6 Aphelion Way,Reading, Berkshire, RG2 9FR, VAT No. 2099044893 Co. Reg. No. 8864127
(trading as TweepForce™)
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
|Contract||the Customer's offer to purchase Service contained in the Subscription Plan and the Supplier's acceptance of it under condition 3.|
|Customer||the person, firm or company who purchases Services from the Supplier.|
|Customer Data||any information that is provided either by the Customer or third party customers of the Customerto the Supplier or collected by the Supplier from both application programming interfaces (APIs)used as part of the Customer's use of the Services and publically available user data APIs outside of the Twitter™ application, including any information derived from such information.|
|DPA||the Data Protection Act 1998.|
|Deliverables||all products and materials developed by the Supplier in relation to the Contract in any media, including, without limitation, computer programs, data, reports and specifications.|
|Fees||the charges specified on the Subscription Plan payable by the Customer for the provision of the Services.|
|Good Industry Practice||the standards that fall within the upper quartile of a skilled and experienced provider of services similar or identical to the Services, having regard to factors such as the nature and size of the parties, the term, the pricing structure and any other relevant factors.|
|Intellectual Property Rights||patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, source code, database rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.|
|Pre-existing Materials||materials (in whatever format) which existed before the commencement of the Contract.|
|Services||the services of automatic interaction, reward, promotion and transaction in each case via Twitter™, to be provided pursuant to the Subscription Plan, by the Supplier under the Contract.|
|Software||any software used by the Supplier to provide the Services to the Customer whether owned by a third party, by the Customer or by the Supplier.|
|Subscription Plan||the detailed plan describing the level of the Customer’s chosen subscription and the Supplier’s responsibilities for the provision of the Services in accordance with the Contract|
|Supplier||Tweepforce Limited (trading as @TweepForce) incorporated in England & Wales with company number 05059953 and whose registered office is at 6 Aphelion Way, Shinfield, Reading, Berkshire RG2 9FR.|
|VAT||value added tax chargeable under English law for the time being and any similar additional tax.|
|Virus||without limitation, any malicious code, trojans, worms and viruses, lock, authorisation key or similar device that impairs or could impair the operation of the Software and or the Services.|
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes e-mail.
1.9 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
2. Application of conditions
2.1 These conditions shall:
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
3. Effect of order>
The Customer's order constitutes an offer by the Customer to purchase the Services specified in the chosen Subscription Plan on these conditions; accordingly, the acceptance of the order by the Supplier, or the Supplier's commencement or execution of work pursuant to the Customer’s order, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in any correspondence shall not govern the Contract.
4. Supplier's obligations
4.1 On the Supplier’s acceptance of the Customer’s order and subject to these terms and conditions, the Supplier grants the Customer, during term of this Contract, the non-transferable, non-exclusive, worldwide right to use the Services solely for the Customer’s own internal business operations.
4.2 The Supplier warrants that the Services will be performed with all reasonable skill and care and in accordance with Good Industry Practice.
4.3 The Supplier shall ensure that the Supplier's system is designed, maintained and upgraded at all times, so as to minimise the risk of attack by Viruses.
4.4 The Supplier shall use reasonable endeavours to manage the Services and to deliver the Deliverables to the Customer, in accordance in all material respects with the Subscription Plan.
4.5 The Supplier shall use reasonable endeavours to meet any performance dates specified in the Subscription Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
5. Customer's obligationsand indemnification
5.1 The Customer shall:
5.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer's agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.3 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier.
5.4 Any consent given by the Supplier in accordance with condition 5.3 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
5.6 Any Customer equipment must be:
5.7 The Customer shall not transmit any material through the Services that, in any jurisdiction:
6. Change control
6.1 If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
6.2 If either party requests a change to the scope of the Services, the Supplier shall, within a reasonable time, provide to the Customer:
6.3 If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
6.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Subscription Plan and any other relevant terms of the Contract to take account of the change.
6.5 The Supplier reserves the right to:
provided that this has no adverse effect on the Supplier's obligations under the Contract and its provision of the Services.
7. Customer Data
7.2 With regard to Customer Data that is publically available user data APIs outside of the Twitter™ application, the Customer acknowledges that the Supplier may repackage and sell such Customer Data to third parties unless the Customer requests in writing that the Supplier does not do so, in which case the Customer shall be deemed to have requested the grant of exclusivity in respect of its particular Subscription Plan Service and an additional Fee will become due and payable, which Fee will be invoiced to the Customer at the time of making such request.
7.3 The Supplier shall promptly notify the Customer in writing of any loss or damage to the Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data. The Supplier shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of Customer Data.
7.4 Each party warrants that it shall comply with the DPA during the provision of the Services.
7.5 The Customer shall be the “Data Controller” as defined in the DPA, and the parties hereby acknowledge that the Supplier will be acting as “Data Processor”as defined in the DPA, in respect of all data processing activities in relation to Customer Data that the Supplier carries out under the Contract.
7.6 The Customer acknowledges that the technical processing and storage of Customer Data is fundamental to the provision of the service. The Customer expressly consents to the Supplier’s storage of Customer Data and the back-up of that data onto various media in order to ensure the availability and integrity of the Service. In consideration of the provision of the Services, the Customer grants the Supplier a limited non-exclusive non-transferable license to copy, store, record, transmit, maintain, display, view, print or otherwise use Customer Data to the extent necessary to provide the Services to the Customer. The Customer agrees that the licence to store and maintain Customer Data shall survive the termination of this Agreement for a maximum of 180 days.
7.7 The Supplier undertakes to the Customer that:
7.8 The Customer acknowledges that the technical processing of the Customer's signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service (“Electronic Communications”) is fundamentally necessary for the Customer's use of the Service. The Customer expressly consents to the Supplier’s interception and storage of Electronic Communications and Customer Data and the Customer acknowledges and understands that Customer's Electronic Communications will involve transmission over the internet, and over various public and private networks, only part of which may be owned and/or operated by the Supplier. The Customer acknowledges that Electronic Communications may be accessed by unauthorised parties when communicated over the internet, network communication facilities, telephone or other electronic means. The Customer agrees that the Supplier shall not be responsible for any Electronic Communications and/or Customer Data which is delayed, lost, altered, intercepted or stored during its transmission across networks not owned and/or operated by the Supplier, including, but not limited to, the internet and Customer's local network.
8. Charges and payment
8.1 The Fees applicable to this Contract shall be the amount set against the relevant Service selected by the Customer in the Subscription Plan.
8.2 Unless agreed otherwise in writing all Fees shall be invoiced as follows:
8.3 Unless otherwise agreed in writing all Fees for the relevant Subscription Plan are payable to the Supplier by direct debit in advance..
8.4 The Subscription Plan excludes:
8.5 The Customer shall pay each invoice submitted to it by the Supplier in full on receipt.
8.6 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier, the Supplier may:
8.7 Time for payment shall be of the essence of the Contract.
8.8 All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
8.9 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
9. Intellectual Property Rights
9.1 All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. The Supplier hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If the Supplier terminates the Contract under condition 12, this licence will automatically terminate.
9.2 The Customer acknowledges that the Customer's use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
9.3 In the event that the Service infringes any third party intellectual property rights, the Supplier will defend and/or settle any third party claim, provided that the Customer:
9.4 In the event that the Service infringes any third party intellectual property rights, the Supplier shall, at its option, either make the Service available without such infringement or terminate the Services with written notice to the Customer and refund any pre-paid amounts.
9.5 The provisions of Clause 9 above shall not apply to any infringement resulting from:
10. Confidentiality and Supplier's property
10.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
10.2 This condition 10 shall survive termination of the Contract, however arising.
11. Limitation of liability
11.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these conditions excludes the liability of the Supplier:
11.4 Subject to condition 11.2 and condition 11.3:
12. Term and Termination
12.1 Once accepted by the Supplier, the Customer shall be bound to take the Services pursuant to the relevant Subscription Plan for a minimum period of 12 months and thereafter the Contract shall continue on a rolling monthly basis until either the Customer terminates the provision of the Services by giving one month’s written notice to the Supplier, or the Supplier terminates the Contract in accordance with these conditions.
12.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
12.3 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.
13. Force majeure
The Supplier shall not in any circumstances have any liability whatsoever to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or suspension, deactivation or blockage of any API access or any Twitter™ accounts by or other default of suppliers or sub-contractors.
14.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
14.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.1 If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16. Entire agreement
16.1 Each of the parties acknowledges and agrees that in entering into the Contract, it does not rely on any statement, representation (whether innocent or negligent), assurance or warranty (“Representation”) (whether in writing or not) of any person (whether party to this Agreement or not) other than as expressly set out in the Contract.
16.2 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as provided in the Contract.
16.3 Nothing in this clause shall limit or exclude any liability for fraud.
17.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18. No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
19. Third party rights
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
20.1 Any notice under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party (in the case of the Customer – as provided by it) and in the case of the Supplier at the address given in this Contract.
20.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
21. Governing law and jurisdiction
21.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
21.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including without limitation non-contractual disputes or claims).