The Terms of Service contains all the terms that will govern the relationship between the Parties and the provision of any Services or use of the Portal between:
Social Media Consulting Limited, being a private limited company incorporated in England and Wales under registration number 7358739 (“Social Media”)
AND
Any Company, business, agency, public body or a legal entity of any kind which has accessed our Portal and/or requested the performance of any Services from Social Media (“Customer”) and as designated in the Specific Terms of Service.
The Terms of Service are communicated to the Customer prior to registration and, by clicking on the acknowledgment and agreement dedicated tick box on the Customer registration page, the Customer electronically acknowledges, accepts, and signs the Terms of Service. ACCESS AND USE TO SOCIAL MEDIA SERVICES TRIGGER THE ACCEPTANCE TO BE BOUND BY THESE TERMS OF SERVICE WITHOUT RESERVE.
The Customer agrees that the Customer’s electronic acceptance of these Terms of Service shall have the same force and effect as if the Customer had agreed to these Terms of Service otherwise; and Customer guarantees that the individual person acknowledging and accepting this Terms of Service (“Key Contact”) has the powers to bind the Customer to these Terms of Service.
The Customer acknowledges it has received all the information required to perform the usual diligences permitting to evaluate the necessity, legality, and relevance of the Services for the Customer’s purposes.
The Terms of Services can be found at any time on Social Media’s Site. The version of the Terms of Services applicable to the Customer are those applicable on the day of acceptance, or as modified in accordance with the below Terms of Service.
1. Commencement date, Specific Terms of Service, and amendment to the Terms of Service
1.1. These Terms of Service have commenced and shall be deemed to have commenced on and with effect from either the date of electronic signature of these Terms of Service or the date decided upon between the Parties in the Customer Registration page (“Commencement Date”).
1.2. Specific Terms of Service are an integral part of the Terms of Service. They are defined in the Customer Registration Page and are available at all times in the Customer Profile Page. They include customer-specific information such as: Customer identification, Key contact identification, Billing contact, Commencement date, Services chosen, Authorised Users list, Price applicable, and Payment method.
1.3. These Terms of Service may be updated from time to time by Social Media with 30-days prior notice to the Customer sent by email. If Social Media has not received a termination letter from the Customer within fifteen (15) days since the issuance date of the notice; it is agreed between the Parties that the Customer has accepted the latest Terms of Service. The latest version of the Terms of Service is always available on the Site. By continuing to access or use Social Media’s Services, the Customer agrees to be bound by the latest version of the Terms of service.
1.4. These Terms of Service, or if applicable, the latest Terms of Service govern the relationship exclusively, overriding any other previous agreement the Customer may have previously agreed to except, where the Customer has signed a separate written agreement named “the Agreement” in respect of the Services, that agreement will prevail and govern over the Terms of Service.
2. Services
2.1. Social Media shall provide the following standard services (together “the Service” or “Services”) to the Customer:
2.1.1. The provision of “Online Check Reports” (hereinafter collectively referred to as “Reports”) concerning individuals (hereinafter referred to as “Data Subjects”) within the following 4 products categories:
2.1.1.1. Essential Online Check: This check covers 3 years of the candidate’s online footprint across the most the popular apps, highlighting any risks and adverse behaviours;
2.1.1.2. Premium Online Check: For the most thorough examination, the Premium Check covers everything included in the Essential Check and includes an extended scope of 5 years plus, and a vastly greater online landscape;
2.1.1.3. Adverse Media: Adverse Media Checks examines over 90 online news channels and aggregators. It also covers ethnic online media outlets, many social media platforms, and scrutinises millions of web pages;
2.1.1.4. Advocacy Checks: Advocacy checks identify investigative journalists, animal rights activists, and political advocates;
2.1.2. And a web-based ordering facility (hereinafter referred to as the “Portal”) from which the Customer can request, access and download completed Reports in a pdf or equivalent format in accordance with the Terms of Use; and, if applicable, Customer have access to Reports through an Application Programming Interface (“API”) in its latest technical version (hereinafter referred to as the “API”) under the dedicated API Terms.
2.2. Customer acknowledges and agrees to the following provisions regarding the change in Services:
2.2.1. Customer agrees that Social Media may from time to time adapt and update the format of individual Reports for quality and security purposes without notice. These changes will not affect the substance of the Report.
2.2.2. Customer agrees that Social Media may change the content of the Report with a thirty (30) days’ written notice to the Customer for any intended material change to the services provided.
2.3. Customer acknowledges and agrees to the following provisions service levels:
2.3.1. The Customer knows an order has been duly placed when it has received Social Media’s confirmation email that a request has been placed; or has received an API notification confirming the request has been placed.
2.3.2. Social Media shall provide Customer with Reports within five (5) working days of an request being placed on the Portal by that Customer.
2.3.3. Working days shall generally be defined as 09.00am until 5.30pm Monday to Friday, excluding United Kingdom religious and national holidays.
2.3.4. Due to Social Media being set up to provide Services immediately following completion of the Customer’s request for the Services, the Customer will not be permitted to cancel these requests as provided in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
2.3.5. Standard support services by Social Media shall be generally available in the United Kingdom between 09.00am until 5.00pm Monday to Friday, excluding religious and national holidays. Standard support includes for instance general information about Social Media’s services, and accessibility request.
2.3.6. Additional support requirements and out of hours support may be agreed upon between the Customer and Social Media. Additional support includes for instance specific request by a Customer on an issued Report.
2.3.7. Standard support services within the normal working hours of Social Media shall be provided by Social Media for no additional remuneration. Additional support may be provided at an hourly rate of GBP 120.00 (not including tax).
2.3.8. Social Media defines discretionally what is standard or additional support.
2.4. Whilst Services are provided in good faith and in a professional manner, Social Media does not guarantee or warrant that:
2.4.1. it will find or communicate to the Customer every example or all examples of online internet content about, as applicable the Data Subject;
2.4.2. despite implementing reasonable procedures to ensure maximum possible accuracy, the exactness of the results of the searches it performs and the content delivered by those searches, as the Reports includes third party content over which Social Media has no control which may include information related to a (i) false account representing the Data Subject; or a (ii) hacked account of the Data Subject;
2.4.3. the Services will enable any removal, alteration or improvement of any online internet content about the Data Subject;
2.4.4. any Reports will retain any value, accuracy and/or relevance after delivery.
2.5. Social Media does not guarantee the Services will be operable at all times, or during any down time caused by for example:
2.5.1. outages to any public internet backbones, networks or servers;
2.5.2. any failures of the Customer’s equipment, systems or local access services;
2.5.3. for previously scheduled maintenance; or
2.5.4. relating to events beyond Social Media’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labour conditions, earthquakes, natural disasters, or interruptions in internet services to an area where Social Media’s servers are located or co-located.
3. Customer’s obligations
3.1. CUSTOMER shall support SUPPLIER in a commercially reasonable manner in the context of the ordering process. This shall include (but not be limited to):
3.1.1. Using the Portal or an agreed FTP or API solution for placing all orders in accordance with the applicable Terms; and
3.1.2. Ensuring all required information is provided and accurately included within all orders. CUSTOMER understands that any inaccurate information provided by CUSTOMER to SUPPLIER in the required information fields on the Portal will not trigger the liability of SUPPLIER in any possible way.
3.2. The Customer is responsible for:
3.2.1. complying with all Applicable Laws while requesting, collecting, and using the Services, where “Applicable Laws” shall mean all Applicable Laws, legislation, statutes, statutory instruments, regulations, edicts, bye-laws or directions or guidance from government or governmental agencies which have the force of law whether local, national, international or otherwise existing from time to time including (but not limited to), particularly in respect of data protection and labour laws;
3.2.2. ensuring all required information is provided and accurately included within requests;
3.2.3. any software licences and online subscriptions required for using the Portal and the Site except for any software products supplied directly by Social Media;
3.2.4. maintaining the security of any account and password created or provided as part of the Services. Social Media cannot and will not be liable for any loss or damage from the Customer’s failure to comply with this security obligation;
3.2.5. providing, maintaining and ensuring that all hardware, software, electrical and other physical requirements for the Customer’s use of the Services, including without limitation telecommunications and internet access connections and links, web browsers, bandwidth or other equipment, programs and services required to access the Services, are compatible with the Site and the Services;
3.2.6. retaining legal counsel and obtaining legal advice prior to ordering the services provided by Social Media with regards to the request, obtention, or use of Social Media’s Services.
3.3. Customer agrees and acknowledges that Social Media expressly advises that Customer nor any other party should not use Reports as a sole basis for any decision, whether regulatory, business or otherwise (as the case may be), and that Social Media shall not be liable for any losses suffered as a result of Customer or any other party doing so. Customer accepts and agrees that Social Media does not warrant any decision taken by Customer or any other party as a result of Reports to any extent whatsoever. Further, any Reports supplied by Social Media do not constitute any form of advice, recommendation or endorsement by Social Media and are not intended to be relied upon by Customer or any other party in making or refraining from making any specific decision.
3.4. If, following provision of the Services, the Customer or the Data Subject contacts any third parties, including creators of unwelcome content, hosts of unwelcome content, and other parties who might have control or authority over such content, the Customer recognises that such contact may have unpredictable consequences, including but not limited to negative responses from others.
3.5. The Customer acknowledges that the Services are technology-driven and accepts that errors, bugs, delays and other problems could arise with the Services, as expected in a technology-driven product.
4. Intellectual Property and Proprietary Rights
4.1. All rights, title(s) and interest(s) in the Portal and any Reports provided as part of the Services, including without limitation copyright, trademarks, services marks and other intellectual property rights, is the property of Social Media and is protected by intellectual property laws and international intellectual property treaties.
4.2. The use of the Portal and any Reports issued by Social Media to the Customer are for the confidential use of the Customer, and Social Media does not permit Portal access or distribution of any Reports to any third party, without its express written consent by a duly authorised representative.
4.3. Except as expressly provided hereafter, nothing contained in any Reports or the Portal shall be construed as conferring any licence or right, by implication or otherwise, under copyright or other intellectual property rights, to use the Portal or the Reports through the use of framing or otherwise, without the prior written permission of Social Media.
4.4. Subject to the Customer’s full compliance with these Terms of Service, the Customer is, subject to the other terms of these Terms of Service, hereby granted a non-exclusive, non-transferable, revocable, limited licence to view and use the Portal and to view, download or print the Reports, provided that:
4.4.1. it is solely for the Customer’s own lawful, personal, informational, non-commercial purposes;
4.4.2. the Customer does not remove or obscure any copyright notice or other notices; and
4.4.3. the Portal and the Reports, or any part thereof, is not modified.
4.5. Except as expressly provided herein, no part of the Portal, including but not limited to materials retrieved, their form and the underlying HTML code, may be used, reproduced, republished, copied, reformatted, displayed, reverse engineered, reverse assembled, transmitted, distributed, licensed, sold, resold or exploited in any form or by any means.
4.6. In no event shall materials from the Portal or the Reports be stored in any information storage and retrieval system without the prior written permission of Social Media.
4.7. The Customer understands and agrees that Social Media may alter, suspend or discontinue the Portal, and may change any information, features and functions of the Portal at any time for any reason, without notice, cost or liability.
4.8. The Customer understands and agrees that from time to time the Portal may be inaccessible, unavailable or inoperable for any reason, including without limitation:
4.8.1. equipment malfunctions;
4.8.2. periodic maintenance procedures or repairs which Social Media may undertake from time to time; or
4.8.3. causes beyond the control of Social Media or which are not reasonably foreseeable by Social Media, including without limitation: interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. The Customer acknowledges and agrees that Social Media has no control over the availability of the Site or the Portal on a continuous or uninterrupted basis.
4.9. The Customer acknowledges that the Reports and Portal and any other software of Social Media used by the Customer in respect to procuring, performing or utilising the Services is proprietary to Social Media.
4.10. The Customer acknowledges and agrees that nothing within the Portal or the Reports is, or shall be deemed to constitute, any advice, recommendation or endorsement.
5. Data Protection
5.1. Both Parties shall comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
5.2. Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the United Kingdom including (without limitation) the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (“DPA 2018”); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; together with any Applicable Data Protection Law.
5.3. “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018. For the purposes of § 19, “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “Processing” shall have the meaning prescribed by the Data Protection Legislation. In respect of “Processing”, “Processed” and “Process” shall be construed accordingly.
5.4. “Customer Personal Data” means any Personal Data of which Customer is the Data Controller or which Customer is Processing on behalf of another Data Controller and which is Processed by Social Media as Data Processor on behalf of Customer under or connection with this Agreement (including, without limitation, Personal Data relating to Subjects). For the purposes of this Clause, Data Controller refers to Customer and Data Processor refers to Social Media.
5.5. By placing a request on Social Media’s Portal for Services:
5.5.1. Social Media may process special category data or criminal offence data on behalf of the Data Controller. The Data Controller is advised that to process special category data, the Customer must have an article 6 legal basis and an article 9 legal basis; and to process criminal offence, the Customer must only process criminal offence data if the processing is either: under the control of official authority; or authorised by domestic law;
5.5.2. The Customer has evaluated the necessity, legality, and relevance of the Services by obtaining appropriate legal advice confirming the personal data is processed lawfully, fairly, and transparently with respect to the Data Subject and the Data Subject personal data is collected for specific, explicit, and legitimate purposes, and is adequate, relevant, and limited to what is necessary for the purposes for which it is processed; and
5.5.3. The Customer has necessary and appropriate notices, and/or authorisations in place to enable the lawful transfer of Customer Personal Data to Social Media for the duration and purposes of these Terms of Service and each request for Services. The Customer shall give full information to any Data Subjects of the nature of any Processing of their Personal Data to be undertaken by Social Media under these Terms of Service.
5.6. Social Media shall ensure that:
5.6.1. all personnel who have access to and/or Process such Personal Data are obliged to keep the Personal Data confidential; they have gone through appropriate training and they are made aware of their duties and obligations under the Data Protection Legislation;
5.6.2. all Data Subject requests about his/her individual rights will be referred to the Data Controller as soon as possible and at the latest within (2) business days with all the necessary and available information for the Data Controller to answer the request and will reply to the Data Subject that his/her request has been duly transferred to the Data Controller;
5.6.3. In the event of a data breach, a root cause analysis report depicting a description of the breach including the cause, likely consequences, and the corrective measures implemented shall be communicated to the Data Controller as soon as possible and at the latest within two (2) business days;
5.6.4. the Data Subject’s Personal Data received by Social Media from the Customer is Processed by Social Media in connection with these Terms of Service for the purpose of performing its obligations under these Terms of Service unless otherwise required by law;
5.6.5. it acts on the written instructions of Customer who is the Data Controller (or acts on behalf of the Data Controller);
5.6.6. it shall assist the Customer in ensuring compliance with the Customer’s obligations, including in relation to data access notification, data breach notification, any enquiry, notice or investigation received from a data protection authority, and the fulfilment of the Data Subject’s rights as long as the Customer’s request is reasonable in light of the context;
5.6.7. It keeps a record of processing activities as per Data Protection Legislation;
5.6.8. It shall take appropriate technical and organisational measures against unauthorised or unlawful Processing of such Personal Data and against accidental loss or destruction of, or damage to, such Personal Data as per Social Media’s information security policy which includes but is not limited to:
5.6.8.1. the pseudonymisation and encryption of Personal Data;
5.6.8.2. the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems and services;
5.6.8.3. the ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; and
5.6.8.4. a process for regularly testing, assessing, and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
5.6.9. it shall not transfer any such Personal Data internationally unless such transfer is in compliance with the Data Protection Legislation. In case of a restricted transfer, an international data transfer agreement must be signed between the Parties and will be attached to these Terms of Service;
5.6.10. Transfers that are not considered restricted transfers:
5.6.10.1. transfer to a country located in the EEA,
5.6.10.2. transfer to a country for which the European Union Commission has issued an adequacy decision,
5.6.10.3. transfer to a country where there is an applicable partial finding of adequacy (Canada, Japan, United States) where the Customer is part of a specific framework, such as the EU-US Data Privacy Framework with UK extension.
5.6.11. it shall provide secure web pages on the Portal from which the Customer can request, access and download completed Reports in a pdf or equivalent format. Alternatively, Customer may access completed Reports via API in accordance with the API Terms.
5.7. The Customer provides Social Media with a general authorisation to appoint sub-processors. In such cases, where Social Media engages subsequent sub-processor for carrying out specific processing activities on behalf of Customer, Social Media will proactively share the list with the Customer and will remain liable to the Customer and at least the same or more stringent data protection obligations. In particular:
5.7.1. Social Media shall keep the list of general sub-processors used up-to-date in its privacy policy available at all times on the Site;
5.7.2. Social Media shall inform the Customer at least 30 days prior to the sub-processor processing any Personal Data in the provision of Services;
5.7.3. If the Customer does not object in the 30 days period, the Customer is deemed to have consented to the use of the sub-processor processing Personal Data in the provision of Services;
5.7.4. If the Customer objects after the 30 days period, Social Media shall, at its discretion, either cease use of the sub-processor in the provision of Services or terminate the Terms with immediate effect upon notice.
5.8. Where Social Media has appointed a sub-processors, it shall:
5.8.1. Provide appropriate safeguards in relation to the processing and transfer (including the necessary clauses in case of restricted transfer);
5.8.2. Provide Data Subject’s enforceable rights and effective legal remedies regarding the transfer;
5.8.3. Sign a written agreement that includes the same data protection obligations on the sub-processor(s) as those set out in these Terms of Service.
5.9. A description of the details of Processing is provided below:
5.9.1. Data Subjects: Employees and prospective employees (candidates) of the CUSTOMER (or its clients);
5.9.2. Subject-matter and purpose of the Processing: to perform OSINT (Open Source Intelligence) screening for the purposes of answering regulatory obligations, protecting assets, due diligence requirements, reputation and brand protection, the reduction of security risks, pre-employment, employment and industry specific vetting;
5.9.3. Categories of Personal Data: Name, Address, Email Address, Telephone Number, Nationality, Gender, Date of Birth, Current or Former Employers, Job Applied For, Country of Employment, Industry Sector – Employment, Online Usernames, Online public information (OSINT).
5.9.4. Recipients: Social Media’s employees who are authorised to receive the data and who need access to the information in order to perform services for the Customer.
5.10. Customer instructs Social Media to only retain copies of the Reports for a period of sixty (60) days following the request date for the Report by the Customer. The Customer understands that past sixty (60) days, Social Media will no longer have access to the Report and does not hold any liability with regards to a Report it can no longer have access to.
5.11. Monitoring or recording of Customer calls, e-mails and other communications may take place in accordance with United Kingdom law and in particular for business purposes, such as for quality control and training; processing necessary for the entering into or the performance of a contract; to prevent unauthorised use of the Site, the Portal and Social Media’s other systems; to ensure effective systems operation; to meet any legal obligation; in order to prevent or detect crime; and for the purposes of the legitimate interests of Social Media.
6. Confidentiality
6.1. Definition of Confidential Information: In order to provide or receive Services under these Terms of Service, one Party (the “Receiving Party”) may be furnished with or receive from the other Party (the “Disclosing Party”) information and materials that are considered to be confidential and/or proprietary to the Disclosing Party (“Confidential Information”). Confidential Information includes all information, in any form, furnished or made available directly or indirectly to the Receiving Party by the Disclosing Party orally or in writing (including electronic format), that relates in any way to the Disclosing Party; their respective existing or former employees or participants; existing, former or potential Customer(s); or other third parties with whom the Disclosing Party have a business relationship. Confidential Information will include Customer Personal Data. Confidential Information will also include any information that should reasonably be considered to be confidential and/or proprietary to the Disclosing Party in the normal course of business.
6.2. Protection of Confidential Information: the Receiving Party will keep and maintain all Confidential Information in strict confidence and will protect Confidential Information with at least the same degree of care (and in any event no less than reasonable care) that it uses to protect the Receiving Party’s own confidential information.
6.2.1. Where the Receiving Party is Social Media, Social Media may disclose such information to employees, permitted subcontractors performing services, provided that Social Media will cause all recipients to sign a non-disclosure agreement specifying that protection of such Confidential Information will be in compliance with these Terms of Service and any applicable Statement of Work (SOW), and Social Media will be responsible for any deviation (including by third parties to whom Social Media has provided Confidential Information) from the requirements of these Terms of Service concerning use and protection of Confidential Information.
6.3. Exceptions – Required Disclosure: The restrictions contained herein shall not apply to information that is:
6.3.1. already lawfully known by the Receiving Party prior to receiving such information from the Disclosing Party;
6.3.2. publicly known at the time of the disclosure or becomes publicly known through no wrongful act of the Receiving Party;
6.3.3. subsequently disclosed on a non-confidential basis by a third party not having a confidential relationship with the Disclosing Party and such third party rightfully acquired such information;
6.3.4. independently developed by the Receiving Party without reference to the Disclosing Party’s materials; or
6.3.5. communicated to a third party with the express written consent of the Disclosing Party.
6.3.6. The foregoing exceptions do not apply to the disclosure of Customer Personal Data, which shall not be disclosed without Customer’s prior written consent unless required by law. If the Receiving Party is required by law to disclose Confidential Information,the Receiving Party will give prompt advance written notice of such requirement to the Disclosing Party. Reasonable efforts will be made to provide this notice in sufficient time to allow the Disclosing Party to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and the Receiving Party will cooperate in such efforts, at the Disclosing Party’s expense.
7. Limitation of Liability
7.1. The Services and the software used in performing the Services, and all related and ancillary Services are provided on an “as is” and “as available” basis. To the fullest extent permitted by Applicable Laws, Social Media expressly disclaims all warranties, claims or representations made by Social Media, either express, implied or statutory, with respect to the Services and any software used in performing the Services. This includes warranties of quality, performance, non-infringement, merchantability, accuracy, reliability, completeness or fitness for a particular purpose, nor are there any warranties created by course of dealing, course of performance, or trade usage. Social media does not warrant that the Services, or any part of it.
7.2. Without limitation, Social Media does not represent or warrant, and disclaims any and all responsibility for any loss, injury, claim, liability, penalty or damage of any kind whatsoever resulting from, arising out of or in any way related to:
7.2.1. the use, misuse or distribution of the information contained in any Reports;
7.2.2. the Customer’s use of the Services;
7.2.3. the Customer’s use of any equipment or software in connection with the Services;
7.2.4. any inaccuracies contained in any Reports or any omission from any Reports;
7.2.5. any breach of these Terms of Service by the Customer.
7.3. The Customer agrees that they will hold harmless Social Media, and its officers, directors, and employees, from all claims arising out of or related to the Customer’s access or use of, or the Customer’s inability to access or use, the Services or the information contained on the Portal or the Reports.
7.4. Social Media will not be liable to the Customer or any third party claimant whether in contract, tort, misrepresentation for any indirect, special, punitive, consequential (including without limitation lost profits or lost data collected through the Services), or incidental damages, whether based on a claim or action of contract, warranty, negligence, strict liability or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if Social Media has been advised of the possibility of such damages.
7.5. In respect of a single request for the Services, the entire liability of Social Media in relation to any and all claims arising out of or in connection with these Terms of Service or its subject matter in contract, tort (including negligence, breach of statutory duty or otherwise), shall not exceed an amount equal to the sums received by Social Media from the Customer under these Terms of Service in respect of that single request for the Services.
7.6. The Customer agrees to indemnify, hold harmless and defend Social Media at the Customer’s expense against any and all third party claims, actions, proceedings and suits brought against Social Media or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including without limitation reasonable legal fees and other litigation expenses) incurred by Social Media or any of its officers, directors, employees, agents or affiliates arising out of or relating to:
7.6.1. the Customer’s breach of any term or condition of these Terms of Service;
7.6.2. the Customer’s fraudulent or malicious use of the Services; or
7.6.3. the Customer’s violations of Applicable Laws, rules or regulations in connection with the Services.
7.6.4. In respect of this Clause of these Terms of Service, Social Media will provide the Customer with written or electronic notice of such claim, suit or action. The Customer shall cooperate as fully as reasonably required in the defence of any claim. Social Media reserves the right, at its own expense, to assume the exclusive defence and control of any matter subject to indemnification by the Customer.
7.7. Nothing in these Terms of Service will serve to limit or exclude Social Media’s liability for death or personal injury resulting from its own negligence, or for its fraud or fraudulent misrepresentation.
7.8. The foregoing exclusions and disclaimers are an essential part of these Terms of Service and formed the basis for determining the price charged for the services.
8. Exclusivity and Non-Competition
8.1. Social Media shall be exclusively entrusted with the Services. Any additional activities of Social Media for the Customer outside the scope of this exclusivity shall be agreed in writing between the Parties.
8.2. The Customer agrees that during the period of these Terms of Service, the Customer shall not provide Services which are the same or similar to the Services provided under these Terms of Service.
8.3. In the event that CUSTOMER breaches this clause 4 during the term of this Agreement this will be considered a breach of this Agreement and Social Media shall have the right to terminate this Agreement with immediate effect. The payment for outstanding products or services will not be affected by this termination.
9. Price, payments and transactions
9.1. The price for the Services shall be determined in accordance with the quotation for Services in the Specific Terms of Service. The price include related fees, Value Added Tax (VAT), other applicable taxes and expenses in connection with the provision of Services.
9.2. Prices for Services are valid for a minimum of 1 year from the Commencement Date of the Terms of Service; after which date Social Media may increase the prices. Social Media may make annual increases to prices in accordance with the higher of the United Kingdom annual labour cost inflation and the United Kingdom consumer retail price index for the previous calendar year (or then closest period for which figures are available); in which case, prices will be updated on 1st January.
9.3. Social Media shall provide invoices to the Customer for the Services on the first working day of each calendar month for requests placed in the previous calendar month.
9.4. The Customer shall pay to Social Media the invoice within 30 days of the date on the invoice unless otherwise agreed between Social Media and the Customer within the Specific Terms of Service.
9.5. In the event the Customer fails to pay the invoice within 30 days of the invoice date, Social Media is entitled to charge interest on the overdue sum from the due date until the date payment is received and reserves the right to postpone all Services with immediate effect of late payment. Such interest will accrue daily and will be at the rate of 2% of total overdue amounts per month of delay.
9.6. If the Customer disputes any part of the invoice received, it must notify Social Media within 10 days of receipt of the invoice setting out such objections. The Customer shall pay the undisputed sums within 30 days of the invoice date and the balance due immediately (and no later than 1 working day) upon resolution of the dispute. No interest shall be applied to disputed amounts unless the Customer fails to make payment within 1 working day of the dispute being resolved
9.7. All sales in respect of the Services are final. No refunds shall be given by Social Media for any amounts paid for the Services.
9.8. The Customer acknowledges that they have sufficient information about the Services prior to placing a request; thus the Customer foregoes the right to dispute credit card charges and/or charges they incur and the right to dispute incurred charges on the grounds that Social Media has failed to deliver satisfactory services through its online internet-based business.
10. Term, Termination and Limitation
10.1. These Terms of Service shall become effective on the Commencement Date and shall be renewed automatically every month.
10.2. Either party can terminate these Terms of Service by delivering a twenty-five (25) days’ notice to the other Party.
10.3. Upon termination, payment for outstanding Services will not be affected by termination.
10.4. Should Customer violate these Terms of Service, this may result in immediate termination of these Terms of Service or in temporary or permanent limitation of the Customer’s ability to use the Services. The actions to be taken by Social Media in such cases may include:
10.4.1. removing or suspending access to Reports;
10.4.2. limiting or removing access to any Services and
10.4.3. closing account/s as required in Social Media’s reasonable business judgment to enforce these Terms of Service.
11. Miscellaneous
11.1. All notices to be given to Social Media under these Terms of Service shall be sent to legal@sp-index.com
11.2. Only Social Media and the Customer have the right to enforce these Terms of Service. Under the Contract (Rights of Third Parties) Act 1999, a third party is not able to enforce any part of these Terms of Service.
11.3. Unless otherwise specified in these Terms of Service, nothing in these Terms of Service is intended to, or shall operate to, create a partnership between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name of or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11.4. Customer acknowledges that the provisions of these Terms of Service are essential to protect the legitimate commercial and business interests of Social Media, that they are fair and reasonable and the terms of these Terms of Service formed the basis for determining the prices charged for Reports and related services.
11.5. The following are hereby incorporated to these Terms of Service by reference:
11.5.1. Specific Terms of Service;
11.5.2. Terms of Use of the Site and Portal;
11.5.3. Privacy Policy;
11.5.4. API Terms (if applicable).
11.6. In the event of any inconsistency between the terms of these Terms of Service and the terms of the Privacy Policy, Terms of Use of the Site and Portal, Specific Terms of Service, and the API Terms, the provisions of these Terms of Service shall prevail unless otherwise expressly stated by the Parties.
11.7. The Customer may not assign or otherwise transfer any of the Customer’s rights hereunder without Social Media’s prior written consent, and any such attempt is void.
11.8. The Customer specifically agrees not to engage in negative comments, libel or slander regarding Social Media including but not limited to publishing, or causing to be published, complaints or derogatory comments about Social Media in any format, including but not limited to print, newspaper, television, radio or on internet complaint sites, blogs or other public internet forums. Should there be a breach of this Clause, Social Media will be entitled to liquidated damages in the amount of £5,000.00 for each publishing or posting. If said breach occurs on an internet complaint site each hit to that website will be considered an individual breach of this condition, and subject to additional liquidated damages of £200.00 per occurrence. Further, Social Media shall be entitled to litigate this matter, and obtain money damages together with injunctive and punitive relief. The prevailing party to that litigation shall be entitled to an award of legal fees.
11.9. If any provision of these Terms of Service is determined to be void, illegal or unenforceable, it will be deemed automatically adjusted to the minimum extent necessary to conform to applicable requirements of validity, legality, and enforceability and, as so adjusted, be deemed a provision of the Terms of Service as if it were originally included herein. In any event, the remaining provisions of the Terms of Service will remain in full force and effect.
11.10. Failure of any Party to enforce any of its respective rights or remedies hereunder with respect to any specific act or failure to act by any Party will not constitute a waiver of the rights of that Party to enforce those rights and remedies with respect to any other or subsequent act or failure to act.
12. Force Majeure
12.1. Neither Party shall be liable for failure to perform its obligations under these Terms of Service as a result of events beyond its control. The Party subject to this event shall undertake to notify the other Party of its inability to perform its obligations within 48 hours of becoming aware of such an event.
12.2. Such events include, but are not limited to:
12.2.1. acts of God;
12.2.2. strikes, lockouts or other industrial disturbances;
12.2.3. wars, blockades, riots, epidemics, landslides, lightning, earthquakes, fires, storms, civil disturbances and terrorism;
12.2.4. Interruption of electricity, telephone, internet or other supplies outside the control of the Party subject to the event.
12.3. Neither Party shall have the right to terminate the Agreement in accordance with this Clause in such circumstances.
13. Disputes, Choice of Law, Jurisdiction
13.1. In the event that the Customer has a problem or difficulty with Social Media or the Services, it should first contact Social Media. The Customer must make a reasonable and commercially prudent effort to solve the issue with Social Media directly prior to engaging legal action. Similarly, Social Media will make reasonable business efforts to solve problems directly with the Customer prior to engaging legal action.
13.2. These Terms of Service shall be governed by and construed under the laws of England and Wales. In the event of any conflicts between foreign law, rules, and regulations, and English and Welsh law, rules, and regulations, English and Welsh law, rules and regulations shall prevail and govern. Each Party agrees to submit to the exclusive and personal jurisdiction of the courts located in England and Wales.
