Terms of Service

Last Updated: 21 May 2018

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 terms@echobox.com.

In the event of a conflict between the Order Form and these Terms of Service, the Order Form shall prevail.

Information about Echobox

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.

Interpretation

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:

  1. anonymised or anonymised and aggregated Customer Data; and
  2. any materials produced by Echobox by reference to or derived from Customer Data (subject to Echobox's obligations under the DPA),

in each case produced or developed by Echobox during the Term;

"DPA" shall have the meaning given to it in clause 14.1;

"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 Trial Period (where applicable), the Initial Term and any Renewal Term;

"Trial" means a trial of the Echobox Service for the Trial Period;

"Trial Fees" means the amount set out in the Order Form for the provision of the Echobox Service during the Trial Period or such other amount as agreed between the parties in writing;

"Trial Period" means the period set out in the Order Form or as otherwise agreed between the parties in writing;

"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;

"Website" means www.echobox.com, and any related domains and subdomains, such as secure.echobox.com.

Trial

Echobox may offer a Trial of the Echobox Service during the Trial Period. If a Trial Period has been agreed in the Order Form:

  1. the Agreement shall start on the Commencement Date and shall, subject to earlier termination in accordance with this Agreement, continue for the Trial Period;
  2. the Trial Fees shall be payable on the Commencement Date; and
  3. either party may, at any time during the Trial Period, immediately terminate the Agreement on written notice to the other party.

Duration

Subject to clause 3.1, the Agreement shall automatically renew at the end of the Trial Period for the Initial Term.

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).

Price and Payment

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 6.8, 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:

  1. Echobox may, without liability to the Customer, suspend or temporarily disable all or part of its access to the Echobox Service and Echobox shall be under no obligation to provide any access to the Echobox Service while the invoice(s) concerned remain unpaid; and
  2. interest shall accrue on such due amounts at a monthly rate of one per cent (1%) commencing on the due date and continuing until fully paid, whether before or after judgment.

All amounts and fees stated or referred to in the Agreement:

  1. are payable in the currency specified in the Order Form or otherwise stipulated by Echobox; and
  2. are exclusive of value added tax ("VAT") unless otherwise expressly stated which shall be paid at the same time as payment of the Service Fees. Echobox shall send the Customer a VAT invoice if Echobox is requested to do so.

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.

Suspension and Termination

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:

  1. is in breach of applicable law; or
  2. infringes Echobox's intellectual property rights in the Echobox Service.

Either party may terminate the Agreement at any time on written notice to the other if the other:

  1. is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
  2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

Save as set out in clause 13.4, 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 6.2, 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).

Access to the Echobox Service

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 terms@echobox.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.

Customer Obligations

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.

The Customer:

  1. must comply with all applicable laws and regulations with respect to its use of the Echobox Service and its activities under the Agreement;
  2. must use the Echobox Service in accordance with the terms of the Agreement and shall be responsible for any actions and omissions in connection with the use of the Echobox Service by any Users;
  3. must obtain and shall maintain all necessary licences, consents, and permissions necessary for Echobox to perform its obligations to the Customer under the terms of Agreement;
  4. must ensure that its network and systems, including its internet browser used complies with the relevant specifications provided by Echobox from time to time, including the specifications described at www.echobox.com/customertech;
  5. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Echobox Service;
  6. must not (a) access, store, distribute or transmit any Virus through the Echobox Service (b) use the Echobox Service to access, store, distribute or transmit any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (c) use the Echobox Service in a manner that is illegal or causes damage or injury to any person or property; (d) use any automated system, including without limitation "robots", "spiders" or "offline readers" to access the Echobox Service in a manner that sends more request messages to the Echobox Service than a human can reasonably produce in the same period of time by using a conventional online web browser; (e) attempting to interfere with or compromise the Echobox Service integrity or security. Echobox reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Customer's Account for breaches of the provisions of this clause 8.2(f); and
  7. must not, without Echobox's consent (which may be withheld or granted on such conditions as Echobox, in its discretion, deems appropriate), connect more Properties, Facebook Pages or Twitter Pages to the Echobox Service than the number of Properties, Facebook Pages or Twitter Pages (as appropriate) set out in the Order Form or otherwise agreed between the parties.

Support

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:

  1. submit all support requests to support@echobox.com; and
  2. provide all support reasonably required by Echobox to perform its obligations under this clause 9, including providing reasonably detailed descriptions of issues and updates on the performance of the Echobox Service.

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.

Limited Warranty

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:

  1. the Customer assumes sole responsibility for integration of the Echobox Service with its IT systems including but not limited to the Customer's hardware, software, websites and apps; and (ii) any results obtained from the use of the Echobox Service and for any conclusions drawn or taken from such use and it relies on the results obtained from the Echobox Service at its own risk;
  2. all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
  3. Echobox will not be responsible for any interruptions, delays, failures or non- availability affecting the Echobox Service or the performance of the Echobox Service which are caused by third party services or errors or bugs in software, hardware or the internet on which Echobox relies to provide the Echobox Service and the Customer acknowledges that Echobox does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.

Echobox's Liability

Subject to clause 11.2, 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 or, in the case of an event in the Trial Period giving rise to a claim, £1.

Events outside Echobox's Control

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.

Important Note on Intellectual Property Rights

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:

  1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Echobox Service in any form or media or by any means; or
  2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Echobox Service; or
  3. access all or any part of the Echobox Service in order to build a product or service which competes with the Echobox Service or use or attempt to use the Echobox Service to directly compete with Echobox.

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:

  1. Echobox shall cease any further use of the Customer Data (other than any Derived Materials); and
  2. to the extent that intellectual property rights do not subsist in the Derived Materials independently of the intellectual property rights in the Customer Data, the licence granted under clause 13.3 shall be amended and continue as required to grant Echobox irrevocable, perpetual rights to use such Derived Materials.

Data Protection

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 14, 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.

Confidential Information

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:

  1. is or becomes publicly known other than through any act or omission of the receiving party;
  2. was in the other party's lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
  4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
  5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

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.

Publicity

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 16.

Written Communications

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.

Notices

All notices given by the Customer to Echobox must be given to terms@echobox.com. 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.

Transfer of Rights and Obligations

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.

Waiver

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.

Severability

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's Right to vary the Terms of Service

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 6, the Agreement shall terminate at the end of the Initial Term or the then-current Renewal Term (as applicable).

Previous Terms of Service, Agreements and Contracts

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.

Third Party Rights

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.

Law and Jurisdiction

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.