Terms of Service

Terms of Business – Tweepforce Limited

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:

  • apply to and be incorporated in the Contract; and
  • prevail over any inconsistent terms or conditions contained in, or referred to inany purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing

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:

  • co-operate with the Supplier in all matters relating to the Contract and appoint one person to represent the Customer, who shall have the authority to contractually bind the Customer
  • provide in a timely manner such access to the Customer's data, as is requested by the Supplier; and
  • provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects.

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.


5.5   The Customer shall comply with the Supplier’sterms of use(http://www.tweepforce.co/terms) of its website, the terms of which are hereby incorporated by this reference, and such other policies as may be incorporated in them. In the event of a conflict between these terms and conditions and the terms of use and any of the other agreements or policies incorporated in them, these terms and conditions shall prevail, but only to the extent of the conflict.

5.6   Any Customer equipment must be:

  • technically compatible with the Service and not harm the Supplier’s or a Third Party Supplier’s systems; and
  • connected and used in line with any relevant instructions, standards or laws.

5.7   The Customer shall not transmit any material through the Services that, in any jurisdiction:

  • is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
  • facilitates illegal activity;
  • depicts sexually explicit images; and/or
  • promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender reassignment, or any other illegal activities.
 

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:


  • the likely time required to implement the change;
  • any variations to the Supplier's charges arising from any change to the Subscription Plan; and
  • any other impact of the change on the terms of the Contract.

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:

  • modify the Supplier's system, its network, system configurations or routing configuration; or
  • modify or replace any Hardware or Software or other equipment used to deliver any Service,

provided that this has no adverse effect on the Supplier's obligations under the Contract and its provision of the Services.

 

7. Customer Data

7.1   Any information that the Customer provides is subject to the Supplier’s privacy policy,(http://www.tweepforce.co) which governs its collection and use of Customer Data. By using the Services the Supplier consents to the collection and use (as set out in the privacy policy) of this information and Customer Data. As part of providing the Customerwith the Services, we may need to provide it with certain other communications, such as service announcements and administrative messages. These communications are considered part of the Services andthe Customer may not therefore opt-out of receiving them.


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:

  • save in respect of Customer Data collected from publically available user data APIs outside of the Twitter™ applicationit shall process the Customer Data only to the extent, and in such a manner, as is reasonably necessary to supply the Services or as is required by any applicable law;
  • in respect of Customer Data, which is in the possession or under the control of the Supplier, it shall implement the technical and organisational measures to protect this Customer Data against unauthorised or unlawful processing and accidental loss, destruction, alteration or disclosure;
  • it shall not publish, disclose or divulge any Customer Data to any third party, nor allow any third party to process Customer Data unless necessary for the provision of the Services;
  • it shall not transfer Customer Data outside the European Economic Area without the prior written consent of the Customer; and
  • it shall use reasonable endeavours (at the Customer’s expense) to assist the Customer with any subject access request that the Customer receives relating to Customer Data processed by the Supplier under this Agreement.

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:

  • Fees for the relevant Subscription Plan are invoiced monthly in advance at the commencement of the Contract;and
  • a proportion (typically 50%) of any consultancy Services will be invoiced in advance of such work commencing and thereafter will be invoiced on a time and materials basis for each day of consultancy performed (or part thereof).

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:

  • the cost of any ancillary expenses reasonably incurred by the Supplier in connection with the Services(e.g. travel, hotel, subsistence, cancellation) which shall be paid by the Customer at the Supplier’s then current rates; and
  • VAT, which the Supplier shall add to its invoices at the appropriate rate.

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:

  • charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
  • suspend all Services until payment has been made in full.

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:

  • promptly on becoming aware of the same, notifies the Supplier of any such claim in writing;
  • gives the Supplier sole control of any such action or proceedings;
  • fully co-operates with the Supplier and provides such assistance as it may reasonably require to settle and/or defend such action or proceedings; and
  • any award of costs and/or damages shall belong to the Supplier.

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:

  • the use of the Service which does not comply with the uses permitted under this Agreement; or
  • the combination of the Service with any third party product and/or service or modification undertaken by the Customer without the prior written consent of the Supplier.
 

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:

  • any breach of the Contract howsoever arising;
  • any use made by the Customer of the Services, the Deliverables or any part of them;
  • any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract; and
  • any act of force majeure pursuant to clause 13 below.

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:

  • for death or personal injury caused by the Supplier's negligence; or
  • for fraud or fraudulent misrepresentation.

11.4   Subject to condition 11.2 and condition 11.3:

  • the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
    • loss of profits; or
    • loss of business; or
    • depletion of goodwill or similar losses; or
    • loss of anticipated savings; or
    • loss of goods; or
    • loss of contract; or
    • loss of use; or
    • loss or corruption of data or information; or
    • any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
  • the Supplier's total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.

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:

  • the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
  • an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
  • an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph
  • of Schedule B1 to the Insolvency Act 1986); or
  • a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
  • the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
  • the other party ceases, or threatens to cease, to trade; or
  • there is a change of control (as defined in section 1124 of the Corporation Tax Act 2010) of the other party; or
  • the other party takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt.

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. Waiver

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. Severance

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. Assignment

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. Notices

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).