These Twtrland’s Terms of Service ("Agreement"), dated as of the Licensee’s signature date in the Order Form (as defined below) ("Effective Date"), are by and between Twtrland Ltd. ("Twtrland"), and Customer (“Licensee”), as defined in the Subscription Order Confirmation (“Order Form”). In the event of a conflict between the terms of the Order Form and this Agreement, the order of precedence shall be as follows: (1) the Order Form; and (2) this Agreement.
WHEREAS as between the parties, Twtrland is the owner or licensee of the “Klear” platform, a social intelligence solution that enables viewing insights on brands and individuals ("Services"); and WHEREAS Licensee desires to obtain a license from Twtrland to use the Services, and Twtrland is willing to grant such rights and licenses to use the Services subject to the terms and conditions set forth herein and in the Order Form; NOW, THEREFORE, the parties hereby agree as follows:
Scope of License. Subject to the this Agreement and the payment of the required fees, Twtrland grants Licensee a non-exclusive, nontransferable, non-sublicenseable, worldwide, revocable and limited license to use the Services for the purpose of Licensee's performing influencer marketing activities enabled via the Services for Licensee (“License”). Licensee warrants that: (a) it has the power and authority, and has taken all corporate action required, to enter into and fully perform this Agreement, and its entry into and performance of this Agreement do not and will not violate any agreement to which it is bound; and (b) Licensee will comply with all applicable laws, rules, regulations, and ordinances in its performance of this Agreement and use of the Services. Under the License, Licensee shall be given a user name and password from Twtrland for logging into the Services, following which Licensee's use of the Services shall be enabled. For clarity, this Agreement is a technology license agreement only and, therefore, no professional services are being provided to Licensee.
Intellectual Property Rights & Restrictions. Other than the limited License granted under this Agreement to Licensee during the Term, all intellectual property rights, ownership rights and proprietary rights in the Services and any part thereof, including all proprietary and secret information of Twtrland or its licensors, and including any and all derivatives, updates, upgrades, changes and improvements thereof lie and remain exclusively with Twtrland and/or its licensors. Licensee shall (i) not sell, lease, sublicense or distribute any rights of use in the Services or any part thereof or allow any third party to use such rights, for any purpose; (ii) not attempt to reverse engineer, decompile, or disassemble the Services, or any part thereof; (iii) refrain from modifying the Services, or granting any other third party the right to do so; (iv) not represent that it possess any proprietary interest in the Services; (v) not directly or indirectly, take any action to contest Twtrland's intellectual property rights or infringe them in any way; (vi) except as specifically permitted by Twtrland, not use the name, trademarks, trade-names, and logos of Twtrland; and (vii) not use, or otherwise transfer, or access (or allow third parties to use, transfer or access), any data made available to Licensee through the Services or any derivatives thereof (“Twtrland’s Data”) in order to create derivative works of the Services or any software product (or parts thereof) that is the same or substantially similar to the Services or achieve, or intends to achieve, the same or a similar purpose.
If Licensee provides suggestions, comments or feedback (whether orally or in writing) (the “Feedback”), any and all rights, including Intellectual Property Rights, shall belong exclusively to Twtrland and shall be considered Twtrland’s Confidential Information, and Licensee hereby irrevocably transfers and assigns to Twtrland all rights in such Feedback and waives any and all moral rights that Licensee may have in respect thereto. Use of Feedback, if any, may be made by Twtrland at its sole discretion.
Consideration. In consideration for the License granted to Licensee, Licensees shall pay Twtrland a license fee as set forth in the applicable Order Form ("License Fee"), as such applicable Order Form may be mutually amended by the parties from time to time. Payments shall be made according to the payment terms set forth in the applicable Order Form. If no payment terms are specified in the applicable Order Form, payments shall be made within thirty (30) days from receipt of invoice from Twtrland. All payments shall be in US dollars unless otherwise specified in the Order Form. Any payment not paid by Licensee to Twtrland when due shall bear interest at the rate of 1.5% per month (but no more than the maximum rate allowed by applicable law), and shall constitute sufficient cause for Twtrland to immediately suspend performance of this Agreement and/or terminate the Agreement in accordance with the Order Form.
Taxes. All amounts payable hereunder and under the Order Form shall be paid in net terms and shall not be subject to any set-off or deduction of any kind. Licensee is solely responsible for payment of any taxes resulting from the acceptance of the License, including VAT if applicable. If Licensee is required to withhold any amounts due to applicable tax laws or regulations, Licensee shall pay an amount to Twtrland such that the net amount payable to Twtrland after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement (“gross up”). In addition, Licensee shall be responsible for all income, sales, business, or any other such form of tax, fee, license or payment due in receipt of the transfer of the property or right to use such property under all circumstances. Twtrland may request payment of such applicable taxes in accordance to applicable law for remittance to such governmental agency, but all final duties for payment and compliance of all tax laws shall be the duty of the Licensee. Licensee agrees to hold harmless Twtrland from all claims and liability arising from Licensee’s failure to report or pay any applicable taxes, duties or other governmental charges.
Technical Support. During the term of this Agreement, Twtrland will provide Licensee technical support for the Services during the following Technical Support Hours: Monday to Friday from 9 am to 5 pm ET and Monday to Friday 9 am to 5 pm CET. Licensee shall be entitled to training & strategy sessions over webex, live in-platform chat support, monthly reviews, and a dedicated account manager to assist with questions according to the Support Package as stated in the Order Form.
Confidentiality. All designs, engineering details, and other technical, financial, marketing, commercial and other information pertaining to the Services and/or Twtrland's business activities and/or any proprietary or confidential information of Twtrland disclosed pursuant to this Agreement which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature shall be considered “Confidential Information”. Licensee agrees to use Twtrland’s Confidential Information only in connection with the License, to keep such Confidential Information confidential, and not to reproduce, copy, or disclose such Confidential Information to any third party, except with Twtrland's prior written consent. If the disclosure is required by law, government order or request to be disclosed, Licensee shall give written notice to the Twtrland prior to such disclosure and an opportunity to take legal steps to resist or narrow such request.
Disclaimer of Warranties. Licensee acknowledges that the data contained on, or included in, the Services are based on information, data and content obtained by Twtrland. It is hereby made explicitly clear that, to the maximum extent permitted by law, Twtrland shall not be held responsible for any acts and/or omissions regarding data and that Twtrland does not intend and will not be required to edit or review for accuracy or appropriateness any information and/or data provided by Licensee (including such information contained in Licensee's social properties). EXCEPT FOR THE WARRANTIES PROVIDED HEREIN, IF ANY, TWTRLAND PROVIDES THE SERVICES TO LICENSEE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TWTRLAND AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. TWTRLAND DOES NOT WARRANT THAT THE SERVICES OR ANY SOFTWARE OR DATA RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION. Licensee is solely responsible for proper configuration of all hardware and other equipment and all devices and other software used with the Services.
Indemnification. Licensee shall fully indemnify, defend and hold Twtrland (including its officers, directors, employees, subsidiaries and affiliates) harmless from any and all losses, damages, fees, settlements and damages (including reasonable attorney's fees) arising from a claim based on Licensee's breach of its warranties and obligations as set forth in this Agreement. Subject to the Indemnification Exceptions (defined below), Twtrland shall indemnify Licensee from and against any claims or actions brought or made by a third party against Licensee and from all damages, costs, claims and expenses (including reasonable attorneys’ fees and costs) arising in connection therewith, and will pay any settlements agreed to by Twtrland or judgments awarded against the Licensee in favor of the third party resulting from such claim, to the extent based upon any claim that the Services infringe any valid patent, copyright or trade secret. The party providing indemnification (the Indemnitor) shall provide the other party (the Indemnitee) with: (a) prompt written notice of such claim; (b) sole control over the defense and settlement of such claim. The Indemnitee shall provide the Indemnitor with information as may be reasonably requested by the Indemnitor. Licensee may not settle any claim on behalf of Twtrland without first obtaining Twtrland’s written permission
Indemnification Exceptions: Twtrland will have no obligation to Licensee to the extent that any claim arises from:
Any modification to the Services by anyone other than Twtrland;
Modifications made by Twtrland in accordance with Licensee’s specific request;
Use of the Services other than as specified in this Agreement; or
Use of the Services in combination with third-party software, hardware or data not expressly approved in writing by Twtrland, if the claim would not have arisen but for such combination.
Claims: If a claim arises, or in Twtrland’s opinion is likely to arise, Twtrland may, at its own discretion, obtain for Licensee the right to continue using the Services, modify the Services to make them non-infringing, or substitute at no additional cost the Services with another service of substantially similar capability and functionality. If none of these options are reasonably available to Twtrland, Licensee may terminate this Agreement as a sole remedy in which case Twtrland’s sole liability will be to refund to Licensee, within 30 days, the Fees pre-paid under this Agreement for the remaining unused period of the license. THIS SECTION “CLAIMS” STATES TWTRLAND’S SOLE LIABILITY AND OBLIGATIONS, AND THE EXCLUSIVE REMEDIES OF LICENSEE, WITH RESPECT TO ANY CLAIMS RELATED TO TWTRLAND’S INFRINGEMENT OR VIOLATION OF ANY KIND RELATING TO THIRD PARTY RIGHTS (INCLUDING, WITHOUT LIMITATION, PROPRIETORY OR INTELLECTUAL PROPERTY RIGHTS), AND TWTRLAND’S BREACH OF WARRANTIES.
Third Party Integration. The software and Services provided by Twtrland under this Agreement may rely on, or require, integration with third-party services, such as data or analytics provided by third-party social networks. Twtrland does not control, and is not responsible for, such third-party services, and shall have no liability for any failure or degradation of such third-party services beyond Twtrland’s reasonable control. The independent modification of such third-party services could adversely impact the functionality or quality of services provided through the Services or by Twtrland which depend on such third-party services, and Twtrland shall not have any liability or responsibility (including to provide any refunds) if such adverse impact occurs.
Limitation of Liability. EXCEPT FOR (A) LICENSEE’S VIOLATION, INFRINGEMENT OR MISAPPROPIATION OF TWTRLAND’S INTELLECTUAL PROPERTY OR PROPIETORY RIGHTS, (B) LICENSEE’S VIOLATION OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR (C) LICENSEE’S INDEMNIFICATION OBLIGATIONS: (I) NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENTSHALL EXCEED THE TOTAL AMOUNT OF LICENSE FEES PAID BY LICENSEE TO TWTRLAND DURING THE TWELVE (12) MONTHS PRECEEDING THE DATE THE LIABILITY FIRST ARISES AND (II) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Term. The Term of this Agreement is as set in the applicable Order Form.
Termination. Termination of this Agreement shall be according to the terms detailed in the applicable Order Form. Either party may terminate this Agreement at any time by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. No refunds will be provided under any circumstance during or after the termination of the Agreement, except as explicitly provided in this Agreement. Upon termination of this Agreement for any reason whatsoever, Licensee will immediately cease use of the Services and return all Confidential Information to Twtrland and destroy or return (including causing third parties to destroy or return) to Twtrland, at Twtrland’s discretion, all Twtrland’s Data. Licensee’s obligations that, by their nature and content, must survive the termination of this Agreement in order to achieve their fundamental purposes shall so survive. Sections 2 (Intellectual Property Rights & Restrictions), 6 (Confidentiality), 9 (Further Requirements), 10 (Third Party Integration), 11 (Limitation of Liability), 13 (Consequences of Termination), 14 (Governing Law), 15 (Arbitration) and Licensee’s payment obligations shall survive any termination of this Agreement.
Governing Law. This Agreement shall be deemed to have been made in the State of California and shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the England & Wales, without reference to principles of conflicts of laws thereof.
Arbitration. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in front of a single arbitrator, under the Rules of Arbitration of the London Court of International Arbitration, which rules are deemed to be incorporated by reference into this clause. The seat, or legal place, of arbitration shall be New York, New York. The language to be used in the arbitral proceedings shall be English. Notwithstanding the foregoing, either party may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement.
Publicity: Both parties shall be permitted to use the names and/or logos of the other party in publicity releases, advertising, or similar marketing activities without the prior written consent of the other party. Nothing herein shall limit either party from disclosing the terms of this Agreement to potential financing sources, security holders, strategic partners and advisors.
Assignment. Licensee may not transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of Twtrland. Twtrland may assign this agreement in whole or in part at its discretion.
Entire Agreement. This Agreement and any Exhibits hereto constitutes the entire agreement between Twtrland and Licensee and supersedes any previous agreements or representations, either oral or written with respect to the subject matter of this Agreement. All amendments may be made only in writing. The parties shall be deemed independent contractors.
No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the parties. In no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.
Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
Severability. If any provision under this Agreement is determined by a court to be unenforceable, that provision will be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted, and the remainder of the Agreement will continue in effect.