These terms and conditions ("Terms") apply to the Subscriber Form. The Subscriber Form takes precedence over these Terms.
Together with the Subscriber Form, these Terms form the entire agreement between LOCOWISE LIMITED incorporated in England and Wales with company number 08481686 and registered office address of Chargrove House Main Road, Shurdington, Cheltenham, England, GL51 4GA ("Locowise", "us", "our" or "we") and the customer detailed on the Subscriber Form ("you") for the subscription and use of our Services and Platform (the "Agreement").
If you would like to contact us then you can do so by email at: email@example.com. or at our physical trading address: Chargrove House Main Road, Shurdington, Cheltenham, England, GL51 4GA.
1.1 This Agreement shall commence on the Commencement Date and shall continue for the Subscription Period.
1.2 The Subscription Period shall automatically renew for additional subscription periods of the same duration unless otherwise terminated in accordance with clause 11.
1.3 Any renewals of the Subscription Period shall be subject to the same terms and conditions and price at the date of the renewal.
2.1 Your subscriber status will be as set out in the package selected, and subject to full payment of the Subscription Fee we will provide you with access to the Platform based on this Agreement.
3.1 Subject to payment of the Subscription Fees, we will:
(a) grant you access to use the Platform pursuant to your subscriber status for the Subscription Period, or until termination of the Agreement in accordance with these Terms;
(b) use commercially reasonable endeavours to make the Platform available 24 hours a day, 7 days a week except for:
(i) planned downtime which Locowise will use their reasonable endeavours to give notice of a week in advance (Locowise will aim to carry out such downtime at a time that we consider will cause minimal interruption to a majority of your business);
(ii) emergency downtime for urgent fixes; or
(iii) any unavailability caused by circumstances beyond our reasonable control; and
(c) maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Content.
3.2 We reserve the right to modify the Platform, including the technical infrastructure on which the Platform operates, to introduce new and modify existing functionality and improvements. We reserve the right to charge additional fees for new features that are introduced on the Platform (and you are not required to sign up for new features).
3.3 Notwithstanding anything to the contrary, we reserve the right to suspend access to, amend, remove and/ or delete any content, reports, data, Subscriber Content on the Platform:
(a) where a third party alleges infringement of its intellectual property rights, or privacy or other personal rights;
(b) where we are subject to a court order requiring its removal;
(c) where your use of the Platform is contrary to your applicable local laws; or
(d) where it is contrary to our internal policies.
4.1 You will:
(a) cooperate fully and act in good faith in all matters relating to the Agreement, including providing us access to your main points of contact;
(b) in using the Platform, not transmit nor store any data or information that is:
(i) unlawful, harmful, threatening, defamatory, obscene;
(ii) facilitates illegal activity;
(iii) infringes any third-party intellectual property or other personal or privacy rights.
(c) keep your Platform account password and login details secure;
(d) use commercially reasonable efforts to prevent unauthorised access to or use of the Platform and notify Locowise promptly of any such unauthorised access or use;
(e) use the Platform according to any allocated logins and not share use of the Platform with any other persons; and
(f) use the Platform in accordance with this Agreement and comply with all applicable local laws and regulations with respect to your activities under this Agreement and your use of the Platform.
4.2 You may use the Platform as you deem necessary, but you are responsible for your own use and actions or omissions based on the reports generated by the Platform.
4.3 You are responsible for ensuring that your employees, contractors, team members, customers and any other persons who use the Platform under your account details do so in accordance with the terms of this Agreement and your own internal policies.
4.4 You may not resell or relicense the access to or rights to use our Platform, whether directly or indirectly to any third parties. You may not use the Platform to generate reports which you intend to sell or make available publicly as standalone or bundled with any other products.
4.5 It is your responsibility to ensure that any personal data you obtained through the social media platform data connections is obtained and used by you in accordance with all applicable data protection laws and the social media platform rules on data use.
5.1 You shall pay the Subscription Fee as per the package selected. All sums payable under this Agreement:
(a) are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question where applicable; and
(b) shall be paid in full without any set off or deductions (including deductions in respect of items such as income, corporation, or other taxes, charges, bank fees and/or duties).
5.2 In the event of an invoiced amount not being paid in accordance with clause 5, we reserve the right to charge interest in accordance with the Late Payment of Commercial Debt (Interest) Act 1998.
5.3 Notwithstanding our other rights or remedies under this Agreement, for any overdue sums not paid within seven (7) days from receipt of a valid invoice, we may suspend the Services until such amounts are paid in full.
6.1 We and our licensors retain the Intellectual Property Rights in the Platform (including in the automated reports, report templates, images etc) and except as expressly set out in this Agreement, all our rights in the Platform are reserved in full. The copyright in the automated reports, templates, images, and files generated as part of the Services remains vested in Locowise and we reserve all our rights therein.
6.2 Subject to full payment of the Subscription Fees, we give you a limited licence to use the reports generated by your use of the Platform for your own commercial purposes, subject to the restrictions set out in this Agreement.
6.3 You may not (except as permitted by law) reverse-engineer, decompile, disassemble or create derivative works based on our Platform or any data generated by the reports.
6.4 We do not take ownership of any Subscriber Content. You grant us a worldwide, royalty-free, limited-term licence to host, copy, use, transmit and display any content you provide us as is required for us to provide the Platform and Services under this Agreement.
7.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party or of any member of the group of companies to which the other party belongs to, except as permitted by clause 7.2.
7.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 7; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, including for the purposes of:
(i) reporting a suspected criminal offence to the police or any law enforcement agency;
(ii) cooperating with the police or any law enforcement agency regarding a criminal investigation or prosecution; or
(iii) doing or saying anything required by HMRC, a regulator, ombudsman or supervisory authority.
7.3 No party shall use any other party's Confidential Information for any purpose other than to perform its obligations under this Agreement.
7.4 All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by one party to the other party shall be returned promptly to the original party that disclosed on termination of this Agreement, and no copies shall be kept, whether digitally or otherwise.
7.5 We reserve the right, with your prior written approval, to announce the fact that you are using our Platform in our marketing materials and on the Locowise website.
8.1 If you provide any Personal Data to us for processing, including personal data which is accessed from the social media platforms as part of your use of the Platform, as part of your use of our Platform, you will ensure that you are entitled to do so and that we may lawfully process that Personal Data on your behalf, as envisaged under this Agreement. Should you breach this obligation then you shall be fully liable to us for any costs, losses, damages, expenses and reasonable legal fees incurred or suffered by us and arising from the breach.
8.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove, or replace, a party's obligations under the Data Protection Legislation.
8.3 The parties acknowledge that for the purposes of the Data Protection Legislation, you are joint Data Controller, and we are the Data Processor in relation to your Personal Data provided to us for processing as part of the Services under this Agreement. Our Platform and its content are hosted by us on third party servers.
8.4 You are responsible in obtaining and using the Personal Data in accordance with all Data Protection Legislation and the terms and conditions of the platforms from which the data is pulled from.
8.6 Without prejudice to the generality of clause 8.2:
(a) you will ensure that you have all necessary appropriate consents and notices in place and/or a lawful basis to enable lawful transfer of the Personal Data to us for the duration and purposes of this Agreement; and
(b) we shall, in relation to any Personal Data processed in connection with our performance of our obligations under this Agreement:
(i) process that Personal Data only on your documented written instructions unless processing is required by any law to which we are subject, in which case we shall, to the extent permitted by law, inform you of that legal requirement before performing the relevant processing;
(ii) ensure that we have in place appropriate technical and organisational measures, reviewed and approved by you, which are designed 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);
(iii) ensure that all our personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(iv) not transfer any Personal Data outside of the UK unless our and your obligations under the Data Protection Legislation are complied with;
(c) assist you, at your 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;
(d) notify you without undue delay on becoming aware of a Personal Data breach;
(e) at the written direction of you, delete or return Personal Data and copies thereof to you on termination of the Agreement unless required by applicable law to store the Personal Data;
(f) submit to audits and inspections in relation to the processing, and provide you with whatever information it needs to ensure that we are both meeting their obligations under article 28 of UK GDPR; and
(g) maintain complete and accurate records and information to demonstrate our compliance with this clause 8.
8.7 You consent to us appointing a third-party processor of Personal Data under this Agreement. We confirm that we will enter a written agreement with the third-party processor incorporating terms which are substantially similar to those set out in clause 8.6.
8.8 You acknowledge that we can create our own aggregate reports and data based on anonymised versions of the Personal Data processed through the Platform.
8.9 Either party may, at any time on not less than 30 days' notice, revise this clause 8 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement) or which may form part of the United Kingdom's divergent laws applying to the processing of personal data after it exits the European Union.
9.1 We warrant that:
(a) we shall supply the Services with reasonable skill and care; and
(b) we have not infringed any third-party copyright in the Services.
9.2 You warrant that:
(a) you have the right to enter into this Agreement;
(b) you have the necessary rights, licences and permissions required for the provision and use of the Platform; and
(c) you will use the Services in accordance with all applicable laws and regulations.
9.3 Notwithstanding anything else in this Agreement, we do not warrant that your use of our Platform shall be uninterrupted or error-free. Interruptions of our Platform shall not serve as the basis to terminate your subscription or demand any full or partial refunds or credits of any prepaid and/or unused Subscription Fees.
9.4 The availability of data which you may access via the Platform is reliant on data connections made available by available third-party social media platforms which enable you to access data from the social media platform (including personal data). These connections are referred to commonly as APIs (Application Programming Interface). APIs which are provided on an "as is" and "as available basis by us and we do not make any guarantee as to their availability during the Subscription Period. In the event that the APIs are unavailable we shall endeavour to introduce a replacement data connection however you acknowledge that we are not responsible for the actions of any social media platform which may prevent or limit the access to data available from their platform. You irrevocably waive any claim against us. with respect to the availability or access to such third party services.
9.5 Except as expressly provided under this clause, neither party makes any warranty or guarantee of any kind whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties to the maximum extent permitted by applicable law.
10.1 We are not responsible for how you use the findings in your reports, and it is your responsibility to interpret and use the findings in your own commercial judgement.
10.2 Nothing in this Agreement shall exclude or limit liability for:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury caused by a party's negligence;
(c) any other liability which cannot be excluded or limited under applicable law.
10.3 Subject to clause 10.2 neither party shall be liable for (whether in action in contract or tort or otherwise) and gives no warranty or representation in respect of any:
(a) indirect, incidental, special or consequential losses or damage;
(b) loss or profits;
(c) loss of business;
(d) loss of revenue;
(e) loss data or use, incurred by you or any third party; or
(f) adaptations or modifications to our reports not made by us.
10.4 Subject to clause 10.2 and 10.3, our aggregate liability to you for any and all loss or damage direct or otherwise and howsoever cause whether in tort, contract or otherwise that is not or cannot be excluded shall not exceed 120% of the Subscription Fees payable to us under this Agreement in any 6 months period of delivery of the Services.
11.1 Without affecting any other right or remedy available to us, we may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) you fail to pay any amount due under this Agreement on the due date for payment and you remain in default not less than 5 days after being notified in writing to make such payment pursuant to clause 5.1;
(b) your use of the Services is in breach of any applicable law; or
(c) you commit a material breach and if such breach is remediable you fail to remedy that breach within a period of fourteen (14) days after being notified in writing to do so.
11.2 Either party may terminate this Agreement for convenience on 30 days written notice, where such notice expires at the end of either the Subscription Period or any extended subscription periods.
11.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) either party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) the other party has an administrator or liquidator appointed; or
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors.
12.1 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim any overdue sums owed to us, which shall become payable immediately upon date of termination, and any damages in respect of any breach of the Agreement which existed at or before the date of termination.
12.2 On termination of this Agreement all licences granted by either party under this Agreement shall cease from the date of termination.
12.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
12.4 On termination of the Agreement for any reason we shall immediately stop your use of the Platform. Provided you have paid the Subscription Fees, you are allowed a period of 10 days ("Period") after termination to access the Platform for the sole purpose of downloading any reports that have already been generated. You may also request that we download any such reports during this Period on your behalf and send them to you, and we reserve the right to charge an additional fee for such request(s). If any reports are not downloaded after the Period, we can delete it.
13.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
13.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14.1 You shall not during the term of this Agreement and the expiry of 12 months after the termination or expiry of the Agreement solicit or entice away from Locowise or employ or attempt to employ any person who is, or has been engaged as an employee, partner, consultant or subcontractor for us in the provision of the Services.
14.2 In the event of any breach of clause 14.1, we shall be entitled to a sum equivalent to 150% of the then current gross annual remuneration of our employee, partner, consultant or subcontractor from you. You acknowledge that our staff and partners are integral to our business and that such sum is a genuine pre-estimate of having to rehire, resource and retrain as a result of a breach of this clause 14.
15.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, subscriber forms, purchase orders and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each party acknowledges that in entering into this Agreement 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 Agreement.
15.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
16.1 No variation of this agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
17.1 We may at any time and without your consent assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of our rights and obligations under this Agreement.
17.2 You shall not without our prior written consent assign, transfer, mortgage or charge or deal in any other manner with any of your rights or obligations under this Agreement.
18.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18.2 No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.1 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
20.1 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
21.1 In the event of any dispute over the performance of the Services, then and prior to commencing any litigation, the parties shall enter into good faith discussions to resolve the dispute. The party alleging non-performance shall provide written details of the basis of its dispute with the other party, and the managing directors or senior representatives of each party shall use their commercial endeavours to resolve the dispute as expeditiously as possible.
22.1 This Agreement 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 law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
The following definitions and rules of interpretation apply in the Agreement:
Commencement Date: the date the Subscriber Form is submitted;
Confidential Information: information (whether or not recorded in documentary form or stored on any magnetic or optical disk or memory) relating to either Locowise's or the Subscriber's business, products, affairs, customers, clients, suppliers, finances or trade secrets including, without limitation, technical data and know-how relating to the business or any business contacts;
Data Protection Legislation: means (i) UK GDPR and any applicable national implementing laws as amended from time to time and (ii) the UK Data Protection Act 2018 (and regulations made thereunder) (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and (iv) all applicable data protection and privacy legislation, guidance, regulatory policy, mandatory code of practice or judgement of a relevant court of law or directives or requirement in force from time to time;
Intellectual Property Rights: copyright, and related rights, patents, rights to inventions, trade marks, service marks, design rights, database rights, trade or business names, domain names, right in get-up, goodwill and know-how and all other intellectual property rights whether registered or unregistered and including any application for these rights, and similar or equivalent rights or forms of protection which subsist or will subsist in any part of the world;
Personal Data, Data Controller, Data Processors and Data Subject: as defined under Data Protection Legislation and further set out in the Subscriber Form;
Platform: means the Locowise online platform that generates reports on social media performance of brands and individuals on third party social media platforms as supported by the platform from time to time;
Services: as set out in the Subscriber Form and based on the subscription package chosen by you;
Subscriber Content: any information and data submitted by you or obtained by any API requests you have made via the Platform;
Subscriber Form: means the form setting out your subscription package to which these Terms are attached and apply to;
Subscription Fee: as set out in the Subscriber Form and based on the subscription package chosen by you;
Subscription Period: as set out on the Subscriber Form; and
UK GDPR: the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act of 2018.
A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the contract otherwise requires, words in the singular include the plural and, in the plural, include the singular.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes any subordinate legislation made from time to time under it.
A reference to writing or written includes email.