Terms and Conditions

ChaosIQ Terms of Service

About Us

We are ChaosIQ Limited, a company registered in England and Wales under company registration number 11438202, with our registered office at Flat 2, Riplingham, 41 Gaudick Road, Eastbourne, England, BN20 7LW. We refer to ourselves as “ChaosIQ” in these Terms of Service.

These Terms of Service

These Terms of Service govern access to and use of the ChaosIQ Product and the ChaosIQ Services by the Customer.

There is no need to sign these Terms of Service. They are deemed to be automatically accepted when the Customer accepts the Order Form or when ChaosIQ makes the ChaosIQ Product and / or the ChaosIQ Services available to the Customer (whichever is sooner).

Interpretation

The definitions and rules of interpretation in this clause apply in this Contract.

Authorised Users
Means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the ChaosIQ Product.
Business Day
Means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
ChaosIQ Product
Means ChaosIQ’s production-ready packaged product which is provided to the Customer on a software-as-a-service (SaaS) basis.
ChaosIQ Services
Means the services provided by ChaosIQ to the Customer which are additional to the ChaosIQ Product and which may include providing the Customer with advice and recommendations regarding Experiments and providing the Customer with consultancy services related to Experiments and chaos engineering generally, and which in each case shall be set out in the Order Form or otherwise agreed in writing between the Parties from time to time (and all such services shall be governed by the terms of this Contract).
Chaos Toolkit
Means the open-source, free and community-driven toolkit and API which allows access to various chaos engineering tools (together with the Extensions).
Charges
Means the charges for the ChaosIQ Product and the ChaosIQ Services as set out in the Order Form (or, if not set out there, ChaosIQ’s standard charges for the ChaosIQ Product and the ChaosIQ Services).
Commencement Date
Means the commencement date set out in the Order Form or the first date ChaosIQ makes the ChaosIQ Product and / or the ChaosIQ Services available to the Customer (whichever is earlier).
Community
Means the community of users of, and subscribers to, the Chaos Toolkit and/or the ChaosIQ Product.
Confidential Information
Means information that is proprietary or confidential and is either clearly labelled as such, would be obviously confidential to a reasonable businessperson, or is identified as Confidential Information in clause 17.5.
Contract
Means this contract between ChaosIQ and the Customer which is made up of the Order Form and these Terms of Service.
Customer
Means the customer set out in the Order Form.
Customer Data
Means the data inputted by the Customer, Authorised Users, or ChaosIQ on the Customer’s behalf for the purpose of using the ChaosIQ Product.
Customer System
Mean the Customer’s IT hardware, software, systems and infrastructure used in the operation of its business.
Derivative Data
Means any data created by or on behalf of ChaosIQ as a result of ChaosIQ (or a third party acting on ChaosIQ’s behalf) processing Customer Data and / or Experiment Data.
Documentation
Means the documentation made available to the Customer by ChaosIQ from time to time which sets out a description of the ChaosIQ Product and the user instructions for the ChaosIQ Product.
Experiment
Means the Customer’s chaos engineering experiment run with the ChaosIQ Product which is designed to demonstrate how the Customer System behaves in the event of a failure.
Experiment Data
Means the data and results from an Experiment.
Extension
Means the driver extensions, plugin extensions and other extensions for the Chaos Toolkit.
Initial Subscription Term
Means the initial term of this Contract as set out in the Order Form (or, if not set out there, 12 months from the Commencement Date).
Intellectual Property Rights
Means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
Library
Means the library of Experiments which are available from the ChaosIQ Product.
Live Environment
Means the Customer’s live IT systems and software used in the operation of its business.
Normal Business Hours
Means 8.00 am to 5.00 pm local UK time, each Business Day.
Order Form
Means ChaosIQ’s order form for the ChaosIQ Product and / or the ChaosIQ Services.
Parties
Means ChaosIQ and the Customer, each a “Party”.
Renewal Period
Means the period described in clause 20.2.
Sandbox Environment
Means a non-production testing environment which allows the Customer to run the Experiments outside the Live Environment.
Software
Means the software applications provided or made available by ChaosIQ as part of the ChaosIQ Product.
Terms of Service
Means the terms of service set out in this document.

Clause, schedule and paragraph headings shall not affect the interpretation of this Contract.

A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

Unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made under that statute or statutory provision from time to time.

References to clauses and schedules are to the clauses and schedules of this Contract; references to paragraphs are to paragraphs of the relevant schedule to this Contract.

Scope of this agreement

This Contract covers the Customer’s use of:

  1. the ChaosIQ Product; and
  2. the ChaosIQ Services.

The Customer shall pay ChaosIQ the Charges for the ChaosIQ Product and the ChaosIQ Services in accordance with clause 15.

Chaos Toolkit

The Customer shall download onto the Customer System, maintain and regularly update the Chaos Toolkit to run the Experiments and to make use of the ChaosIQ Product and the ChaosIQ Services; and

The Customer acknowledges and agrees that if the Customer fails to comply with clause 5.1, the Customer may not be able to make use of the ChaosIQ Product and / or the ChaosIQ Services (in whole or in part) and, in those circumstances, the Customer shall remain liable to pay the Charges to ChaosIQ in accordance with this Contract.

The Customer is solely responsible for its use of the Chaos Toolkit . ChaosIQ shall have no liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, in relation to the Customer’s use of the Chaos Toolkit. The Customer shall indemnify ChaosIQ for all claims, costs, damage and expenses (including reasonable legal expenses) incurred by ChaosIQ as a result of the Customer’s use of the Chaos Toolkit.

Authorised users

Subject to the Customer complying with the terms and conditions of this Contract, ChaosIQ hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to access and use the ChaosIQ Product and the Documentation during the term of this Contract solely for the purpose of conducting the Customer’s own Experiments.

The Customer shall ensure that:

  1. no person shall access or use the ChaosIQ Product except for the Authorised Users;
  2. no Authorised User shall access or use the ChaosIQ Product for any purpose except in relation to the Customer’s own Experiments for the Customer’s own internal business purposes;
  3. each Authorised User shall keep a secure password for his use of the ChaosIQ Product and that each Authorised User shall keep his password confidential; and
  4. if any password is provided to any individual who is not an Authorised User, the Customer shall notify ChaosIQ immediately so ChaosIQ can disable the password.

The Customer shall not access, store, distribute or transmit any viruses or any other technologically harmful code or material, or any material that is unlawful, harmful or offensive, during the course of its use of the ChaosIQ Product or the ChaosIQ Services.

The Customer:

  1. shall not (nor attempt to) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the ChaosIQ Product, the Software and/or Documentation (as applicable) in any form or media or by any means; or
  2. shall not (nor attempt to) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the ChaosIQ Product or the Software; or
  3. shall not (nor attempt to) access all or any part of the ChaosIQ Product and/or Documentation in order to build a product or service which competes with the ChaosIQ Product; or
  4. shall not use the ChaosIQ Product and/or Documentation to provide services to third parties; or
  5. shall not, except as expressly permitted by this Contract, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the ChaosIQ Product and/or Documentation available to any third party except the Authorised Users, or
  6. shall not attempt to obtain, or assist third parties in obtaining, access to the ChaosIQ Product and/or Documentation, other than as expressly permitted by this Contract.

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, and use of, the ChaosIQ Product and the Documentation and, in the event of any such unauthorised access or use, promptly notify ChaosIQ.

The rights provided under this clause 6 are granted to the Customer only, and shall not be considered granted to any subsidiary, holding company or affiliate of the Customer.

Access

ChaosIQ shall make the ChaosIQ Product available to the Customer online as a software-as-a-service (SaaS) product.

ChaosIQ Product

ChaosIQ shall, during the term of this Contract, provide the ChaosIQ Product and make available the Documentation to the Customer on and subject to the terms of this Contract.

ChaosIQ shall use commercially reasonable endeavours to make the ChaosIQ Product available 24 hours a day, seven days a week. However, the Customer acknowledges and agrees that the ChaosIQ Product may sometimes be unavailable due to:

  1. scheduled maintenance work performed outside Normal Business Hours where reasonably practicable; or
  2. the interruption or failure of any part of the ChaosIQ Product or the need to carry out unscheduled maintenance work on the ChaosIQ Product.

ChaosIQ will provide the Customer with the applicable support services set out in the Order Form and in accordance with ChaosIQ's Support Services Policy in effect at the time (as amended by ChaosIQ from time to time).

Data and results

The Customer shall own all right, title and interest in and to all:

  1. Customer Data which is not Personal Data (as defined in the Schedule to this Contract); and
  2. Experiment Data.

The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data.

ChaosIQ shall follow its archiving procedures for Customer Data and Experiment Data as set out in its Back-Up Policy which is available on request, as such document may be amended by ChaosIQ in its sole discretion from time to time. In the event of any loss or damage to Customer Data or Experiment Data, the Customer's sole and exclusive remedy against ChaosIQ shall be for ChaosIQ to use reasonable commercial endeavours to restore the lost or damaged Customer Data or Experiment Data from the latest back-up of such Customer Data or Experiment Data maintained by ChaosIQ in accordance with the archiving procedure described in its Back-Up Policy. ChaosIQ shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data or Experiment Data caused by any third party (except those third parties sub-contracted by ChaosIQ to perform services related to Customer Data or Experiment Data maintenance and back-up).

By entering into this Contract the Customer grants ChaosIQ a royalty-free, non-exclusive, perpetual, irrevocable, worldwide, transferrable and sub-licensable licence to use the Customer Data which is not Personal Data and the Experiment Data:

  1. to perform ChaosIQ’s obligations under this Contract;
  2. to further develop the ChaosIQ Product and the Software;
  3. to create Derivative Data (which shall be owned by ChaosIQ);
  4. to use the Customer Data and / or Experiment Data for the following purposes:
    1. to include the Experiment and the Experiment Data in the Library;
    2. to create indexes of Experiments and to recommend Experiments to certain industry sectors; and
    3. to make the Experiment and the Experiment Data available to other members of the Community.

Both Parties will comply with all applicable requirements of the Data Protection Legislation (as defined in the Schedule to this Contract). This clause 9.5 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Data Protection Legislation.

The parties shall comply with their obligations set out in the Schedule to this Contract.

Third party software

The Customer shall at all times fully comply with the terms and conditions applicable to:

  1. the Chaos Toolkit; and
  2. all third-party software which is part of, or is used by the Customer in connection with, the ChaosIQ Product.

The Customer acknowledges and agrees that if the Customer fails to comply with clause 10.1, the Customer may not be able to make use of the Chaos Toolkit, the ChaosIQ Product and / or the ChaosIQ Services (in whole or in part) and, in those circumstances, the Customer shall remain liable to pay the Charges to ChaosIQ in accordance with this Contract.

Third party providers

The Customer acknowledges that the ChaosIQ Product 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. ChaosIQ 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 ChaosIQ. ChaosIQ 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. ChaosIQ does not endorse or approve any third-party website nor the content of any of the third-party website made available via the ChaosIQ Product.

ChaosIQ's obligations

ChaosIQ undertakes that:

  1. the ChaosIQ Product will perform substantially in accordance with the Documentation; and
  2. the ChaosIQ Services will be performed with reasonable skill and care.

The undertaking at clause 12.1 shall not apply to the extent of any non-conformance which is caused by use of the ChaosIQ Product contrary to ChaosIQ's instructions, or modification or alteration of the ChaosIQ Product by any party other than ChaosIQ or ChaosIQ's duly authorised contractors or agents, or the Customer’s failure to promptly install any update, upgrade, new version or new release of the Software released by ChaosIQ, or any other non-conformance caused by the Customer’s acts or omissions. If the ChaosIQ Product does not conform with the foregoing undertaking, ChaosIQ 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 12.1. Notwithstanding the foregoing, ChaosIQ:

  1. does not warrant that the Customer's use of the ChaosIQ Product will be uninterrupted or error-free; or that the ChaosIQ Product and/or the information obtained by the Customer through the ChaosIQ Product will meet the Customer's requirements; and
  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 ChaosIQ Product may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

This Contract shall not prevent ChaosIQ 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 Contract.

ChaosIQ warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Contract.

Customer's obligations

The Customer shall:

  1. provide ChaosIQ with:
    1. full co-operation and assistance in relation to this Contract; and
    2. access to all information and data as may be reasonably required by ChaosIQ,
    in order for ChaosIQ to perform its obligations under this Contract;
  2. allow ChaosIQ access to the Customer’s premises and Customer System as reasonably required by ChaosIQ to perform the ChaosIQ Services;
  3. without affecting its other obligations under this Contract, comply with all applicable laws and regulations with respect to its activities under this Contract;
  4. carry out all the Customer’s responsibilities set out in this Contract in a timely and efficient manner. In the event of any delays by the Customer, ChaosIQ may adjust any agreed timetable or delivery schedule as reasonably necessary;
  5. ensure that the Authorised Users use the ChaosIQ Product, the Documentation and the ChaosIQ Services in accordance with this Contract and shall be responsible for any Authorised User's breach of this Contract;
  6. ensure that the Customer System complies with the relevant specifications provided by ChaosIQ from time to time; and
  7. be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from the Customer System to ChaosIQ's data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer System or telecommunications links or caused by the internet.

Whilst ChaosIQ may provide the Customer with advice, recommendations and other services related to the Experiments, the Customer agrees that:

  1. it is the Customer’s sole responsibility to select, create and run the most appropriate Experiments based on the Customer’s detailed understanding of the Customer’s business and the Customer System; and
  2. ChaosIQ shall not be responsible for, and shall have no liability to the Customer for, the selection, creation or running of the Experiments by the Customer.

The Customer warrants and represents on an ongoing basis that:

  1. all software code, materials and other items created by the Customer in connection with the Customer’s use of the ChaosIQ Product are the Customer’s original work, have not been copied (wholly or substantially) from any other source, and that the Customer’s (or any other person’s) use of them will not infringe the Intellectual Property Rights of any third party; and
  2. the use of any software code, materials or other items used, provided or made available by the Customer in connection with the ChaosIQ Product or the ChaosIQ Services will not infringe the Intellectual Property Rights of any third party.

The Customer shall indemnify ChaosIQ for all claims, costs, damage and expenses (including reasonable legal expenses) incurred by ChaosIQ as a result of the Customer’s breach of clause 13.3.

Use of experiments in live environment

The Customer acknowledges that:

  1. the Experiments can cause serious damage to the Customer System and the Customer’s business (including IT system and software failures and outages) so they must be used in a Sandbox Environment and must not be used in a Live Environment; and
  2. if the Customer uses the Experiments in a Live Environment in breach of clause 14.1.1, the Customer does so entirely at its own risk and ChaosIQ shall have no liability to the Customer as a result of the Customer’s use of the Experiment in a Live Environment.

Charges and payment

The Customer shall pay ChaosIQ the Charges set out in the Order Form (or, if not set out there, ChaosIQ’s standard charges for the ChaosIQ Product and the ChaosIQ Services).

ChaosIQ shall invoice the Customer for the Charges at the frequency set out in the Order Form (or, if not set out there, monthly in advance) and the Customer shall pay ChaosIQ the Charges within 14 days of the date of the invoice.

If ChaosIQ has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies available to ChaosIQ, ChaosIQ may:

  1. disable the Customer's password, account and access to all or part of the ChaosIQ Product and ChaosIQ shall be under no obligation to provide any or all of the ChaosIQ Product while the invoice(s) concerned remain unpaid;
  2. require the Customer and the Authorised Users to stop accessing and using all or part of the ChaosIQ Product (and the Customer shall immediately comply, and shall ensure the Authorised Users immediately comply, with the requirement);
  3. suspend performance of the ChaosIQ Services; and
  4. charge the Customer interest on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

All amounts due under this Contract:

  1. shall be payable in pounds sterling;
  2. are non-cancellable and non-refundable; and
  3. are exclusive of value added tax, which shall be added to ChaosIQ's invoice(s) at the appropriate rate.

ChaosIQ shall be entitled to increase the Charges at the start of each Renewal Period upon at least 120 days' prior written notice to the Customer.

Proprietary rights

The Customer acknowledges and agrees that ChaosIQ and/or its licensors own all Intellectual Property Rights in the ChaosIQ Product, the ChaosIQ Services, the Software and the Documentation. Except as expressly stated herein, this Contract 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 ChaosIQ Product, the ChaosIQ Services, the Software or the Documentation.

ChaosIQ confirms that it has all the rights in relation to the ChaosIQ Product, the ChaosIQ Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Contract.

Confidentiality

Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Contract. A Party's Confidential Information shall not be deemed to include information that:

  1. is or becomes publicly known other than through any act or omission of the receiving Party;
  2. was in the receiving Party's lawful possession before the disclosure without an obligation of confidentiality;
  3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
  4. is independently developed by the receiving Party, which independent development can be shown by written evidence.

Subject to clause 17.4, each Party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation and operation of this Contract.

Each Party shall ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees, consultants or agents in violation of the terms of this Contract.

A Party may disclose the other’s Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.

The Customer acknowledges that details of the ChaosIQ Product, the ChaosIQ Services, the Software, the Documentation and the Charges are all part of ChaosIQ's Confidential Information.

The Customer acknowledges that notwithstanding this clause 17:

  1. the Customer Data which is not Personal Data (as defined in the Schedule to this Contract);
  2. the details of the Customer’s Experiments; and
  3. the Experiment Data,
  4. may be used and made available by ChaosIQ for the purposes set out in clause 9.4.

Indemnity

ChaosIQ shall indemnify the Customer for and against any claim that the ChaosIQ Product infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, provided that:

  1. ChaosIQ is given prompt notice of any such claim;
  2. the Customer provides reasonable co-operation to ChaosIQ in the defence and settlement of such claim, at ChaosIQ's reasonable expense; and
  3. ChaosIQ is given sole authority to defend or settle the claim.

In the defence or settlement of any claim, ChaosIQ may procure the right for the Customer to continue using the ChaosIQ Product, replace or modify the ChaosIQ Product so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Contract on 2 Business Days' notice to the Customer without any additional liability or obligation to pay damages or other costs to the Customer.

In no event shall ChaosIQ, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

  1. a modification of the ChaosIQ Product by anyone other than ChaosIQ; or
  2. the Customer's use of the ChaosIQ Product in a manner contrary to the instructions given to the Customer by ChaosIQ; or
  3. the Customer's use of the ChaosIQ Product after notice of the alleged or actual infringement from ChaosIQ or any appropriate authority.

This clause 18 states the Customer's sole and exclusive rights and remedies, and ChaosIQ's (including ChaosIQ's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

Limitation of liability

Except as expressly set out in this Contract:

  1. the Customer acknowledges that the Experiments in the Library have been provided by other members of the Community and ChaosIQ shall have no liability or responsibility for those Experiments;
  2. the Customer assumes sole responsibility for the results obtained from the Customer’s use of the ChaosIQ Product, the ChaosIQ Services, the Experiments and the Experiment Data and for all conclusions drawn, and actions taken, from the same;
  3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract; and
  4. the ChaosIQ Product has not been specifically developed for the Customer and is provided to the Customer on an "as is" basis.

Nothing in this Contract limits or excludes the liability of either Party:

  1. for death or personal injury caused by its’ negligence;
  2. for fraud or fraudulent misrepresentation; or
  3. for any other liability which cannot be limited or excluded under applicable law.

Subject to clause 19.2:

  1. ChaosIQ shall not be liable, whether in contract (including under any indemnity), tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with this Contract, for any:
    1. loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss (whether direct, special, indirect or consequential); or
    2. special, indirect or consequential loss, costs, damages, charges or expenses.
  2. ChaosIQ’s total aggregate liability in contract (including under any indemnity), tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with this Contract, shall be limited to £100,000 (one hundred thousand pounds).

Term and termination

This Contract shall commence on the Commencement Date.

This Contract shall continue for the Initial Subscription Term and, thereafter, this Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless either Party notifies the other Party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period in which case this Contract shall terminate at the end of the Initial Subscription Term or the relevant Renewal Period (as applicable).

Either Party may terminate this Contract with immediate effect by giving written notice to the other Party if:

  1. the other Party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
  2. the other Party commits a material breach of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
  3. the other Party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
  4. the other Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

On termination of this Contract for any reason:

  1. the Customer’s licence to use the ChaosIQ Product shall immediately terminate and the Customer shall immediately cease all use of the ChaosIQ Product and the Documentation;
  2. the licences granted to ChaosIQ under clause 9.4 shall continue to apply without limit in time;
  3. ChaosIQ shall retain all Derivative Data for its own commercial purposes;
  4. any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced; and
  5. clauses which expressly or impliedly survive the expiry or termination of this Contract shall continue in full force and effect including clauses 35.3, 9, 11, 13.2, 13.3, 13.4, 14, 16.1, 17, 19, 21 and the Schedule to this Contract.

General

Except for the non-payment of any sums due under this Contract, neither Party shall be liable to other Party under this Contract if it is prevented from or delayed in performing its obligations under this Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control.

Any notice required to be given under this Contract shall be in writing and shall be delivered:

  1. by hand or first-class post to the other Party at its address set out in the Order Form or to its registered office or main trading address; or
  2. by email to the work email address of a director of the other Party.

A notice delivered by hand shall be deemed to have been received when delivered (or, if delivery is not in between Normal Business Hours, at 9am on the first Business Day following delivery). A notice sent by first-class post shall be deemed to have been received 3 Business Days after posting. A notice sent by email shall be deemed received on the next Business Day after it is sent provided a “failed transmission” or “out of office” notification is not received.

No variation of this Contract shall be effective unless it is in writing, on paper, headed “contract variation”, and signed by a director of each Party.

No failure or delay by a Party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy.

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 and formation. Each Party acknowledges that in entering into this Contract it does not rely on, and 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.

The Customer shall not, without the prior written consent of ChaosIQ, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract. ChaosIQ may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract.

This Contract does not confer any rights on any third party whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws 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 arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

Schedule: Data Protection

Definitions

The following definitions shall apply in this Schedule in addition to the definitions set out at clause 1 of the main body of this Contract.
“Data Protection Legislation” means all applicable laws relating to the processing of Personal Data including the General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) and the Data Protection Act 2018.
“Controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures” as defined in the Data Protection Legislation.

Data Protection

The parties acknowledge that for the purposes of the Data Protection Legislation:

  1. the parties are independent controllers of all Personal Data received by ChaosIQ in connection with the setting up, administration and management of the Authorised User’s accounts for the ChaosIQ Product; and
  2. the Customer is the controller and ChaosIQ is the processor of all Personal Data processed through the ChaosIQ Product in connection with the Experiments. The Annex to this Schedule sets out the scope, nature and purpose of processing by ChaosIQ, the duration of the processing and the types of personal data and categories of data subject.

The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to ChaosIQ for the duration and purposes of this Contract.

ChaosIQ shall, in relation to any personal data processed on behalf of the Customer:

  1. process that personal data only on the documented written instructions of the Customer unless ChaosIQ is required by applicable laws to otherwise process that personal data. Where ChaosIQ is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, ChaosIQ shall promptly notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit ChaosIQ from so notifying the Customer;
  2. 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);
  3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
  4. not transfer any personal data outside of the United Kingdom or the European Economic Area unless the following conditions are fulfilled:
    1. appropriate safeguards are provided in relation to the transfer;
    2. the data subject has enforceable rights and effective legal remedies;
    3. ChaosIQ complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
    4. ChaosIQ complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data.
  5. 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;
  6. notify the Customer without undue delay on becoming aware of a personal data breach;
  7. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by applicable law to store the personal data; and
  8. allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of ChaosIQ, an instruction infringes the Data Protection Legislation.

The Customer consents to ChaosIQ appointing third-party processors. ChaosIQ shall inform the Customer of any changes to the third-party processors so the Customer has a reasonable opportunity to object to the change. ChaosIQ shall enter into a written agreement with the third-party processor incorporating terms which are substantially similar to those set out in this Schedule. As between the Customer and ChaosIQ, ChaosIQ shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this paragraph.

Annex

CategoryDescription
The scope and purpose of the processingTHE PROCESSING OF PERSONAL DATA IN CONNECTION WITH THE DELIVERY OF CHAOS ENGINEERING SOFTWARE AND SERVICES TO THE CUSTOMER.
The nature of the processingTHE NATURE OF THE PROCESSING WILL INCLUDE THE TRANSMISSION, RECEIPT, STORAGE, USE, VIEWING AND DELETION OF THE PERSONAL DATA.
The duration of the processingTHE DATA WILL BE RETAINED FOR THE PERIOD NEEDED TO FULFIL THE CONTRACT AND FOR A SHORT PERIOD AFTERWARDS TO ALLOW IT TO BE RETURNED OR DELETED.
The types of personal dataTHE PERSONAL DATA WILL BE THE NAMES, EMAILS ADDRESSES, TELEPHONE NUMBERS OF THE AUTHORISED USERS AND OF OTHER DATA SUBJECTS WHOSE DATA IS DISCLOSED TO CHAOSIQ IN CONNECTION WITH THE CUSTOMER’S USE OF THE CHAOSIQ PRODUCT AND / OR THE RUNNING OF EXPERIMENTS.
Categories of data subjectAUTHORISED USERS, THE CUSTOMER’S OTHER STAFF WHOSE DATA IS PROCESSED IN CONNECTION WITH THE CUSTOMER’S USE OF THE CHAOSIQ PRODUCT AND / OR THE RUNNING OF EXPERIMENTS, AND POSSIBLY THE CUSTOMER’S END-CLIENT’S STAFF WHOSE DATA IS PROCESSED IN CONNECTION WITH THE CUSTOMER’S USE OF THE CHAOSIQ PRODUCT AND / OR THE RUNNING OF EXPERIMENTS.