TWINE LIMITED CUSTOMER TERMS SERVICE (these “Terms of Service”)
Version 004 October 2018
Welcome to the Twine Service. Thank you for using the Service. By using the Service, you are agreeing to the following Terms of Service. Please read them carefully and be sure to check back on the Twine website in case anything changes.
Definitions and interpretation in this Agreement:
- the following terms shall have the following meanings unless the context otherwise requires:
- references to "Clauses" are to clauses of these Terms of Service;
- the headings are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
- words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
- references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 15) includes in electronic form;
- references to "includes" or "including" or like words or expressions shall mean without limitation;
- references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
- references to “Twine” or the “Customer” or a “Party” shall include their respective directors, employees, subcontractors, servants and agents and their successors in title and permitted assigns.
Administrator And Service Set-up
- The Customer shall appoint at least one person to act as the Administrator who shall be the main point of contact with Twine for access to the Service. The Customer shall ensure that such person has authority to act on the Customer’s behalf as the Administrator and has authority to change the Customer’s access requirements, provide Account Information, archive previous Users who are no longer Users, add and liaise with new Users, order and obtain Customisations, liaise with Twine about Support Services and deal with Fee enquiries on behalf of the Customer. The Customer shall also ensure that such person is someone who has a sufficient proficiency of IT skill and understanding in order to be able to fulfil this role.
- The Customer shall ensure that the Administrator informs Twine without delay (in such form as Twine shall reasonably require) of any change to the Account Information.
- The Customer shall (and shall procure that the Administrator on its behalf shall) review and select features and make Customisations appropriate to the Customer in such form as Twine reasonably requires. If the Customer prefers, the Customer may request Twine to make the Customisations on its behalf as Consultancy Services in exchange for paying a Consultancy Services Fee to Twine.
- The Customer shall (and shall procure that the Administrator on its behalf shall) fully supply all Account Information required by Twine and to enable the Customer and Users to access and use the Service. The Customer shall ensure that the Account Information is at all times true, accurate, current and complete in all respects; and that each registered User represents a unique individual with no sharing of usernames or passwords.
- The Customer shall ensure that it has obtained all necessary authorisations and consents (including from Users) to enable it to provide the Account Information to Twine and for Twine to use the same as contemplated by this Agreement.
- The Customer acknowledges and accepts that Twine may use the Account Information of Users to contact the Users directly in relation to the Service.
Registration and Password
- To use and access the Service, Users must be registered for the Service by Twine, have (themselves or through the Administrator) provided to Twine all the information reasonably required by Twine prior to use including agreement to the User Rules, and have passwords. Each User can choose a password to access the Service. The Customer shall be responsible for the safekeeping of passwords and maintaining the confidentiality of the same and the Customer shall procure that the Users comply with this Clause 3.
- The Customer shall procure that each User agrees to, and does, conform to the relevant User Rules. Twine reserves the right to discontinue a registration or to disable access and use of the Service (whether individually or generally) where any User fails to comply with such terms.
- The Customer shall procure that each User is fully responsible for all information, uploading and activity arising from access to the Service via their passwords. The Customer shall ensure that use of each password is strictly limited to the relevant User to whom it was allocated.
- The Customer shall (and shall procure that the Users) notify Twine immediately of any unauthorised use of any password or other breach of security of which the Customer becomes aware.
- The Customer shall indemnify Twine against any and all liabilities, claims, losses, damages, demands, charges, costs, and expenses (including legal expenses) that Twine suffers as a result of any access or use of the Service:
- via the passwords used by the Customer’s Users; or
- due to any behaviour or misbehaviour of any User; or
- arising out of access to the Service by any person due to the Negligence, bad faith or fraud of the Customer (including any Administrator).
- The Customer shall do all it can to ensure that no one impersonates a User and the User does not impersonate any other person or use a false name or a name that he is not authorised to use to access the Service. Twine shall assume that where a valid password has been entered on behalf of the Customer then the Service is being accessed by the User to whom that password has been allocated. The Customer shall do its utmost to prevent such User from giving any password to anyone not registered as a User.
- The Customer shall use all reasonable endeavours to ensure that Users choose sufficiently strong passwords that cannot be readily guessed.
- If the User forgets their password, the Administrator may re-issue a new password and inform Twine by accessing the Service and Twine shall re-send the password to the Administrator.
- In consideration of, and subject to, the continuing timely payment of the Subscription Fee and the Customer’s compliance with the terms of this Agreement, Twine hereby grants to the Customer, a non-exclusive, non-transferable licence during the Subscription Terms:
- to access and use the Service in the normal course of Customer Group business; and
- to grant a sub-licence to Users to access and use the Service for normal Customer Group business, providing any such access is subject to the same restrictions on use and otherwise as are applicable to the Customer in this Agreement and each User first agrees to the User Rules.
- The Customer shall not allow anyone other than an employee, officer, contractor, consultant or representative of the Customer Group as authorised by Twine to access the Service.
- The Customer shall not permit or authorise any person who is not registered as a User with Twine to access or use the Service. The Customer shall not permit any person who is not registered as an Administrator with Twine to be its Administrator.
- The Customer shall permit access to the Service to no more than the number of Users in respect of whom the Customer has paid Subscription Fees.
- The Customer shall permit Twine and Twine’s representative at all reasonable times and on reasonable prior written warning to make such inspections and monitor the Customer's and Users’ use of or access to the Service (whether remotely or not) to verify that the Customer and Users are complying with the terms of this Agreement and the User Rules.
- If the Customer or its Users are in breach of any of Clauses 3, 4, 5, 10 or 12 or any of them is misusing the Service or Twine’s Intellectual Property Rights or this Agreement has been suspended or terminated, then Twine may disable access to any of the Service at any time and without notice and by any means (whether by use of a code or disabling access on its servers or remotely).
- In consideration of, and subject to, the continuing timely payment of the Subscription Fee and the Customer’s compliance with the terms of this Agreement, Twine hereby grants to the Customer, a non-exclusive, non-transferable licence during the Subscription Terms:
Access and Use of the Service
- Twine may update the Service and issue new versions of it from time to time and add to, amend or remove the features and functionality. Where this may impact on any Customisations, Twine shall inform the Customer and (where reasonably possible) any discontinuance shall only take effect as soon as the then current applicable Subscription Term ends.
- Twine may change the User Rules from time to time and post the amended User Rules via the Service on the Website. The Customer shall be responsible for accessing the latest version of the User Rules from the Website and updating its Users of the same.
- The Customer acknowledges that Twine provides the Service on the basis of shared servers, infrastructure and storage disks. The Customer is not entitled to have dedicated servers, infrastructure or storage disks unless the Parties expressly agree in writing (and the Customer agrees to pay for any additional Fees for such dedicated provision).
- Access to the Service may be suspended or withdrawn from the Customer or the Users temporarily or permanently at any time and without notice. Twine may also impose restrictions on the length and manner of usage of any part of the Service for any reason. If such restrictions are imposed, the Customer shall not attempt to use the Service and shall procure that the Users so restricted shall also not attempt to use the (relevant part of the) Service.
- The Customer acknowledges that from time to time Twine may need to carry out maintenance of the Service, and that it may be necessary for access to some or all of the Service to be temporarily suspended. Twine shall use its reasonable commercial endeavours to ensure maintenance is carried out outside of Business Hours and with at least two Business Days’ prior written warning and with as little disruption as reasonably practicable as to the ability of the Customer and the Users to access and use the Service. Twine shall, in any event, be entitled to suspend, restrict or terminate access to the Service or to modify any part of the Service for any reason at any time.
The Customer shall (and shall procure that the Users shall) only use the Service in a manner which is consistent with this Agreement and in such a way as to ensure:
- use of the Service is in accordance with the latest User Rules in force from time to time and this Agreement;
- compliance with all applicable laws, regulations, bye-laws, codes or practice, licences, permits, authorisations and registrations;
- they do not interfere with any other person’s use of the Service or otherwise act in a way that negatively affects another customer’s or user’s or third party’s use of the Service;
- they do not cause the whole or part of the Service to be interrupted, damaged, rendered less efficient or in any way impaired for the Customer or Users or any third party;
- they do not upload or transmit or introduce anything designed to interfere with, interrupt or disrupt the normal operating procedures of the Service, including by placing an unreasonable or disproportionately large load on Twine’s infrastructure or actual or attempted interference with security;
- they do not upload or transmit through the Service any Content or Data which is misleading, defamatory, in breach of confidence, in contempt of court, discriminatory, harassing, malicious, pornographic, offensive or of an obscene or menacing character or which in Twine’s judgement may cause annoyance, inconvenience or anxiety to any person and can result in any Users or the Customer (or any person so authorised by Twine) being prevented from accessing the Service in the future, or any part thereof;
- the Service does not receive spam, viruses, spy ware or other unauthorised items, by installing and keeping updated an effective anti-virus program on the computer used to access the Service. Should Twine detect that the computer being used by a User is compromising the Service and other Users (or any person so authorised by Twine), Twine reserves the right to immediately withdraw access to the Service by any relevant User and all other Users of the Customer;
- they do not use the Service in any way which involves the Customer’s use, delivery or transmission of any viruses, unsolicited emails, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
- they do not do anything contrary to Twine’s interests.
- Without prejudice to its other rights and remedies, Twine may remove any information that the Customer or any User transmits, posts, uploads or downloads at its sole discretion without notifying the Customer if Twine reasonably suspects any breach of Clause 5.6.
- The Customer acknowledges that the Service will be accessed and used by Users via the Internet and the Customer shall be responsible for ensuring that it can comply with Twine’s requirements and specifications for access and use of the Service issued by Twine from time to time (including the browser and firewall settings and specifications required for access to, and use of, the Service).
- To use the Service, the Customer shall ensure that it obtains and pays for the necessary hardware, equipment, telephony and other telecommunication links that are required or desirable to access and use the Service.
- Twine may provide solutions within the Service that allows access to the Service via mobile devices, out of convenience for the Customer and Users. It is the Customer’s responsibility to ensure that it has appropriate policies and procedures in place to ensure that all Users keep the mobile devices safe and secure.
- Twine shall provide solutions for the Customer to use to obtain reports, Data and back-ups, and the Customer shall be responsible for obtaining reports, Data and back-ups as much and as frequently as the Customer desires within the parameters made available by Twine.
- If the Service is accessed or used outside of the UK, the Customer shall ensure that what the Customer and Users do in that country is legal and they shall ensure that the Service and their use of it complies with all applicable laws, regulations, byelaws, codes of practice, licences, registrations, permits and authorisations in that country. Use of the Services outside of the UK is entirely at the Customer’s risk and Twine makes no warranty or representation that the Services are suitable for use there.
- Twine warrants that:
- it has the right to enter into this Agreement and to grant the Customer a right to access and use the Service;
- it shall provide the Consultancy Services and Support Services with reasonable skill and care and using staff of suitable training and skill and in conformance with generally recognised commercial practices and industry standards; and
- it shall provide the Service to the Customer in a professional, competent and workmanlike manner with at least reasonable skill and care and using staff of suitable training and skill and in conformance with generally recognised commercial practices and industry standards. This warranty is subject to the Customer and Users:
(a) properly complying with the User Rules;
(b) having not misused the Service in any way or used the Service for any purpose other than the purposes for which the Service was designed;
(c) having not used or accessed the Service for any unlawful or improper purpose;
(d) having not breached this Agreement; and
(e) having not infringed any third party rights in their use of the Service.
- Twine does not warrant that the Service will meet the Customer’s (or Users’) present or future needs or requirements or that the Service will be complete, error-free or wholly accurate or that it will be delivered without interruption, fault or error. For the avoidance of doubt, the Customer is responsible for the use, selection and suitability of the Service for its needs and objectives, including any Customisations.
- Twine has the Service hosted on more than one site through a service layer using mirroring to avoid a single point of failure and with the aim of avoiding the Service going down. The Service is designed so that it provides as close to 99.8% availability as possible to Users during Business Hours and Twine shall use its reasonable commercial endeavours to maintain and monitor the Service so that the Service is available during Business Hours (other than for planned maintenance, or unscheduled maintenance outside of Business Hours). It may be necessary to suspend or restrict the Service at any time for any reason including for any urgent or planned maintenance or introduction of new functionality or features. Other than as expressly agreed in this Agreement, Twine does not warrant that the Service (or any Users’ access to it) will be uninterrupted, timely or error-free or that it will be available at any particular speed or that it will meet the individual requirements of the Customer.
- Although Twine uses appropriate firewall, virus and content filtering software and has in place security measures for the protection of Users, Twine cannot guarantee 100% security and shall not have any Liability for damage to, unauthorised access to, or viruses or other code that may affect, any computer equipment, software, data (including the Data) or other property as a result of the Customer’s or Users’ or any other person’s access to or use of the Service or the Customer’s or Users’ obtaining any material from, or as a result of using, the Service. Twine shall also not have any Liability for the actions of third parties in breaching any security measures.
- Although Twine shall take back-ups in accordance with its standard practice, the Customer shall be responsible for taking further back-ups if it wants to ensure that it has sufficient back-ups with the frequency it needs for its particular requirements. In the event of loss, damage, theft, corruption, deletion or misuse of Data or Content, the Customer’s sole and exclusive remedy is for Twine to use its reasonable endeavours to obtain and restore the Data and Content from its latest back-ups.
In the event of Twine’s breach of Clause 6.1.3, Twine shall at its option (and as the Customer’s exclusive remedy) either:
- repair, modify or alter any part of the Service or its software to correct any problems in accordance with the Support Services; or
- refund or not require to be paid all or a reasonable part of the Subscription Fee.
Prior to Twine providing the remedies under Clause 6.6 or in respect of any remedy pursuant to a breach of Clause 6.1.2 or prior to providing the Support Services, the Customer shall:
- provide Twine with full details of the errors or defects as soon as it is reasonably able upon becoming aware of the problem; and
- provide Twine with full information, assistance and co-operation to resolve the problem as is reasonable in the circumstances.
Twine disclaims all Liability for:
- any problems caused by the Customer’s or its Users’ equipment, software, hardware, telecommunications links, network or Content or any incompatibility of them with the Service;
- any technical problems including errors or interruptions of the Service, provided that Twine has used its reasonable endeavours to correct the errors or interruptions if within Twine’s responsibility (and not, for example, general Internet or utilities problems);
- any Content;
- any lack of provision of the Service to the extent caused by its compliance with any requirements of the Customer, User or authorised third party requiring Twine not to process the Data; or
- anything caused by breach of this Agreement by the Customer, misuse of the Service by the Customer or any User or failure to follow the User Rules.
- Twine is not responsible for any services, software, hardware, equipment, communications, customisations, changes or tailoring except to the extent expressly stipulated in this Agreement or otherwise agreed in writing by Twine that Twine will provide them.
- Other than the warranties given in this Clause 6, to the fullest extent permitted by law, any warranty, guarantee, representation, condition or other term (whether express or implied by statute, common law or otherwise) is hereby excluded.
- Twine warrants that:
- The Customer shall procure that the Administrator is fully trained in relation to the Service and is on hand at all times to provide first-level support to Users. For any support that the Administrator is unable to provide to a User and which relates to the Service (and not anything outside the scope of Twine’s remit, such as the Customer’s equipment, software, hardware, telecommunications links, network or Content), Twine shall provide second-level support services to the Administrator via Twine’s stated contact details for support from time to time. This is available and (subject to the other provisions of this Clause 7 and provided that the Customer is not late in paying any other Fees) available in English during Business Hours at no extra Fee. If Twine agrees to provide any support services beyond those required under this Clause 7, Twine may charge for those services at its then standard rates.
- Twine shall use its reasonable commercial endeavours to answer any queries or issues the Administrator may have or report about the Service and its usage with the objective of enabling the Customer to use the same during Business Hours. Twine shall use its reasonable endeavours to provide a response during the Business Hours within the Service Level Table following logging the query. Twine may (but shall not be obliged to) provide a telephone message facility or email support reporting facility outside of Business Hours.
Twine is not obliged to provide any technical support for any technical problems the Customer or a User might have in using the Service relating to the following:
- any incompatibility of the Service with any of the Customer’s or User’s equipment, software, hardware, telecommunications links, network or Content;
- any technical problems including errors or interruptions of the Internet;
- any inadequacy of the Service to meet the Customer’s specific requirements other than any Customisations created under this Agreement; or
- any problem caused as a result of the Customer’s or User’s breach of this Agreement or the User Rules.
- Where someone other than the Administrator contacts Twine without Twine’s agreement, or the Administrator contacts the Twine about a problem relating to the Service and Twine identifies that the problem is a result of the Customer’s own equipment, software, hardware, telecommunications links, network or Content or anything covered in Clause 7.3, then Twine reserves the right to charge the Customer and the Customer shall pay the Rates for Twine’s time in dealing with the Customer’s query together with Twine’s costs and expenses for the same.
- Twine shall use its reasonable endeavours to attain the target response times and target fix (or workaround) times, as set out within the Service Level Table, with such times to be provided within Business Hours, and where the time between the Business Hours ending on one Business Day and starting on the next Business Day do not count in this calculation, so that the timeframes finish at the end of Business Hours on one Business Day and start again at the start of Business Hours on the next Business Day.
- The Service Level Table also sets out the Service Credits due to the Customer in respect of any failure of Twine to achieve any Service Levels within any particular calendar month. The Service Credit represents a deduction of the percentage of the Subscription Fee due to Twine in that particular month. Each incident that misses any Service Level has the percentage Service Credit set out in the Service Level Table for that Service Level. Twine shall be liable for the Service Credit for each occasion that a single fault is not addressed, so if (for example) a severity level 1 problem is not fixed within up to four Business Hours then Twine refunds 10%, but if that same incident is still not fixed beyond eight Business Hours then a further 10% is refunded. The maximum amount of Service Credits due cumulatively for all incidents in aggregate, in respect of any one month, is 100% of the Subscription Fees for that month. Subject to Clause 9.2, and to the extent permitted by law, this Clause 7.6 sets out the entire Liability of Twine for any failure to achieve any Service Levels.
The Service Level Table is as follows:
Severity Level Target Response
Time during Business Hours (from when the incident is received and logged by Twine)
(or Workaround) Time during Business Hours (from when the incident is received and logged by Twine)
per failure to meet the Service Level
of Service Level
1 1 4 10% Complete failure resulting in the Service being off-line and unavailable. 2 1 8 10% Complete sections of the Service with specific pages or functions unavailable. 3 4 16 5% Identified bugs in the Service which do not cause the Service to be unusable but which need to be remedied as to materially work as Users would expect. 4 8 32 5% Any other matters in the Service not falling within the categories above.
- Twine shall manage the dealing of any incident, and shall issue a ticket to the Administrator. Twine shall assign the severity level (where reasonably practicable in consultation with the Customer).
- If there is a Severity Level 1 issue (as described in the Service Level Table) and this has not been fixed within the target fix time in the Service Level Table, the Parties shall have an emergency discussion to seek to resolve it.
- Twine shall provide to the Administrator a report for any Severity Level 1 issue (as described in the Service Level Table) that has been fixed, describing the problem, its cause, the actions taken and by when and by whom, conclusions and lessons learned.
The Customer shall report any issues and any changes in the issue to Twine immediately.
The following table shows the reporting and escalation procedure in respect of Twine’s provision of support services to the Customer:
Severity Level Frequency/timing
following Twine’s initial response
1 Every Business Hour until resolved. 2 Every two Business Hours until resolved. 3 Every three Business Hours until resolved. 4 Every four Business Hours until resolved.
- The application of Service Levels and Service Credits described in this Clause 7 may be subject to any assumptions or dependencies stipulated by Twine to its customers generally from time to time, or as agreed in writing between the Parties; including as to bandwidth, data storage, data transfer (up or down), maximum simple/static pages served per minute, maximum complex pages served per minute, and any other metrics within the Service. The provisions of this Clause 7 (including any Service Credits) are subject to this Clause 7.13.
Fees and Payment
Unless the Schedule provides otherwise:
- the Subscription Fees shall be calculated according to the number of Users who at any time in that month were registered (and not archived); and
- all other Fees shall be payable according to the time actually spent by Twine, at the Rates then in force when the time was spent.
Unless the Schedule provides otherwise:
- Twine shall issue invoices to the Customer for the Fees calendar monthly in arrears; and
- the Customer shall pay Twine for the Fees within 30 days of the date of Twine’s invoice.
- In respect of any calendar month during this Agreement where the Subscription Fees are payable for less than a full month (such as the first month of the first Subscription Term if the Service is only accessible after the first day of the month), the amount payable in respect of that month shall be calculated on a pro rata daily basis according to the Subscription Fees for a full month, reduced according to the total number of days for which no Subscription Fees are payable.
- Twine may update the Fees and the Rates from time to time by providing the Customer with at least four months’ prior written warning of the change, such change to take effect at the commencement of the next Subscription Term.
- All sums due to Twine are exclusive of VAT and other duties or taxes (if applicable) which the Customer shall pay to Twine in addition at the same time as payment of the Fees.
- Payment shall be in the currency of England from time to time.
- Payment of all sums due under this Agreement shall be made by the Customer without any set-off, deduction or withholding whatsoever.
- The Customer shall pay Twine for the Fees by electronic transfer to Twine’s bank account or by any payment method reasonably stipulated by Twine.
- No payment shall be considered to be paid until it is received in cleared funds.
- If the laws of any part of the territory where the Customer is based requires the Customer to withhold tax on any payment which the Customer is obliged to make to Twine under this Agreement, the Customer shall:
- obtain a proper receipt and discharge for the tax so deducted and forward it without delay to Twine;
- do all such other things and take such other steps as may be reasonably required to enable Twine to obtain any tax credit which may be available to it; and
- in the event that any taxes deducted cannot be reclaimed, make up to Twine any shortfalls in payment attributable to such tax deductions.
- If the Customer is late in paying any part of any monies due to Twine, Twine may (without prejudice to any other right or remedy available to it whether under this Agreement or by any statute, regulation or by-law) do any or all of the following:
- charge interest and other charges on the amount due but unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
- other than as set out in Clause 8.11.3, suspend the performance of this Agreement and any other agreement between Twine and the Customer until payment in full has been made; and
- notify the Customer that it is suspending the Customer’s access to the Service with immediate effect until Twine receives the outstanding Fees in full, provided that Twine has given the Customer at least seven days’ notice that the Service will be suspended if the outstanding Fees are not paid in full.
- Unless the Schedule provides otherwise:
Limitation of liability
- This Clause 9 prevails over all other Clauses of this Agreement and sets out Twine’s entire Liability and the Customer’s sole and exclusive remedies in respect of Twine’s performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or otherwise in relation to this Agreement or entering into this Agreement.
Twine does not exclude or limit Liability for:
- death or personal injury caused by its Negligence; or
- its fraud; or
- fraudulent misrepresentation, or to any other representations that it would be unreasonable in law to exclude; or
- its breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
- any other Liability which cannot be excluded or limited by applicable law.
- Subject to Clause 9.2, Twine shall not have any Liability for any: a) indirect or consequential losses, damages, costs or expenses; b) loss of actual or anticipated profits; c) loss of use of money; d) loss of revenue; e) loss of goodwill; f) loss of reputation; g) loss of business or contracts; h) ex gratia losses; i) loss of operation time; or j) loss of opportunity; suffered by the Customer or any User or suffered by any person who uses or accesses the Service, the Content or any materials uploaded via the Service; whether or not such losses were reasonably foreseeable or Twine had been advised of the possibility of any such person incurring such losses. For the avoidance of doubt, this Clause 9.3 applies whether such losses are direct, indirect, consequential or otherwise.
- In this Agreement:
- “Liability” means liability in or for breach of contract, Negligence, misrepresentation, restitution, intentional tort, deliberate acts or omissions, or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to this "Agreement" shall be deemed to include any collateral contract); and
- “Negligence” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
- Subject to Clause 9.2, the total aggregate Liability of each Party for all causes of action arising in each calendar year under this Agreement shall be limited to the greater of: (a) £10,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by the Customer to Twine in that calendar year under this Agreement.
- The limitations and exclusions of Liability under Clauses 9.3 and 9.5 have effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
- Without prejudice to Clauses 9.3 and 9.5, the Customer acknowledges and accepts that Twine provides the Service to it on the express condition that Twine will not be responsible for nor shall it have any Liability to the Customer or any third party directly or indirectly for:
- inaccuracies or errors or omissions in the Content or in any Content;
- late arrival or non-arrival of any messages containing Content;
- failure by the Customer or a User to have in place all necessary means to gain access to the Content or for sending and receiving messages containing Content; or
- failure by the Customer to maintain all equipment, software, hardware, telecommunications links and network to enable it to send and receive messages containing Content or use of the Service.
- Each Party shall keep and procure to be kept secret and confidential the Confidential Information of the other Party and shall not use nor disclose the same save:
- for the purposes of the proper performance of this Agreement; or,
- as otherwise permitted by this Agreement; or
- with the prior written consent of the other Party.
- Where one Party discloses Confidential Information of the other Party to its representative, employee, consultant, subcontractor, supplier, customer, User, agent, professional adviser or insurer, it shall do so on a need-to-know basis and subject to obligations equivalent to those set out in this Clause 10. Each Party shall use all reasonable endeavours to ensure that any such representative, employee, consultant, subcontractor, supplier, customer, User, agent, professional adviser or insurer complies with such obligations.
- The obligations of confidentiality in this Clause 10 shall not extend to any matter which either Party can show:
- is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
- was already in its written records prior to receipt; or
- was independently developed by it; or
- was independently disclosed to it by a third party entitled to disclose it.
- If either Party is required to disclose the Confidential Information of the other Party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then the Party required may disclose the Confidential Information to the extent required but shall, prior to any disclosure where practicable, give the other Party as much warning as practicable and consult with the other Party in writing and, at the other Party's request and cost, fully co-operate with and assist that other Party in opposing any such disclosure.
- Neither Party shall make any announcement of any kind in respect of the subject matter of this Agreement except with the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed) or as is required by law.
- Subject to Clause 10.5, Twine may identify the Customer as its customer and the type of services provided by Twine to the Customer, provided that in doing so Twine shall not (without the Customer's prior written consent) reveal any Confidential Information of the Customer.
- The obligations of this Clause 10 shall continue after termination or expiry of this Agreement for whatever reason.
- Each Party shall keep and procure to be kept secret and confidential the Confidential Information of the other Party and shall not use nor disclose the same save:
Data Protection and Security
- In performing this Agreement, each Party shall:
- comply with all applicable data protection legislation; and
- procure those employees, agents, consultants and contractors (and, in the case of the Customer, its Users) comply with all applicable data protection legislation.
- Twine is committed to the security of the Service. The Service uses industry standard firewalls, security monitoring, spam and virus controls and encryption. However, the Customer acknowledges that the Service cannot be guaranteed as being 100% secure and that the uploaded information may not be 100% secure. Although Twine shall take measures in accordance with good industry practice, it cannot guarantee the absolute security of the Data, including as a result of actions or omissions taken by third parties.
- Twine shall:
- in accordance with the Data Protection Act 1998, act as “data processor” only on instructions from the Customer as “data controller” in relation to the processing of “personal data” (as all of those terms are defined under that Act) carried out on behalf of the Customer (including the Data) and shall take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to;
- permit access to the Customer and its representatives to Twine’s premises and records at all reasonable times and on reasonable notice to enable the Customer to ensure compliance by Twine with this Clause 11.3. The access right is subject to the Customer and its representatives first agreeing to Twine’s reasonable requirements as to confidentiality and to the Customer and its representatives using their reasonable endeavours to ensure that while they are on Twine’s or its suppliers’ premises they will conform to the normal codes of staff and security practice as are applicable at the premises and keep disruption to a minimum. The Customer acknowledges that if it and its representatives seek access under this sub-Clause 11.3.2 they shall only access the Data in any way such that they cannot and do not see any other data hosted or managed by Twine, as Twine needs to maintain the confidentiality of the data hosted or managed by it; and
- as soon as practicable inform the Customer of any notice or communication concerning data protection legal obligations received from any person (including any data subject or caller) or any regulatory authority (including the UK’s Information Commissioner) concerning the provision of the Service to the Customer and co-operate fully (at the Customer's cost) with the Customer in relation to all relevant matters concerning data protection requirements in connection with the Service.
- The Customer acknowledges that Twine may supply Data in respect of which Twine is acting as data processor for the Customer, to its third party suppliers to whom it sub-contracts the provision of any or all of the Service. Twine shall impose corresponding provisions to this Clause 11 on any such sub-processor.
- The Parties acknowledge that Twine shall not be in breach of this Agreement if required to stop or change, or carry out in a particular way, the use of any personal data by the data subject or data controller or other person and that affects its or its subcontractor’s ability or efficiency in providing any of the services pursuant to this Agreement. The Customer shall be fully responsible for any additional Fees and expenses arising out of Twine so complying with such Customer requirements.
- In performing this Agreement, each Party shall:
Intellectual Property Rights
- The Customer acknowledges that the legal and beneficial interest in Intellectual Property Rights relating to, or developed by Twine or its third party suppliers in connection with, the Service (including any Customisations developed by or on behalf of Twine) and the Twine Brand; belong to Twine and its licensors, whether or not anything is created or adapted at the Customer’s specific request. This includes all Intellectual Property Rights in the Service but does not include the Content, Data, Customer Brand or any information that the Customer or its Users input or upload onto the Service. The Customer shall not alter any proprietary notices.
- Twine acknowledges that the legal and beneficial interest in Intellectual Property Rights relating to or in connection with the Content, Data, Customer Brand, and any information that the Customer or a User inputs or uploads onto the Service; belong to the Customer and its licensors.
- The Customer and its Users shall only use the Service and the Intellectual Property Rights therein (save for any Content or Data) for the Customer Group’s internal purposes and shall not, without Twine’s prior written consent, make available, retransmit, disseminate, sell, license, distribute, publish, broadcast or otherwise circulate any of the Service to any third party.
- Twine shall indemnify the Customer against any costs and losses reasonably incurred by the Customer if a court of competent jurisdiction finds that the Customer’s proper use of the Service infringes the Intellectual Property Rights of any third party subject to the Customer:
- notifying Twine promptly of such claim and in any case within 30 days of receiving notice of it;
- making no admission of liability without Twine its prior written consent;
- allowing Twine and its licensors to conduct and to settle all negotiations and litigation arising from such claim;
- accepting that all costs incurred and recovered in such negotiations and litigation to be for Twine’s account only; and
- giving Twine, at Twine’s request, all reasonable assistance with such negotiations or litigation, with the Customer’s reasonable out-of-pocket expenses to be borne by Twine.
- The indemnity in Clause 12.4 shall not extend to:
- any claim insofar as the same arises due to the use of the Service in breach of this Agreement (other than a breach by Twine);
- the use of the Service in combination with any software, material, equipment, products or devices not supplied or approved in writing by Twine or due to modification of the Service by anyone other than Twine; or
- any claim to the extent that the same arises due to the Data or Content.
- Subject to Clause 9.2, Clauses 12.4 and 12.5 set out Twine’s entire Liability in respect of any infringement of any third party’s Intellectual Property Rights in the Service.
- If an infringement, threatened infringement or claim occurs in relation to the Service, or if Twine considers that such a claim is likely to occur Twine shall have the right at its sole discretion to either:
- procure the right or licence for the Customer to use the Service free of the infringement claim; or
- modify or alter any part of the Service or its software to make the Service or any part thereof non-infringing; or
- terminate that part of the Service or remove the part of the Service which relates to the infringement (or potential infringement) and return any Fees paid by the Customer for that part of the Service; or
- if none of these options is reasonably practicable, terminate this Agreement and return a reasonable level of Fees paid by the Customer for the affected Service.
Term and Termination
- This Agreement shall commence on the Commencement Date and (subject to earlier termination under this Agreement) shall continue until the end of the Subscription Term and shall automatically renew for successive Subscription Terms unless terminated by either Party giving no less than three months’ notice to the other Party, such notice to end on the last day of the Subscription Term within which notice was given.
- The Customer may terminate this Agreement by no less than seven days’ notice to Twine, such notice to take effect in or at the end of the first month of the first Subscription Term.
- Either Party may by notice to the other Party terminate this Agreement with immediate effect if:
- the other Party is in material breach of any of its obligations under this Agreement which are incapable of remedy;
- the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement after having been required in writing to remedy such breach within a period of no less than 30 days; or
- the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
- Twine may by notice to the Customer terminate this Agreement with immediate effect if the Customer materially (or in Twine’s reasonable opinion persistently) breaches the terms of Clauses 3, 4, 5, 8, 10 or 12 or fails to pay any sums due to Twine.
- Upon termination or expiry of this Agreement:
- the Customer shall immediately cease using any password in relation to the Service and procure that the Users do the same;
- the Customer shall be responsible for obtaining its own copy of the Content and Data in the form permitted through the Service and Twine shall not be responsible for the migration of the Customer’s Content or Data from the Service to another portal or service provider; but (if reasonably requested and subject to paying Twine’s reasonable Fees to do this) Twine shall use its reasonable commercial endeavours to store the Customer’s Content and Data from the Service on a computer readable storage device and then supply the same to the Customer (provided that the Customer is up-to-date with payment of all sums due to Twine). After a period of three months following the termination or expiry of this Agreement, Twine may delete all Content and Data and it is the Customer’s responsibility to ensure that it obtains any Data required before this time; and
- each Party may at its option require the other Party to promptly delete the Confidential Information of the Party requiring the action and Twine may require the deletion of all materials allowing access by the Customer or its Users to the Service from any computer disks, tapes, memory, storage or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any materials allowing access to the Service. Each Party may require an authorised representative of the other Party to provide a written declaration, signed by an officer or other authorised individual, stating that there has been full compliance with this Clause 13.5.3.
- Termination or expiry of this Agreement will be without prejudice to any other rights or remedies which the Customer or Twine may be entitled to under this Agreement or at law and will not affect any accrued rights or liabilities of either the Customer or Twine nor the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.
- The provisions of Clauses 1, 8, 9, 10, 12.1, 13, 14, 15, 16, 17, 18 and 19, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Agreement.
The Customer shall at all times indemnify and keep fully indemnified Twine against any and all liabilities, claims, losses, damages, demands, charges, costs, and expenses (including legal expenses) that Twine may suffer or incur as a result of:
- the use or hosting of the Content or Data;
- any infringement of any Intellectual Property Rights of a third party arising from any information, data and materials (including Content or Data) the Customer or a User submits as part of the Service; or
- any breach of Clauses 3, 4, 5, 8, 10 or 12 by the Customer or by a User, or any breach of the User Rules by a User.
- The Customer shall at all times indemnify and keep fully indemnified Twine against any and all liabilities, claims, losses, damages, demands, charges, costs, and expenses (including legal expenses) that Twine may suffer or incur as a result of:
- Any notice required or authorised to be given under this Agreement shall be in writing and shall be served by personal delivery or by recorded delivery or overnight courier or by facsimile addressed to the relevant Party at its address stated in this Agreement or at such other address or facsimile number as is notified by the relevant Party to the other Party for this purpose from time to time or at the address or facsimile number of the relevant Party last known to the other Party.
- Any notice so given by recorded delivery or overnight courier shall be deemed to have been served two Business Days after the same shall have been despatched and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched or an answerback signal received.
- Twine shall not have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances beyond its reasonable control including any act of God, actions or omissions of third parties (including suppliers, couriers, hackers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
- Twine agrees to use its reasonable commercial endeavours to inform the other Party upon becoming aware of an Event of Force Majeure.
- Twine’s provision of the Service shall be suspended during the period that the circumstances of the Event of Force Majeure persist.
- Twine shall be granted an extension of time for performance equal to the period of the delay.
- If performance of any obligations are delayed under this Clause 16, the Customer shall accept performance as and when Twine shall be able to perform.
- If the Event of Force Majeure continues without a break for more than one month, either Party may terminate this Agreement immediately by notice to the other, in which event neither Party shall be liable to the other Party by reason of such termination.
- If Twine has contracted to provide identical or similar services to more than one customer and is prevented from fully meeting its obligations to the Customer by reason of an Event of Force Majeure, Twine may decide at its absolute discretion which contracts it will perform and to what extent.
- Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Agreement, Twine may assign, transfer, novate or subcontract its rights, liabilities or obligations under this Agreement either in whole or in part to any other person, firm or company.
- The Customer shall not (or purport to) assign, sub-license, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Agreement or any of its rights, liabilities or obligations under this Agreement without the prior written consent of Twine (such consent not to be unreasonably withheld or delayed).
- This Agreement contains all the terms agreed among the Parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as expressly stated in this Agreement. Neither Party shall have any remedy in respect of any untrue statement made by the other Party upon which that Party relied in entering into this Agreement (unless such untrue statement was made fraudulently or as to a fundamental matter) and that Party's only remedies shall be for breach of contract as provided in this Agreement.
- This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
- The terms of this Agreement apply to the exclusion of any Terms of Service submitted, proposed or stipulated by the Customer whether such Terms of Service are contained in the Customer’s purchase orders, documents or otherwise. This Agreement shall apply to the Service and the Consultancy Services and Support Services and shall override all other Terms of Service that are inconsistent with this Agreement whether express, implied or otherwise.
- Twine may update these Terms of Service for its customers generally by providing the updated Terms of Service to its customers (whether electronically at the Website or otherwise in writing). Subject to Clause 18.5, such updated Terms of Service shall apply by no less than four months’ prior written warning (after they were first posted on the Website or sent in writing to the Customer), to take effect at the beginning of the next Subscription Term. The Customer shall be responsible for checking the Website for any important announcements including changes to these Terms of Service.
- Twine may make emergency changes to the Terms of Service (and inform the Customer of this, including through a post on the Website or otherwise in writing) without prior notice to comply with any law, court order or legal requirement or in case it needs to do so in order to comply with the requirements of any subcontractor who assists Twine with the provision of the Service (including hosting facilities). Where reasonably practicable, Twine will endeavour to give reasonable prior warning.
- Subject to Clauses 18.4 and 18.5, no change to the specific terms of this Agreement shall be binding unless it is agreed in writing by each of the Parties.
- If the Customer provides Twine with a purchase order, this shall be purely for the Customer's administrative purposes only and shall not form part of this Agreement.
- This Agreement shall be legally formed and the Parties shall be legally bound when both Parties have agreed in writing to the relevant Schedule (which may be either both Parties signing a written Schedule in hard copy form or Twine’s receipt of the Customer’s electronically submitted Schedule). In any event, the use or access of the Service by the Customer or any User shall constitute acceptance of these Terms of Service.
- In the event of any conflict between the provisions within any of the documents within this Agreement, then the Schedule shall prevail over these Terms of Service (except to the extent that the Parties expressly agree in writing that a particular provision within the Schedule shall be over-ridden or changed).
- The relationship of the Parties is that of independent contractors dealing at arm's length. Except as otherwise stated in this Agreement, nothing in this Agreement shall constitute the Parties as partners, joint ventures or co-owners, or constitute either Party as the agent, employee or representative of the other Party, or empower either Party to act for, bind or otherwise create or assume any obligation on behalf of the other Party, and neither Party shall hold itself out as having authority to do the same.
- Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Agreement or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party's other powers, rights or remedies under this Agreement or at law.
- If any Clause or other provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.
- This Agreement does not and is not intended to confer any rights to any third party. A person who is not a Party to this Agreement has no rights under the Contracts (Rights of Third parties) Act 1999 to enforce any term of this Agreement.
- 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 English law. If the Customer is domiciled:
- in the European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Agreement shall be the English courts;
- outside the European Union, any dispute which may arise out of or in connection with this Agreement shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.