The Digital Asset and Clinical Video Management Specialists

ChilliVault Terms and Conditions

Last Updated: April 2015

These Terms and Conditions are to be read in conjunction with the signed and dated Contract Terms to which they are attached, and together form the basis of the Agreement between ChilliBean and the party on whose behalf the Contract Terms have been signed. For storage and distribution of commercials using the ChilliVault service, these terms and conditions are to be read in conjunction with the e-mail or other correspondence passing between the parties setting out the commercial terms for such service, which is in place of the Contract Terms sheet. For storage and distribution of commercials and other content, see the dedicated sections below from Section 10 onwards dealing with this, which are to be read in conjunction with the rest of the general terms and conditions below.

SECTION 1: Definitions

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

ChilliBean: ChilliBean Limited, a company incorporated in England and Wales with registered number 4775994, operating out of 2nd Floor, 53 Frith Street, London W1D 4SN.

ChilliBean Services - SohoSoHo, ChilliVault, ChilliBean Distribution are the titles of the respective services provided by Chillibean on the terms and conditions set out below.

ChilliVault: the online digital asset management solution provided by ChilliBean and located at (and other bespoke addresses) that is used to store and distribute commercials and other content by ChilliBean and subscribers.

Contract Terms: the sheet to which these terms and conditions are attached signed on Your behalf, which sets out the key commercial terms (including subscription fee) agreed between Us and You for the Chillibean Services that You have engaged Us to provide to You.

Recipient: the company or person(s) whom You nominate to receive commercials or other content from Us using ChilliVault.

SohoSoHo: - the showreels site that publishes and publicises subscribers’ showreels and other work via links to the media that is stored in SohoSoHo or ChilliVault.

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

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

SECTION 2: Use of ChilliBean Services

2.1 The provision and use of ChilliBean Services is governed by the Contract Terms and the terms and conditions set out herein.

2.2 Access to ChilliBean online Services is only by username (a valid email address) and confidential password. A limited number of passwords may be provided to You, for Your employees/agents, in a format specified by Us.

2.3 You may trial ChilliVault without charge for a period of 14 days, after which you must subscribe, either on a private or corporate basis, to ChilliVault.

2.4 It is the responsibility of all users/customers to ensure that their account is up to date and in credit before making use of the ChilliBean Services.

2.5 You are required to keep your password(s) confidential (but such password(s) may be shared among Your employees) 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).

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

2.7 Data stored for You by ChilliBean will remain accessible as long as your account is in credit. If any charges are not settled by the relevant due date, ChilliBean is no longer obliged to retain or be responsible for any data on your behalf.

SECTION 3: Charges and Credit Terms

3.1 The Charges payable for ChilliBean Services are as set out on the Contract Terms, or as separately agreed with Us, and are exclusive of VAT which is payable in addition to such charges. Additional features and services may be available for a one-off fee or an increased subscription price, all to be agreed with Us in advance and to be recorded in writing as an addendum to this Agreement.

3.2 Charges for SohoSoHo are payable in advance of the services to be provided. We reserve the right to charge interest at 4% above the Bank of England base rate on any charges not paid by their due date, for as long as they remain unpaid.

3.3 We also reserve the right to bar access to any services and data where payments are overdue or dishonoured.

3.4 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 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 We may send Your nominated overseas representative or distributor a low resolution proxy when distributing data on your behalf, for confirmation of the data You have asked Us to distribute. This shall be deemed to be correct, unless Your said nominated representative notifies Us within 24 hours of receipt of such information that it does not correspond with the data we are meant to be distributing for You.

4.2 Following the minimum agreed contract term You will give us 90 days notice in writing (unless otherwise stated) if you wish to cancel any contract in place between You and Us.

4.3 We will remove all client data from Our systems if You cancel 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 Our ChilliBean Services in accordance with section 6 below.

SECTION 5: Data Rights and Protection

5.1 You acknowledge that in order to supply a high level of service and support, it may be necessary for Us to access client data.

5.2 You must obtain all necessary permissions to store data in SohoSoHo and ChilliVault from all relevant rights owners. SohoSoHo or ChilliVault must not be knowingly used to store data infected in any way, whether by viruses or other malicious content, or for storing defamatory content. We reserve the right to remove content contravening this condition.

5.3 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. You further consent that this data may be sold or transferred by ChilliBean to a third party purchasing at least the majority of Chillibean’s assets.

5.4 By signing the Contract Terms You confirm that you have the necessary consents or permissions required for this section 5.

SECTION 6: Termination and Default

6.1 We may terminate access to SohoSoHo or ChilliVault immediately by notice in writing to You in the event that You:-

  • breach Our terms and conditions, (and, if such breach is capable of cure, fail to remedy such breach after 5 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 Chillibean Services requested.

6.2 Termination of the relevant Service entitles us to delete any data You have stored in SohoSoHo or ChilliVault.

6.3 In addition to the above, We reserve the right to terminate the provision of SohoSoHo or ChilliVault to You on three months written notice to You. We will assist 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 ChilliBean 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 Chillibean Services in accordance with these terms and conditions.
  • Our liability for any direct loss You suffer as a result of a 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 You shall indemnify ChilliBean 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 a password issued in good faith to You
  • any claims arising in any way from data stored in SohoSoHo or ChilliVault by You or any data submitted to ChilliBean, 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 Our Service.

8.4 We shall not be responsible or liable for:-

  • loss or damage resulting from any person gaining unauthorised access to ChilliBean Services or ChilliVault, whether through You or otherwise
  • the disclosure of data from ChilliBean Services including ChilliVault 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 ChilliBean Services or termination of this Agreement in accordance with these terms and conditions
  • messages or other provision of the ChilliBean Services being delayed because of any spam filtering system You or Your customers to whom We send data, have in place.

8.5 You acknowledge that SohoSoHo and ChilliVault 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, We shall not be responsible or liable for:

  • loss or corruption of data transferred to or from SohoSoHo or ChilliVault,
  • the unavailability of the Service due to reasons outside of our reasonable control,
  • Your or Your customer’s inability to access the Service,
  • failure of any performance by any local delivery partner that You or We nominate,
  • unavailability of the 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: General

9.1 You acknowledge that these terms and conditions in their entirety, together with the Contract Terms, constitute the entire agreement between Us and You relating to Your use of ChilliBean Services 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 these terms and conditions and the Contract Terms the Contract Terms shall prevail, and this Agreement shall override any contradictory terms and/or conditions that You may send Us with any order placed with Us.

9.2 We reserve the right to vary our terms and conditions. You will be notified of changes via our Service and will be deemed to accept such variation within 3 days of receiving such notification unless you have communicated with Us to the contrary within such 3 day period, or in the event that You place another order for ChilliBean Services after receiving such notification. You may only vary these terms and conditions if agreed in advance with Us in writing.

9.3 You shall not use or authorise any party to use any ChilliBean trading name or trade mark without our prior written consent.

9.4 You undertake to comply with any export control or other regulations to which our Services might be subject.

9.5 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.

9.6 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.

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

9.8 We reserve the right to subcontract provision or parts of our Services to parties selected by Us.

9.9 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.

9.10 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), otherwise such notice shall be deemed served on the subsequent 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 Contract Terms and shall be deemed served within 3 days of posting thereof.

9.11 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.

SECTION 10: Commercials Storage and Distribution

The following sections set out the specific terms and conditions for the services provided through ChilliVault for the storage and distribution of commercials and other content. Where these terms contradict the rest of the general terms and conditions above, these terms below prevail. The definitions in Section 1 above also apply here.

SECTION 11: Submitting Commercials to ChilliBean for Distribution

11.1 To place an order with ChilliBean for the distribution of commercials, You must supply ChilliBean with a list of intended Recipients, the format required by each Recipient and the necessary deadlines. This information should be supplied reasonably in advance of such deadlines, in writing on e-mail or a paper purchase order, with an authorised purchase order number (which You shall supply to Us). ChilliBean cannot guarantee to meet deadlines unless and until they are mutually agreed in advance between You and ChilliBean prior to an order being accepted.

11.2 It is Your responsibility to make sure that the commercials are supplied to ChilliBean on a timely basis, in one of the formats agreed at the time of booking in order to meet the delivery deadline(s). (A list of current formats that ChilliBean can handle is available on request.)

11.3 The commercials can be supplied either on tape, disc, or other memory device, to Our office in London W1 or can be uploaded into ChilliVault for which ChilliBean can supply a user name and password to log in. ChilliVault’s online availability is 24 x 7, however offline submission to our above office must be submitted during normal office hours (9-5 UK time) unless pre-arranged otherwise.

11.4 You must ensure that any files supplied to ChilliBean are completely free from viruses or any other malware that may affect ChilliBean’s or the Recipient’s IT systems.

11.5 You must also ensure that the commercials supplied as files or on tape meet the necessary and relevant technical specification for broadcast, and it is Your responsibility to ensure that they also comply with all relevant codes of practice. ChilliBean will not accept responsibility for files produced and/or supplied by third parties which do not meet any necessary specifications.

SECTION 12: Distribution of Commercials and Technical Support

12.1 Once a distribution order has been placed and accepted, and the necessary instructions received, ChilliBean will immediately begin the necessary distribution administrative procedures. If any of the supplied material does not meet the required distribution specifications ChilliBean will immediately inform You by telephone and/or e-mail and ask for a new re-formatted copy to be submitted. If ChilliBean are able to correct any faults then that service will be offered to You, charges may be applicable. ChilliBean is not responsible for any delays caused by material being supplied that is not in the correct specified format.

12.2 ChilliBean will deliver the commercials using ChilliVault, ChilliBean’s proprietary digital asset management service. In cases where a Recipient(s) cannot or are unwilling to download the files from Our servers, ChilliBean may fulfill the final delivery by using our network of local partners and supplying the commercial in a format accepted by the Recipient. Reasonable endeavours will be taken in these cases to ensure that all commercials are delivered within the agreed and specified time frame, however this cannot be guaranteed.

12.3 In the event of any failure of the ChilliVault system, ChilliBean will use all reasonable endeavours to try to ensure an alternative delivery method within the required timeframe.

12.4 Commercials delivered by ChilliVault will remain on the ChilliVault servers for 30 days, unless agreed otherwise, or if You have paid the necessary archiving fee, otherwise We reserve the right to remove the relevant commercials or data from our servers and files. ChilliBean reserve the right to hold any material distributed by ChilliVault indefinitely for regulatory, contractual and related purposes.

12.5 ChilliBean’s client services team are available on telephone and e-mail during normal office hours (9-5 UK time). E-mail is monitored 24/7 and emergency numbers are available on request.

SECTION 13: Fees, Invoicing and Payment terms

13.1 ChilliBean will invoice You once the distribution job has been completed. Charges for ChilliBean Services are negotiated with Us. All agreed charges are exclusive of VAT, which is payable (if applicable) in addition at the time the invoice is due for settlement. All invoices are payable within 30 days.

13.2 ChilliBean will invoice the amount as per the original order and charge for commercials that have been delivered in accordance with the order’s instructions, even if the commercial for whatever reason is not transmitted.

13.3 ChilliBean will not charge for commercials delivered in error, or where ChilliBean has failed to deliver, except in the circumstances where the late or failed distribution was due to the commercial arriving late, without the required distribution details, or generally not in accordance with the agreed specification or format.

13.4 For invoices greater than 14 days overdue, ChilliBean may without further notice charge interest at the rate of 3.5% per annum above LIBOR, for the period over 30 days from the invoice date that the sum remains unpaid. ChilliBean will also be entitled to reimbursement of reasonable costs incurred in the recovery of such sums.

13.5 ChilliBean is not responsible for the payment to third parties such as broadcasters for any air time fees, including without limitation, late copy charges and cancellation fees.

SECTION 14: Security and Confidentiality

14.1 ChilliBean will maintain full security of ChilliVault and the confidentiality of commercials and instructions held therein. However ChilliBean will not have any liability or obligations in the event of a breach of security, such as users of ChilliBean Services sharing log in and password details or commercials being delivered or shared via ChilliVault, or by the actions of the Recipients of commercials.

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