscriptions unpaid by the Customer 30 days after the date of the subscription became due, or accounts due by invoice unpaid by the Customer 60 days after the payment date of invoice will be considered in default. If after 7 days of a written warning the Customer has still failed to make payment, the Developer reserves the right to completely deny access to the Customer System. Denial of access does not relieve the Customer of any obligation to pay any outstanding charges assessed to the Customer's account.
- Cheques returned for insufficient funds will be assessed a return charge of £30 and the Customer will immediately be considered in default until full payment is received.
- In the event of the Customer being denied access to the System due to non-payment, such access will be permitted once the accounts have been paid and the System will remain unchanged.
- The Customer will not be in default if non-payment of an invoice has arisen from any breach of this Agreement or other default on the part of the Developer.
- The Supplier reserves the right to charge overdue invoices the rate of interest laid out in English law.
21. Cancellation, Termination and Service Sustainability
- The Customer may cancel this Agreement and so the Service at any time. The Supplier reserves the right to insist upon confirmation by post of any cancellation request, primarily to ensure that no accounts are cancelled in error. Following notification of cancellation by the Customer, the Service will be withdrawn from the date up to which the Customer has paid the Subscription.
- Following cancellation of the Service, if any charges remain due, an invoice will be sent for outstanding work by the Supplier completed to the date of first notice of cancellation, for payment in full within 30 days.
- Without prejudice to any other rights and remedies, either the Customer or the Developer may by written notice to the other party terminate this Agreement with immediate effect following the occurrence of one or more of the following events:
- If the other Party has committed any breach of any material term of this Agreement and (if the breach is capable of remedy) has failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring remedy; or
- If the other Party fails to pay any sum due to the other Party within 28 days of receipt of an invoice; or
- If the other Party has a receiver appointed over all or a substantial part of its assets, or is the subject of any petition for winding up or issues any notice in connection with the passing of any resolution by its shareholders for its winding up or is otherwise the subject of proceedings for bankruptcy or enters into a voluntary arrangement or is otherwise unable to pay its debts as they fall due, or otherwise ceases trading.
- Upon cancellation of the Service by the Customer, a copy of all the System data (including database, images, media, text and other files) will be made available either on CD ROM or in a compressed form by email.
- The Supplier may not terminate the Agreement unless:
- The Supplier has a receiver appointed over all or a substantial part of its assets, or is the subject of any petition for winding up or issues any notice in connection with the passing of any resolution by its shareholders for its winding up or is otherwise the subject of proceedings for bankruptcy, or otherwise ceases trading.
- For reasons outlined in point 3 above.
- In the event that the Supplier terminates the Agreement for the reasons outlined in point 5a above, or in the event that the Customer terminates the Agreement for reasons outlined in point 4 above, the Supplier will grant the Customer a single-user licence to continue using and developing the Software in perpetuity. The Supplier will provide the Customer with unencrypted source code and programmers' notes along with all program files and Customer Data files. The Supplier will also use its best endeavour to ensure a smooth transfer of the Service from the Supplier to the an alternative supplier as designated by the Customer. This will be provided within 30 days of the date of termination or cancellation, at no additional cost to the Customer.
- For the avoidance of doubt, any termination shall be without prejudice to the provisions of clause 10 (Confidential Information) and to any other obligations of a continuing nature or any other Rights that either Party may have under this Agreement or otherwise.
22. Assignment to Third Parties
- Neither Party shall assign the benefit or burden of this Agreement to a Third Party without the other’s prior written consent (not to be unreasonably withheld), except where the Customer is acting as an agent for a Third Party, in which case the Customer shall at any time be able to assign the benefit of this Agreement to that (and only to that) Third Party.
23. Successors and Assignees
- This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assignees, and reference to a Party in this Agreement shall include its successors and permitted assignees.
- In this agreement references to a Party include a person:
- Who for the time being is entitled (by assignment, novation or otherwise) to that Party’s rights under this Agreement (or any interest in those rights); or
- Who, as administrator, liquidator or otherwise, is entitled to exercise those rights; or
- To whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or any other reorganisation involving that Party. For this purpose, references to a Party’s Rights under this agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
24. Dispute Resolution
- Unless the Parties agree otherwise, no litigation in respect of any dispute between them shall proceed unless and until the Parties have used their best endeavours amicably to settle the dispute through non-binding confidential mediation. Mediation shall take place in England with a Mediator appointed by the Centre for Dispute Resolution and the costs of any such mediation process shall be shared equally between the Parties.
- Nothing in this Agreement shall be deemed to constitute a partnership between the Customer and the Supplier and neither of us shall do or suffer to be done anything whereby it may be represented as the other’s partner.
- Where the Supplier deals with any third party in relation to this Agreement, it does so as principal and not as the agent of the Customer.
- If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect, that shall not affect the legality or validity or enforceability of any other provision of this Agreement.
- No forbearance, delay or indulgence by either Party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that Party nor shall any waiver of rights operate as a waiver of any subsequent breach of this Agreement.
- The United Kingdom shall be considered the place of first publication of any material on the Internet.
- This Agreement may only be varied by written agreement between the Parties.
- This Agreement shall be governed by and construed In accordance with English law and the parties submit to the nonexclusive jurisdiction of the English Courts.