This agreement (comprising the Order Form and these Terms of Service) sets out the terms and conditions upon which you may use the Echobox Service and any application or functionality Echobox makes available through the Echobox Service.
By signing up to or using the Echobox Service, you agree to and accept these Terms of Service.
Please read these Terms of Service carefully and make sure you understand and agree to them before using the Echobox Service. If you have any questions relating to these Terms of Service please contact Echobox at firstname.lastname@example.org.
In the event of a conflict between the Order Form and these Terms of Service, the Order Form shall prevail.
The Echobox Service is provided by Echobox Ltd ("Echobox"), a company incorporated and registered in England and Wales under company number 08115900 whose registered office is at 9th Floor, 107 Cheapside, London, United Kingdom, EC2V 6DN.
In these Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:
"Account" means the Customer's account on the Echobox Service;
"Agreement" means the agreement between the Customer and Echobox for the provision of the Echobox Service comprising the Order Form and these Terms of Service;
"Customer" means the person identified as the customer in the Order Form;
"Customer Data" means the content and data the Customer makes available to Echobox as a result of the use of the Echobox Service;
"Commencement Date" means the date from which the Customer will receive access to the Echobox Service, as set out in the Order Form;
"Confidential Information" means information which is identified as confidential or proprietary by either party or by the nature of which is clearly confidential or proprietary;
"CPI" means the Consumer Prices Index published by the Office for National Statistics, or, if the Consumer Prices Index stops being published or becomes inappropriate in Echobox's reasonable opinion, such other index or measure of inflation as Echobox reasonably considers appropriate;
"Derived Materials" means:
in each case produced or developed by Echobox during the Term;
"DPA" shall have the meaning given to it in clause 13.1;
"Echobox Service" means the analytics and metrics software platform that Echobox makes available as a service through the Website that allows users to automate the management of their social media presence in accordance with the Service Features;
"Facebook Page" means a public profile for a business, brand, celebrity, cause or other organisation on Facebook created and managed by or on behalf of the Customer;
"Initial Term" means one (1) year or such other period as may be agreed between the parties and set out in the Order Form;
"Order Form" means the order form signed (whether electronically or otherwise) by the parties, and which, amongst other things, identifies the Customer and sets out the Service Fees;
"Payment Terms" has the frequency with which the Customer shall pay the Service Fees, as set out in the Order Form or as otherwise agreed by the parties in writing;
"Property" means the Customer's web domain;
"Renewal Term" means a period of one (1) year or such other period as may be agreed between the parties and set out in the Order Form;
"Service Features" means the functionalities of the Echobox Service described in the Order Form;
"Service Fees" means the amount set out in the Order Form, as amended in accordance with this Agreement, for the provision of the Setup Services and the provision of the Echobox Service during the Initial Term and any Renewal Terms;
"Setup Services" means the services integrating the Echobox Service with the Customer's web pages or mobile application and creating a Customer specific audience graph;
"Terms of Service" means these terms and conditions of service as amended from time to time;
"Term" means the Initial Term and any Renewal Term;
"Twitter Page" means a Twitter account created and managed by or on behalf of the Customer;
"User" means any person authorised by the Customer to access the Echobox Service on behalf of the Customer;
"Virus" means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
The Agreement shall automatically renew for a Renewal Term at the end of the Initial Term (and at the end of each Renewal Term), unless either party gives written notice to the other party to terminate the Agreement at the end of the Initial Term or the then- current Renewal Term (as applicable), such notice to be given no later than 30 days prior to the expiry of the Initial Term or the then-current Renewal Term (as applicable).
The Customer will pay the Service Fees as set out in the Order Form by bank account transfer or other electronic payment method. The Service Fees are payable in advance in accordance with the Payment Terms. The Customer agrees that, subject to clause 5.8, the Service Fees are non-refundable.
Unless alternative payment is agreed in the Order Form, the Customer will provide to Echobox valid, up-to-date and complete credit or debit card details and it hereby authorises Echobox to bill such credit or debit card for the Service Fees as set out in the Order Form.
If Echobox has not received payment in full within 14 days after the due date, and without prejudice to any other rights and remedies available to Echobox:
All amounts and fees stated or referred to in the Agreement:
Unless otherwise agreed between the parties in writing, the Service Fees shall, at the end of the Initial Term and each Renewal Term, increase by 5% or the percentage increase in the CPI during the Initial Term or expiring Renewal Term (as applicable), whichever is higher.
If the Customer fails to pay any sum due to Echobox and such sum remains outstanding for a further 14 days following notice requiring such sum to be paid Echobox may terminate the Agreement with the Customer immediately by notice and without any liability for Echobox to the Customer.
Echobox may terminate the Agreement with 30 days' notice in writing.
Echobox may terminate the Agreement by notice with immediate effect, or such notice as Echobox may elect to give, if the Customer:
Either party may terminate the Agreement at any time on written notice to the other if the other:
Save as set out in clause 12.4, on termination of the Agreement for any reason all licences granted under the Agreement shall immediately terminate and the Customer's right to access and use the Echobox Service will end.
Echobox shall use reasonable endeavours to permit the Customer to download any Customer Data from the Echobox Service for a period of 15 days after the expiry or termination (howsoever caused) of the Agreement.
The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
Where the Agreement is terminated by Echobox in accordance with clause 5.2, Echobox shall refund the Customer any Service Fees paid by the Customer relating to the unexpired period of the Initial Term or Renewal Term (as applicable).
Echobox grants the Customer a non-exclusive, non-transferable, personal and non sub- licensable licence for the Term to access and use, and permit Users to access and use the Echobox Service and the Echobox Service features for the purpose of monitoring and analysing content available to the Customer on the Echobox Service and managing the Customer's Account.
The Customer must treat any username and password used to access the Echobox Service or the Customer's Account as Confidential Information, and it must not disclose it to any third party (other than to Users).
In relation to Users, the Customer shall ensure that each User keeps secure and confidential any username and password provided to them for the User's use of the Echobox Service and shall not disclose such user name and password to any third party other than persons within the Customer's organisation, company or business.
Echobox may disable any username or password, at any time and at Echobox's sole discretion, if a User or the Customer has failed to comply with any of the provisions of the Agreement.
The Customer is responsible for maintaining the confidentiality of login details for its Account and any activities that occur under its Account including the activities of Users. Whenever applicable, Echobox encourages the Customer to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its Account. If the Customer has any concerns about the login details for its Account or thinks they have been misused, please contact Echobox at email@example.com.
The Customer must take reasonable precautions to prevent any unauthorised access to, or use of, the Echobox Service and, in the event of any such unauthorised access or use, promptly notify Echobox.
The Customer recognises that Echobox is always innovating and finding ways to improve the Echobox Service with new features and services. Therefore, the Customer agrees that the Echobox Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Echobox Service.
Echobox will provide the Setup Services to the Customer.
Echobox may monitor the Customer's use of the Echobox Service to ensure quality, improve the Echobox Service, and verify the Customer's compliance with the Agreement.
The Customer shall indemnify and defend Echobox, its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer's fees) arising out of a claim brought by a third party relating to the Customer's use of the Echobox Service (except to the extent caused by Echobox's negligence), including (without limitation) any claim for defamation or any infringement of a third party's rights.
Echobox will, as part of the Echobox Service, use reasonable endeavours to provide a level of support that is appropriate to the nature of any issues requiring support during normal business hours (UK time). Support for Customers using the Echobox Service will be provided between the hours of 9.00 am and 6.00 pm (UK time), Monday to Friday (excluding bank and public holidays in the UK), and is provided entirely at Echobox's option and discretion. The Customer shall:
The Customer acknowledges that the Echobox Service is dependent on access to various third party data sources (including the Customer Data). The Customer agrees that Echobox are not responsible for the non-availability or interruption to the Echobox Service caused by any such non-availability of any such third party data source.
Echobox undertakes to support the Echobox Service and will provide the Setup Services with reasonable skill and care. Otherwise, the Echobox Service is provided on an "AS IS" basis and Echobox gives no representations, warranties, conditions or other terms of any kind in respect of the Echobox Service, whether express or implied, including, but not limited to, warranties of satisfactory quality, merchantability fitness for a particular purpose or non-infringement.
Except as expressly and specifically provided for in the Agreement:
Subject to clause 10.2, Echobox will not be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the Agreement in conditions that fall into the following categories: loss of income or revenue; loss of business; loss of profits; loss of anticipated savings; loss of data; waste of management or office time; or any indirect, consequential or special damages, costs or expenses.
Nothing in the Agreement excludes or limits Echobox's liability for death or personal injury caused by Echobox's negligence or for fraud or fraudulent misrepresentation.
Echobox's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall in all circumstances be limited to the Service Fees paid by the Customer in the 6 months prior to the event giving rise to the claim.
No party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, internet failure, act of God, governmental act, war, fire, flood, explosion or civil commotion, save that nothing in this clause shall excuse the Customer from any payment obligations under the Agreement.
Echobox is the owner of or the licensee of all intellectual property rights in the Echobox Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved.
The Customer will not, when using the Echobox Service, except as may be allowed by any applicable law which is incapable of exclusion by Echobox or as expressly permitted under these Terms of Service:
The Customer grants Echobox a licence to access, download and use the Customer Data for the purpose of analysing the Customer Data in accordance with the Echobox Service functionality, displaying the results of such analysis to Users, developing, testing, improving and altering the functionality of the Echobox Service and producing anonymised or anonymised and aggregated statistical reports and research. Otherwise, Echobox claims no rights in the Customer Data. The Customer shall maintain a backup of Customer Data and Echobox shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Customer Data.
Upon termination of the agreement for any reason:
To the extent that Echobox processes any personal data on behalf of the Customer as a processor in connection with Echobox's access to the Customer Data, it shall do so in accordance with the data processing addendum ("DPA") on www.echobox.com/dpa.
For the purpose of this clause 13, the terms "personal data", "process" and "processor" shall have the same meaning as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms of Service. A party's Confidential Information shall not be deemed to include information that:
Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.
Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by it or its employees or agents in violation of the terms of the Agreement.
Each party shall take a back-up of its own Confidential Information and shall not be responsible to the other for any loss, destruction, alteration or disclosure of Confidential Information.
Echobox may use the Customer's name, logo and related trade marks in any of Echobox's publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Customer uses the Echobox Service and alongside any testimonials that the Customer has agreed to give. The Customer grants Echobox such rights as are necessary to use its name, logo, related trademarks and testimonial for the purpose of this clause 15.
Applicable laws may require that some of the information or communications Echobox send to the Customer should be in writing. When using the Echobox Service, the Customer accepts that communication with Echobox will be mainly electronic. Echobox will contact the Customer by e-mail or provide the Customer with information by posting notices on the Echobox Service. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges that all contracts, notices, information and other communications that Echobox provides to the Customer electronically comply with any legal requirement that such communications be in writing.
All notices given by the Customer to Echobox must be given to firstname.lastname@example.org. Echobox may give notice to the Customer at either the e-mail or postal address the Customer provides to Echobox, or any other way Echobox deems appropriate. Notice will be deemed received and properly served immediately when posted on the Echobox Service or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
The Customer may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Customer's rights or obligations arising under the Agreement, without Echobox's prior written consent.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
Echobox has the right to revise and amend these Terms of Service from time to time to reflect changes in market conditions affecting Echobox's business upon giving to the Customer at least 30 days' notice in writing. If the Customer is unhappy with the change, the Customer may, at any time during the notice period, give notice to Echobox rejecting the change, in which case the unchanged Terms of Service will continue to apply and, without prejudice to either party's rights under clause 5, the Agreement shall terminate at the end of the Initial Term or the then-current Renewal Term (as applicable).
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes any previous agreements, promises, assurances, warranties, representations and understandings between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
A person who is not party to the Agreement shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
The Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.