Authorised Users means those named individuals to whom the Subscriber grants access authorization to use the Platform.
Commencement Date means the date set out in the Order.
Confidential Information means all information (whether or not recorded in documentary form or stored on any magnetic or optical disk or memory) relating to either party’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, whether marked confidential or otherwise and any other information that is by its very nature confidential.
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 any regulations on the free movement of such data together with any guidance, directions, decisions, determinations, codes of practice, orders, notices or demands issued by any supervisory or competent authority.
Fee means the fee payable by you as set you as set out in the Order for the subscription package chosen by you.
Intellectual Property Rights means 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.
Locowise Materials means any and all documents, materials and products of the Services, whether digital or otherwise created through the Platform whether using third party or subscriber data or otherwise including, all reports, interfaces or otherwise.
Order means your legally binding order for the Services which these Subscriptions Terms are deemed to be incorporated therein.
party means a party to this Agreement and parties shall mean both parties.
Personal Data, Data Controller, Data Processors and Data Subject has the meaning attributed to it under the Data Protection Legislation and further set out in the Order.
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 means those services described in the Order.
Subscriber Data means any data submitted by the Subscriber or obtained by any API requests you have made via the Platform.
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.
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.
Capitalised terms, where used herein and defined in the Data Protection Legislation shall have the meanings attributed to them under the Data Protection Legislation. Capitalised terms where used herein and not defined herein or defined in the Data Protection Legislation shall have the meaning given in the Order.
3.1 Each Order shall be deemed to incorporate these Subscription Terms and shall constitute a separate Agreement. Each Agreement shall commence on the Commencement Date and shall continue for the Term.
3.2 Upon expiration of the Initial Term, the Agreement shall automatically renew for additional twelve (12) consecutive month periods unless otherwise terminated in accordance with clause 11 upon the same terms and conditions as set out herein (or as updated from time to time) save in that the Fee shall increase by 7% annually unless otherwise agreed in the Order.
4.1 Subject to payment of the Subscription Fees and the Subscriber’s full compliance with these Subscription Terms Locowise grants to the Subscriber a non-exclusive, non-transferable right to use the Platform pursuant to the terms of the Order during the Term. Usage is limited to the Authorised User numbers and Services specified in the Order. Access credentials can be transferred from one individual to another by notice in writing to Locowise, but cannot be shared and the original Authorised User will be removed. Locowise shall be entitled to monitor usage of the Services to ensure compliance with these Subscription Terms.
4.3 Locowise will 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 third party services or circumstances beyond our reasonable control.
4.4 Locowise will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data.
4.5 Locowise reserves 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 it being acknowledged that the Subscriber is not required to subscribe to new features. Locowise shall inform the Subscriber of modifications to the Platform within a reasonable period of time in advance. Where in justified cases Locowise removes functionality from the Platform without providing a functional equivalent, Locowise will provide six months’ notice and the parties will agree appropriate and proportionate adjustments to the Fees.
4.6 Notwithstanding any other provision of this Agreement and without prejudice to any other rights and remedy of Locowise, Locowise may suspend access to, amend, remove and/ or delete any content, reports, data, Subscriber Data on the Platform:
(a) where a third party alleges infringement of its intellectual property rights, or privacy or other personal rights;
(b) where Locowise is subject to a court order requiring its removal or any other request of any competent authority;
(c) where the Subscriber’s use of the Platform is contrary to your applicable local laws;
(d) where the Subscriber’s use it is contrary to our policies or the law;
(e) for any misuse of the Platform, non-payment of the Fee or any other bona fide legal reason.
4.7 With respect to the Platform, Subscriber will not: a) except to the extent such rights cannot be validly waived by law, copy, translate, disassemble, decompile, make derivative works, or reverse engineer the Platform or any products therefrom (or attempt any of the foregoing); b) enter, store, or transfer any content or data on or via the Platform that is unlawful or infringes any Intellectual Property Rights; c) circumvent or endanger the operation or security of thePlatform; or d) remove Locowise’s copyright and authorship notices.
4.8 Subscriber covenants, on behalf of itself and its successors and assigns, not to assert against Locowise, its Affiliates or licensors, any rights, or any claims of any rights, against the Platform or any part thereof or in any of the Services including, the Locowise Materials.
5.1 Subscriber undertakes throughout the Term:
(a) when using the Platform, not to transmit or 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.
(b) to keep the Platform account passwords and login details secure;
(c) to prevent unauthorised access to or use of the Platform and notify Locowise promptly of any such unauthorised access or use;
(d) use the Platform according to any allocated logins and not share use of the Platform with any other persons;
(e) use the Platform solely in accordance with this Agreement and comply with all applicable local laws and regulations with respect to your activities under this Agreement;
(f) not introduce any worms, viruses or any other code that may be disruptive, infect or impact the proper functionality of the Platform; and
(g) not share access credentials other than as permitted hereunder.
6.1 Subscriber undertakes to pay the Fee as set out in the Order. 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).
6.2 In the event of an invoiced amount not being paid in accordance with clause 6.1, without prejudice to any other rights and remedy of Locowise, Locowise may charge interest in accordance with the Late Payment of Commercial Debt (Interest) Regulations 2013 and/or suspend the Service.
7.1 The Subscriber acknowledges and agrees that all Intellectual Property Rights in the Platform and the Services (including in the automated reports, report templates, images etc.) and all products produced by the Platform shall remain the legal and beneficial property of Locowise absolutely.
7.2 Subject to receipt of fully cleared funds of the Fee, Locowise hereby grants to the Subscriber a revocable, non-exclusive limited right and licence to use the reports generated by the Subscriber’s use of the Platform in respect of the Subscriber’s use of the Platform. Such reports must not be shared with any third party and remain the sole property of Locowise.
7.3 Subscriber undertakes not to reverse-engineer, decompile, disassemble or create derivative works based on the Platform, the Services or the products of the Services and or any data generated by the reports.
7.4 The Subscriber remains the legal and beneficial owner of all Subscriber Data. Subscriber hereby grants Locowise a worldwide, royalty-free, limited licence to host, copy, use, transmit and display the Subscriber Data for the sole purpose of providing and supporting the Services and complying with this Agreement and any applicable laws.
8.1 The receiving party undertakes to maintain all Confidential Information of the disclosing party in strict confidence, taking the same or equivalent steps to protect that Confidential Information that the receiving party takes to protect its own confidential information, which shall not be less than a reasonable standard of care. Each party shall not use or reproduce the other party’s Confidential Information other than is required for the purposes of exercising their rights under this Agreement. Further neither party shall remove any legends, proprietary notices, or confidential notices of the other party.
8.2 Each party may disclose the other party's Confidential Information:
(a) to its and its shareholders’ employees, officers, representatives or professional 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 such employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 8; 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.
8.3 No party shall use any other party's Confidential Information for any purpose other than to perform its obligations under this Agreement.
8.4 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 or deleted on termination of this Agreement, and no copies shall be kept, whether digitally or otherwise.
8.5 Locowise may be entitled to identify the Subscriber as a customer provided that any disclosure is in accordance with any Subscriber brand guidelines notified to Locowise.
9.1 Subscriber acknowledges and agrees that the Subscriber is the Controller and Locowise is a processor under the Data Protection Legislation in respect of Subscriber Data. Subscriber retains all rights in and related to the Subscriber Data. Subscriber grants to Locowise a non-exclusive right to process and use Subscriber Data to provide and support the Services provided hereunder and as needed to comply with this Agreement and any applicable laws. Each party undertakes to comply with all applicable data protection laws.
9.2 Subscriber will collect, maintain and process all Personal Data contained in the Customer Data in compliance with the applicable data protection laws, guidelines and regulations.
9.3 Subscriber will maintain legally required standards for its Authorised Users use of the Services and Subscriber must not conduct or authorize the conducting of any penetration testing without the prior written approval of Locowise.
9.4 Without prejudice to the generality of clause 9.2, Locowise shall, in relation to any Personal Data processed in connection with our performance of our obligations under this Agreement process that Personal Data in accordance with the Data Processing Policy and the Subscriber’s written lawful instructions.
9.5 Locowise shall
(a) provide all reasonable assistance to the Subscriber, at the Subscriber’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;
(b) notify the Subscriber, without undue delay on becoming aware of a Personal Data breach;
(c) at the Subscriber’s written request, delete or return Personal Data and copies thereof to the Subscriber at the Subscriber’s cost, on termination of the Agreement unless required by applicable law to store the Personal Data;
9.7 Subscriber acknowledges that we can create Locowise’s own aggregate reports and data based on anonymised versions of the Personal Data processed through the Platform.
10.1 Locowise warrants that:
(a) it shall supply the Services with reasonable skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature of this Service; and
(b) the Platform does not infringe the Intellectual Property rights of any third-party.
The above warranties will not apply if (i) the Platform is not used in accordance with this Agreement or any instructions or user guides of Locowise (ii) any non-conformity is caused by the actions or ommissions of the Customer or their employees, agents or contractors or by any goods or services not provided by Locowise; or (iii) the Services were provided for no Fee.
10.2 Subscriber warrants and represents that:
(a) it has the right, authority and licence to enter into this Agreement and comply with all obligations hereunder;
(b) it will only use the Platform in accordance with all applicable laws and regulations and the terms of this Agreement.
10.3 Subscriber acknowledges and agrees that the Platform is provided ‘as is’ and Locowise makes not warranties that use of the Platform will be uninterrupted or error-free. The Subscriber warrants it has undertaken its own due diligence and tested the Platform to determine that it is suitable for the requirements of the Subscriber.
10.4 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 third party services.
10.5 Locowise hereby excludes any and all implied and statutory terms whatsoever or howsoever arising.
10.6 Subscriber acknowledges and agrees it is responsible for inputting data correctly andhow you interpret the findings in reports.
11.1 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.
11.2 Subject to clause 11.3 neither party shall be liable for (whether in action in contract or tort or otherwise):
(a) indirect, incidental, special or consequential losses or damage;
(b) loss or profits;
(c) loss of business;
(d) loss of revenue;
(e) loss of data or use, incurred by you or any third party.
11.3 Subject to clauses 9.1, 11.1 and 11.2, each party’s aggregate liability to the other party for any and all loss or damage whether in tort, shall not exceed 120% of the Fees paid to Locowise under this Agreement in any 6 months period of delivery of the Services.
11.4 Except as expressly provided in the Agreement, neither Locowise nor its subcontractors makes any representation or warranties, and Locowise and each of its subcontractors disclaims all representations, warranties, terms, conditions or statements, which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, all of which are hereby excluded to the fullest extent permitted by law including the implied conditions, warranties or other terms as to quality, suitability, originality, or fitness for a particular use or purpose. Further, except as expressly provided in this Agreement, neither Locowise nor its subcontractors make any representations, warranties, terms, conditions or statements of non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Subscriber agrees that it is not relying on delivery of future functionality, public comments or advertising of Locowise or product roadmaps in obtaining subscriptions for any Service.
12.1 A party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party is in material breach of its obligations under this Agreement (and non-payment shall constitute material breach) and if such breach if remediable such party has failed to remedy that breach within 30 days’ written notice of such breach. Any failure to pay the Fee or any part thereof shall constitute a material breach for the purposes of this clause.
12.2 Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) 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;
(b) the other party has an administrator or liquidator appointed; or
(c) 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.
12.3 If this Agreement is validly terminated for breach by Locowise, then the sole remedy available to the Subscriber is a prorated refund of any Fees paid in advance for services not provided during any period remaining during the Term.
13.1 Save as provided in clause 12.3 and this Agreement, any termination of this Agreement shall be without prejudice to any antecedent rights or remedies that inured to the parties prior to such termination.
13.2 On termination or expiration of this Agreement all licences granted by either party under this Agreement shall cease.
13.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force and effect on or after termination or expiration of this Agreement shall remain in full force and effect.
13.4 On termination or expiration of this Agreement for any reason Locowise shall restrict access to the Platform. Provided the Subscriber is fully paid up, the Subscriber shall be allowed a period of 10 days (Period) to access the Platform for the sole purpose of downloading any reports that have already been generated or Subscriber data it wishes to retain. Thereafter all Subscriber data shall be deleted from the Platform with no liability to the Locowise.
14.1 In order to protect the legitimate business interests and confidential information of the other party, each party warrants, represents and undertakes to the other party that it shall not directly or indirectly, and shall procure that no directors, contractors, sub-contractors, agents and employees shall directly or indirectly: (a) solicit or entice away, or attempt to solicit or entice away, from the employment or service of the other party the services of any Restricted Person; or (b) employ or engage the services of any Restricted Person.
14.2 The restrictions in 14.1 above shall apply: (i) in respect of any Restricted Person who is a Manager, during the Term of the Agreement and for a period of nine (9) consecutive months after expiration or termination of the Agreement; or (ii) in respect of any Restricted Person who is not a Manager during the Term of the Agreement and for a period of six (6) consecutive months after expiration or termination of the Agreement.
14.3 Clauses 14.1 and 14.2 shall not apply to any Restricted Person who without any pre-emption, communication, breach of clauses 14.1 and 14.2 or other enticement by the other party directly applies to such recruiting party through a selective procurement process or in response to a national advertising campaign open to the public, and in which case the recruiting party shall notify the other party of the name of any such Restricted Person prior to their employment or engagement by the recruiting party.
14.4 Without prejudice to any other rights or remedies available to a party for breach of this clause 16, should a party breach this clause 14, the breaching party shall, on demand, pay by way of liquidated damages, to non-breaching party a sum equal to one year's salary and/or an amount equal to the annual fee that was or would be payable by non-breaching party to the Restricted Person plus the recruitment costs (including all advertising costs) incurred by the non-breaching party in replacing such Restricted Person. The parties acknowledge and agree that the above amount is a genuine pre-estimate of damages that are reasonable, fair and proportionate to protect the legitimate business interests and confidential information of the parties and does not constitute a penalty nor a restraint of trade.
14.5 If any provision or part of any provision of this clause 14 is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but such deletion shall not affect the validity and enforceability of the rest of this clause. If any provision or part-provision of this clause 16 is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.6 For the purposes of this clause 14, Restricted Person means any firm, company, supplier or person employed or engaged by a party at any time during the Term of the Agreement, including where engaged in connection with the provision of the Services or the management of the Agreement as principal, agent, employee, independent contractor or supplier. Manager means any person retained in any capacity carrying on a strategy function and/or is involved in the management of the business and/or is an account manager responsible for the management of a team and/or client liaison.
Each party shall (a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery, anti-corruption and anti-slavery including but not limited to the Bribery Act 2010 and US Foreign Corrupt Practices Act 1977 (as amended), Modern Slavery Act 2015 (UK) and the Criminal Finance Act 2017 (Relevant Requirements); (b) not engage in any activity, practice or conduct which would constitute an offence under the Relevant Requirements; (c) have and shall maintain in place throughout the term of the Agreement its own policies and procedures, to ensure compliance with the Relevant Requirements and will enforce them where appropriate; and (c) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received by it in connection with the performance of the Agreement or other breach of the Relevant Requirements.
16.1 Waiver: A waiver of any right under an Agreement is only effective if it is in writing and it shall apply only to the party to whom the waiver is addressed and the circumstances for which it is given.
16.2 Variation: No variation to the Agreement or amendment shall have effect unless expressly agreed in writing and signed by each party.
16.3 Assignment: Neither party shall assign, sub-contract or otherwise transfer any or all of its rights or obligations under the Agreement without the prior written consent of the other party, other than, subject to clause 4.1, to such of its group, subsidiary and parent companies in the same group and provided the relevant party shall remain fully liable for all its obligations hereunder. Locowise shall be entitled to sub-contact its Services hereunder and assign the rights and benefits under this Agreement in its discretion.
16.4 Further Assurance: Each party shall do and execute or arrange and procure for the doing and executing of, any act and/or document reasonably requested of it by any other party to implement and give full effect to the terms of the Agreement.
16.5 Third Party Rights: A person who is not a party to the Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
16.7 Non-reliance: In entering into the Agreement, the Subscriber has not relied on any statement, representation, warranty, understanding, promise or assurance of any person, other than as expressly set out in the Agreement. Subscriber waives all rights and remedies which, but for this clause, it might otherwise have had in relation to any of the foregoing.
16.8 No partnership: Nothing in the Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
16.9 Notices: All written notices (unless otherwise specified herein) must be delivered by e-mail, hand or by pre-paid first class post or next day working day delivery service to the relevant party’s address as set out at the head of the Agreement (or such other address as may be notified to the other party) or the relevant email address(es) set out in the relevant Order, as the case may be. Any notice shall be deemed to have been received: (a) if delivered by e-mail, at time of delivery; (b) if delivered by hand, on the day of delivery (c) if sent by pre-paid first-class post or other next working day delivery service within the UK, forty eight (48) hours after posting or at the time recorded by the delivery service. Email notices herein shall be deemed to be received on the same day (based on UK time zone) as they are sent, subject to valid evidence of receipt.
16.10 Force Majeure: Neither party shall be liable to the other party for any delay in performing its obligations due to a Force Majeure Event. For the purposes of this Agreement Force Majeure Event means any event, act, non-happening, omission or accident beyond the reasonable control of a party including but not limited to fires, storm, flood, earthquake, natural disaster, national or global pandemic or epidemic or widespread illness or disease, breakdown of infrastructure, unavailability or inoperability of the internet, any technical malfunction, error, hacking or virus damage, any loss of data, industrial action, or any change of law or Government regulation, any changes to the operation of the Platform or to laws and regulations governing the Platform which makes it impossible or impracticable for Locowise to carry out all or part of the Services.
16.11 Injunctive Relief: Each party acknowledges that monetary damages may not be an adequate remedy for any breach of the Agreement, and a non-breaching party shall be entitled, without prejudice to any other rights or remedies, to seek injunctive or equitable relief.
16.12 Execution: This Agreement and all Orders will be binding upon the parties if executed as an original, in any number of counterparts (which together shall constitute one agreement), or executed by a verifiable electronic signature (ie Adobe and Docusign) or via PDF, JPEG, TIFF or any other format agreed by the parties in writing.
16.13 Governing Law and Jurisdiction: 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. 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 the Agreement or its subject matter or formation (including non-contractual disputes or claims).