Terms of Service

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These Terms of Service (together with the Order Form executed between you and Echobox, this "Agreement") sets out the terms and conditions upon which you may use the Echobox Service and any application or functionality Echobox makes available through the Echobox Service.

By signing up to or using the Echobox Service, you agree to and accept these Terms of Service.

Please read these Terms of Service carefully and make sure you understand and agree to them before using the Echobox Service. If you have any questions relating to these Terms of Service please contact Echobox at terms@echobox.com.

If you are agreeing to these Terms of Services on behalf of a company or other entity, such as your employer (each, an "Organisation"), then you hereby represent and warrant to having the authority to bind that Organisation to this Agreement (and, in the absence of such authority, such individual may not access, nor use, the Echobox Service), and that your acceptance of these Terms of Service will bind that Organisation to these Terms of Service.

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

Information about Echobox

The Echobox Service is provided by Echobox Ltd ("Echobox"), a company incorporated and registered in England and Wales under company number 08115900 whose registered office is at 9th Floor, 107 Cheapside, London, United Kingdom, EC2V 6DN.

Interpretation

In these Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:

"Account" means the Customer's account on the Echobox Service;

"Agreement" means the agreement between the Customer and Echobox for the provision of the Echobox Service comprising the Order Form and these Terms of Service;

"Authorised User" means Customer and any person authorised by the Customer to access the Echobox Service on behalf of the Customer and for whom access to the Echobox Service has been purchased hereunder;

"Campaign" means a form of regular newsletter, promotional email or content that the Customer distributes to a particular Subscriber List through the Echobox Service in accordance with that Subscriber List's preferences;

"Commencement Date" means the date from which the Customer will receive access to the Echobox Service in order to initiate the Setup Services, as set out in the Order Form;

"Confidential Information" of a party means, subject to the exclusions set forth in clause 15.1 information, such party's business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential";

"CPI" means the UK Consumer Prices Index published by the UK Office for National Statistics, or, if the Consumer Prices Index stops being published or becomes inappropriate in Echobox's reasonable opinion, such other index or measure of inflation as Echobox reasonably considers appropriate;

"Current Pricing Tier" means the Service Fees and Overage Fee, and corresponding Monthly Email Allowance, maximum Users and maximum number of Campaigns applicable to the Customer's use of the Echobox Service as of the date the Customer agrees to these Terms of Service, as set out in the Order Form;

"Customer" means the person or entity identified as the customer in the Order Form;

"Customer Data" means, other than Derived Materials, the content and data the Customer makes available to Echobox as a result of the use of the Echobox Service;

"Customer Personal Data" has the meaning given to it in clause 14.1(a);

"Data Protection Laws" means any applicable legislation protecting the fundamental rights and freedoms of persons and their right to privacy with regard to the processing of personal data, including (as applicable):

1. the GDPR and any national legislation implementing or supplementing the GDPR (including the UK Data Protection Act 2018);
2. the ePrivacy Directive 2002/56/EC and any national implementing legislation (including the UK Privacy and Electronic Communications (EC Directive) Regulations 2003);
3. The Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 15 U.S.C. § 103; and
4. The Telephone Consumer Protection Act 1991 47 U.S.C. § 227;

"Derived Materials" means:

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

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

"Documentation" means Echobox's user manuals, handbooks, and guides relating to the Echobox Service provided by Echobox to Customer either electronically or in hard copy form;

"DPA" shall have the meaning given to it in clause 14.2;

"Echobox IP" means the Echobox Service, the Documentation, and any and all intellectual property provided to Customer or any Authorised User in connection with the foregoing. For the avoidance of doubt, Echobox IP includes Derived Materials, but does not include Customer Data;

"Echobox Service" means the software platforms that Echobox makes available as a service through the Website that allows users to create and manage Campaigns and Editions, and to manage their social media presence;

"Edition" means an email created and distributed to a Subscriber List through the Echobox Service as part of a Campaign;

"Facebook Page" means a public profile for a business, brand, celebrity, cause or other organisation on Facebook created and managed by or on behalf of the Customer;

"GDPR" means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council and, where applicable, the "UK GDPR" as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the UK European Union (Withdrawal) Act 2018;

"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorised access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer or any Authorised User from accessing or using the Echobox Service as intended by this Agreement;

"Initial Term" means the period commencing on the Commencement Date and ending on the date which is one (1) year (or such other period as may be agreed between the parties and set out in the Order Form) from:

1. the Commencement Date; or
2. where the parties agree, in the Order Form, that the Customer shall pay the Service Fees on a monthly basis, the last day of the month on which the Commencement Date falls;

"Instagram Page" means a public profile for a business, brand, celebrity, cause or other organisation on Instagram created and managed by or on behalf of the Customer;

"LinkedIn Page" means a public profile for a business, brand, celebrity, cause or other organisation on LinkedIn created and managed by or on behalf of the Customer;

"Monthly Email Allowance" means the number of emails identified in the Order Form in respect of the Current Pricing Tier and Next Pricing Tier;

"Next Pricing Tier" means the Service Fees and Overage Fee, and corresponding Monthly Email Allowance, maximum Users and maximum number of Campaigns applicable to the Customer's use of the Echobox Service, as set out in the Order Form, that shall, upon request by the Customer in accordance with clause 4.9, apply to the Customer's use of the Echobox Service;

"Order Form" means the order form signed (whether electronically or otherwise) by the parties, and which, amongst other things, identifies the Customer and sets out the Service Fees;

"Overage Fee" means the amount payable by the Customer in respect of each email the Customer sends as part of a Campaign in excess of the Monthly Email Allowance;

"Payment Terms" means the frequency with which the Customer shall pay the Service Fees, as set out in the Order Form;

"Pricing Tier" means the Current Pricing Tier and the Next Pricing Tier;

"Property" means the Customer's web domain;

"Renewal Term" means a period of one (1) year;

"Service Fees" means the amount set out in the Order Form, as amended in accordance with this Agreement, for the provision of the Setup Services and the provision of the Echobox Service;

"Setup Services" means the services integrating the Echobox Service with the Customer's web pages or mobile application;

"Subscriber List" means individuals that have requested or consented to receiving a specific newsletter, type of promotional material or particular content by email from the Customer;

"Terms of Service" means these terms and conditions of service as amended from time to time;

"Twitter Page" means a Twitter account created and managed by or on behalf of the Customer;

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

Terms defined in the GDPR shall have the same meaning when used in this Agreement, including the terms "controller", "processor", "data subject", "personal data" and "process".

Duration

The initial term of this Agreement (the "Initial Term”) shall commence on the Commencement Date as agreed in the applicable Order Form and shall end on the date which is one (1) year (or such other period as may be agreed between the parties and set out in the Order Form) from the Commencement Date.

After the end of the Initial Term, the Agreement shall automatically renew additional successive one (1) year renewal terms unless (subject to clause 3.3) either party gives written notice to the other party to terminate the Agreement at the end of the Initial Term or the then-current Renewal Term (as applicable), such notice to be given no later than thirty (30) days prior to the expiry of the Initial Term or the then-current Renewal Term (as applicable) (each such renewal term, a "Renewal Term”, and together with the Initial Term, the "Term”).

Notwithstanding any notice given by the Customer under clause 3.2, the Agreement shall automatically renew for a Renewal Term at the end of the Initial Term or applicable Renewal Term if the Customer or any of its Authorised Users continue to access and use the Echobox Service after the expiry of the Initial Term or applicable Renewal Term in which such notice was given.

Price and Payment

The Customer will pay the Service Fees and Overage Fees in accordance with the applicable Pricing Tier as set out in the Order Form by bank account transfer or other electronic payment method, without offset or deduction. The Service Fees are payable in advance in accordance with the Payment Terms. The Customer agrees that, subject to clause 5.8, the Service Fees are non-refundable.

Unless alternative payment is agreed in the Order Form, the Customer will provide to Echobox valid, up-to-date and complete credit or debit card details and it hereby authorises Echobox to bill such credit or debit card for the Service Fees as set out in the Order Form.

If Echobox has not received payment in full within fourteen (14) days after the due date, and without prejudice to any other rights and remedies available to Echobox:

1. Echobox may, without liability to the Customer, suspend or temporarily disable all or part of its access to the Echobox Service and Echobox shall be under no obligation to provide any access to the Echobox Service until such amounts are paid in full (pursuant to clause 5.1); and
2. interest shall accrue on such due amounts at a monthly rate of one per cent (1%) commencing on the due date (or, if lower, the highest rate permitted under applicable law) and continuing until fully paid, whether before or after judgement.

Without limiting any of Echobox's rights under this agreement, iIf Echobox has not received payment in full of outstanding fees due to Echobox under this Agreement within thirty (30) days of their respective due date, the full Service Fees for the then current Initial Term or Renewal Term shall become due and payable immediately.

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

1. are payable in the currency specified in the Order Form or otherwise stipulated by Echobox; and
2. are exclusive of taxes and similar assessments, and Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Echobox's income.

The Service Fees shall, on each anniversary of the Commencement Date, increase by five per cent (5%) or the percentage increase in the CPI during the twelve (12) months preceding that anniversary date, whichever is higher.

If a tax deduction is required by law to be made by the Customer, the amount of the payment due from the Customer shall be increased to an amount which (after making any tax deduction) leaves an amount equal to the Service Fees which would have been due if no tax deduction had been required.

All invoices are issued electronically and will be sent by email to up to five recipients specified by the Customer. Echobox will not upload invoices to any website or portal used by the Customer or the Customer's partners or service providers. Echobox will not send invoices, invoice requests, order forms, quotes or any other documents by post.

The Customer shall notify Echobox in writing if it wishes to change from the Current Pricing Tier to the Next Pricing Tier. Echobox shall, promptly following receipt of the Customer's request, confirm the change in Pricing Tier to the Customer, and the terms of the Next Pricing Tier shall apply from the next due date for payment of the Service Fees and Overage Fees in accordance with the Payment Terms following the date of the Customer's request.

Echobox may launch new Echobox Services and offer these free of charge, but reserves the right to change the pricing of these subject to a new Order Form being signed with the Customer.

Suspension and Termination

Notwithstanding anything to the contrary in this Agreement, Echobox may temporarily suspend Customer's and any Authorised User's Account or other access to any portion or all of the Echobox Service if: (i) Echobox reasonably determines that (A) there is a threat or attack on any of the Echobox IP; (B) Customer's or any Authorised User's use of the Echobox IP disrupts or poses a security risk to the Echobox IP or to any other customer or vendor of Echobox; (C) Customer, or any Authorised User, is using the Echobox IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution, or similar proceeding; (E) Echobox's provision of the Echobox Service to Customer or any Authorised User is prohibited by applicable law; or (F); Customer or any Authorised User has failed to comply with any of the provisions of the Agreement or (ii) iIf the Customer fails to pay any sum due to Echobox and such sum remains outstanding for a further fourteen (14) days following notice requiring such sum to be paid (any such suspension described in subclause (i) or (ii), a "Service Suspension”); provided that in the event of subclause (ii), Echobox may also terminate the Agreement with the Customer immediately by notice and without any liability for Echobox to the Customer. Echobox shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Echobox Service following any Service Suspension. Echobox shall use commercially reasonable efforts to resume providing access to the Echobox Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Echobox will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorised User may incur as a result of a Service Suspension.

Echobox may terminate the Agreement by giving to the Customer thirty (30) days' notice in writing.

Echobox may terminate the Agreement by notice with immediate effect, or such notice as Echobox may elect to give, if the Customer:

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

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

1. is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within ninety (90) days after receiving written notice requiring it to remedy that breach; or
2. (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

On expiration or earlier termination of the Agreement for any reason all licences granted to Customer under this Agreement shall immediately terminate and the Customer shall immediately discontinue use of the Echobox IP.

Echobox shall use reasonable endeavours to permit the Customer to download any Customer Data from the Echobox Service for a period of fifteen (15) days after the expiry or termination (howsoever caused) of the Agreement.

This clause 5.7 and clauses 2,4, 8.1, 10.2, 11, 12, 13, 14.3, and 15 through 28 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

If the Agreement is terminated by Echobox for convenience in accordance with clause 5.2, Echobox shall refund the Customer any Service Fees prepaid by the Customer relating for use of and access to the Echobox Service that has not and will not be provided for the remainder to the unexpired period of the then-current Initial Term or Renewal Term (as applicable) if this Agreement were not so terminated. Except as expressly set forth in this clause 5.8, no other expiration or termination will affect Customer's obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.

Setup Services

In order for Echobox to provide the Setup Services, the Customer shall provide Echobox with all necessary Customer Data as specified by Echobox.

Echobox will:

1. provide the Setup Services to the Customer with reasonable skill and expertise in accordance with the Customer's reasonable instructions; and
2. use reasonable endeavours to complete the Setup Services within 14 days after the Customer fulfills clause 6.1.

Echobox shall not be liable to the Customer for, and shall not be required to amend the Commencement Date in connection with, any delay or failure by Echobox to complete the Setup Services as a result of the Customer's delay or failure to comply with clause 6.1 or clause 8.2(d).

Access to the Echobox Service

Subject to and conditioned on Customer's payment of fees due hereunder and compliance with all other terms and conditions of this Agreement, Echobox grants the Customer a non-exclusive, non-transferable, personal and non sub-licensable licence for the Term to access and use, and permit Authorised Users to access and use the Echobox Service and the Echobox Service features for the purpose of monitoring and analysing content available to the Customer on the Echobox Service and managing the Customer's Account.

The Customer must:

1. treat any username and password used to access the Echobox Service or the Customer's Account as Confidential Information, and it must not disclose it to any third party (other than to Users);
2. ensure that each Authorised User keeps secure and confidential any username and password provided to them for the Authorised User's use of the Echobox Service and that the Authorised User does not disclose such username and password to any third party other than persons within the Customer's organisation, company or business; and
3. take reasonable precautions to prevent any unauthorised access to, or use of, the Echobox Service and, in the event of any such unauthorised access or use, promptly notify Echobox.

Echobox may disable any username or password, at any time and at Echobox's sole discretion, if a User or the Customer has failed to comply with any of the provisions of the Agreement.

The Customer is responsible for any activities that occur under its Account including the activities of Authorised Users. Whenever applicable, Echobox encourages the Customer to use "strong" passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its Account. If the Customer has any concerns about the login details for its Account or thinks they have been misused, please contact Echobox at terms@echobox.com.

The Customer recognises that Echobox is always innovating and finding ways to improve the Echobox Service with new features and services. Therefore, the Customer agrees that the Echobox Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Echobox Service.

Customer Obligations

The Customer shall indemnify, hold harmless and (at Echobox's option) defend Echobox, its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer's fees) arising out of a claim brought by a third party relating to the Customer's use of the Echobox Service (except to the extent caused by Echobox's negligence), including (without limitation) any claim for defamation or any infringement of a third party's rights, provided that Customer may not settle any such claim against Echobox unless Echobox consents to such settlement, and further provided that Echobox will have the right, at its option, to defend itself against any such claim or to participate in the defencse thereof by counsel of its own choice.

The Customer shall not, directly or indirectly, use (or permit any Authorised User to use) the Echobox Service for any purposes beyond the scope of the access granted in this Agreement.

Without limiting the generality of the foregoing, the Customer:

1. must comply with all applicable laws and regulations with respect to its use of the Echobox Service and its activities under the Agreement;
2. must use the Echobox Service in accordance with the terms of the Agreement and shall be responsible for any actions and omissions of its Authorised Users in connection with their use of the Echobox Service;
3. must obtain and shall maintain all necessary licences, consents, and permissions necessary for Echobox to perform its obligations to the Customer under the terms of Agreement;
4. must ensure that its network and systems, including its internet browser used complies with the relevant specifications provided by Echobox from time to time, including the specifications described at echobox.com/bestpractice;
5. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Echobox Service;
6. must not provide credit or debit card details, bank account information or any other financial details to Echobox by email, SMS or any other messaging system;
7. must not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Echobox Service in any form or media or by any means;
8. must not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Echobox Service;
9. must not access all or any part of the Echobox Service in order to build a product or service which competes with the Echobox Service or use or attempt to use the Echobox Service to directly compete with Echobox;
10. must not (i) access, store, distribute or transmit any Harmful Code through the Echobox Service; (ii) use the Echobox Service to access, store, distribute or transmit any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (iii) use the Echobox Service in a manner that is illegal or causes damage or injury to any person or property; (iv) save as permitted by the functionality of the Echobox Service, use any automated system, including without limitation "robots", "spiders" or "offline readers" to access the Echobox Service in a manner that sends more request messages to the Echobox Service than a human can reasonably produce in the same period of time by using a conventional online web browser; (v) attempt to interfere with or compromise the integrity or security of the Echobox Service;
11. must not, without Echobox's consent (which may be withheld or granted on such conditions as Echobox, in its discretion, deems appropriate), run more Campaigns than the maximum number of Campaigns applicable to the Customer's Pricing Tier as set out in the Order Form or otherwise agreed between the parties, or connect more Properties, Facebook Pages, Instagram Pages, LinkedIn Pages or Twitter Pages to the Echobox Service than the number of Properties, Facebook Pages, Instagram Pages, LinkedIn Pages or Twitter Pages (as appropriate) set out in the Order Form or otherwise agreed between the parties.

Echobox reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Customer's Account for breaches of the provisions of this clause 8.2(f).

Notwithstanding anything to the contrary, Echobox may monitor the Customer's use of the Echobox Service to ensure quality, improve the Echobox Service, compile Derived Materials, and verify the Customer''s compliance with the Agreement. As between Echobox and Customer, all right, title, and interest in Derived Materials, and all intellectual property rights therein, belong to and are retained solely by Echobox. Customer acknowledges that Echobox may compile Derived Materials based on Customer Data input into the Echobox Service.

Support

Echobox will, as part of the Echobox Service, use reasonable endeavours to provide a level of support that is appropriate to the nature of any issues requiring support. Support for Customers using the Echobox Service will be provided 24 hours a day, Monday to Friday, and is provided entirely at Echobox's option and discretion. The Customer shall:

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

The Customer acknowledges that the Echobox Service is dependent on access to various third party data sources (including the Customer Data). The Customer agrees that Echobox are not responsible for the non-availability or interruption to the Echobox Service caused by any such non-availability of any such third party data source.

Limited Warranty

Echobox shall support the Echobox Service in accordance with clause 9.

Except as set forth in clause 10.1, the Echobox IP is provided "as is” and Echobox hereby disclaims all warranties, whether express, implied, statutory, or otherwise. Echobox specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage or trade practice. Echobox makes no warranty of any kind that the Echobox IP, or any products or results of the use thereof, will meet customer's or any other person's requirements, operate without interruption, achieve any intended results, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.

Without limiting the generality of the foregoing:

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

Echobox's Liability

In no event will Echobox be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether Echobox was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will Echobox's aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts paid to Echobox under this agreement in the six (6) month period preceding the event giving rise to the claim.

Events outside Echobox's Control

No party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, internet failure, act of God, governmental act, war, fire, flood, explosion or civil commotion, save that nothing in this clause shall excuse the Customer from any payment obligations under the Agreement.

Important Note on Intellectual Property Rights

Customer acknowledges that, as between Customer and Echobox, Echobox is the owner of or the licensee of all right, title, and interest, including all intellectual property rights, in and to the Echobox IP (including the Echobox Service, Documentation, and Derived Materials). These works are protected by copyright and other laws and treaties around the world. All such rights are reserved. Echobox reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Echobox IP.

The Customer will not, when using the Echobox Service, except as may be allowed by any applicable law which is incapable of exclusion by Echobox or as expressly permitted under these Terms of Service:

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

Echobox acknowledges that, as between Echobox and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. The Customer grants Echobox a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the Customer Data as may be necessary for Echobox to provide the Echobox Service to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Derived Materials, including without limitation for the purposes of:

1. analysing the Customer Data in accordance with the Echobox Service functionality and displaying the results of such analysis to Authorised Users;
2. developing, testing, improving and altering the functionality of the Echobox Service;
3. producing anonymised or anonymised and aggregated statistical reports and research;
4. using anonymised and aggregated statistics in connection with promoting the Echobox Service or in any of Echobox's marketing materials;
5. responding to any claims made to third parties or the public by the Customer about the Echobox Service.

If Customer or any of its employees or contractors sends or transmits any communications or materials to Echobox by mail, email, telephone, or otherwise, suggesting or recommending changes to the Echobox IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback”), Echobox is free to use such Feedback irrespective of any other obligation or limitation between the Echobox and Customer governing such Feedback.

The Customer shall maintain a backup of Customer Data and Echobox shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Customer Data.

Data Protection

The Customer shall comply with all applicable Data Protection Laws in respect to its use of the Echobox Service, including as follows:

1. the Customer shall provide all applicable information to data subjects as required under applicable Data Protection Laws in connection with the processing by Echobox of personal data contained within the Customer Data ("Customer Personal Data");
2. where applicable, the Customer shall obtain all consents from data subjects as required under applicable Data Protection Laws for the lawful processing of their Customer Personal Data;
3. the Customer shall not use the Echobox Service to send any unsolicited promotional messages or newsletters unless it has, to the extent required under applicable Data Protection Laws obtained the recipient's consent to receive such messages or newsletters and such consent has not, at the time the Customer initiates any message to the recipient through the Echobox Service, been withdrawn.

To the extent that Echobox processes any Customer Personal Data on behalf of the Customer as a processor, it shall do so in accordance with the data processing addendum at echobox.com/dpa ("DPA").

The Customer shall indemnify and defend Echobox, its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer's fees) incurred by Echobox or for which Echobox may become liable due to any failure by the Customer or its Users to comply with clause 14.1.

Confidential Information

Each party may be given access to Confidential Information from the other party from time to time during the Term. A party's Confidential Information shall not be deemed to include information that:

1. is or becomes publicly known other than through any act or omission of the receiving party;
2. was in the other party's lawful possession before the disclosure;
3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
4. is independently developed by the receiving party, which independent development can be shown by written evidence;
5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body; or
6. Echobox chooses to disclose or make public in order to respond to claims made to third parties or the public by the Customer about the Echobox Service or any current or former Echobox employees, contractors, customers, suppliers, investors or advisors.

Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available for use for any purpose other than to employees and agents who have a need to know the Confidential Information for the receiving party to perform its obligations or exercise its rights under the Agreement.

Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order.

Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by it or its employees or agents in violation of the terms of the Agreement.

Each party shall take a back-up of its own Confidential Information and shall not be responsible to the other for any loss, destruction, alteration or disclosure of Confidential Information.

On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the effective date of the applicable Order Form and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

Publicity

Echobox may use the Customer's name, logo and related trade marks in any of Echobox's publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Customer uses the Echobox Service and alongside any testimonials that the Customer has agreed to give. The Customer grants Echobox such rights as are necessary to use its name, logo, related trademarks and testimonial for the purpose of this clause 16.1.

Customer may not use Echobox's name, logo and related trade marks (whether in printed, oral or electronic form) and must not disclose their usage of Echobox (whether in printed, oral or electronic form) to any third party without Echobox's prior written consent.

Written Communications

Echobox may provide notifications, whether such notifications are required by applicable law or are for marketing or other business-related purposes, to Customer via email notice or written or hard copy notice, or through posting of such notice on the Echobox, as Echobox determines, in its sole discretion. Echobox shall not be responsible for any automatic filtering that Customer or its network provider may apply to email notifications Echobox sends to Customer's provided email addresses.

Applicable laws may require that some of the information or communications Echobox send to the Customer should be in writing. When using the Echobox Service, the Customer accepts that communication with Echobox will be mainly electronic. Echobox will contact the Customer by e-mail or provide the Customer with information by posting notices on the Echobox Service. For contractual purposes, the Customer agrees to this electronic means of communication and the Customer acknowledges that all contracts, notices, information and other communications that Echobox provides to the Customer electronically comply with any legal requirement that such communications be in writing.

Notices

All notices given by the Customer to Echobox must be given to terms@echobox.com. Echobox may give notice to the Customer at either the email or postal address the Customer provides to Echobox, or any other way Echobox deems appropriate. Notice will be deemed received and properly served immediately when posted on the Echobox Service or 24 hours after an email is sent or three (3) days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.

Transfer of Rights and Obligations

The Customer may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Customer's rights or obligations arising under the Agreement, without Echobox's prior written consent.

Waiver

No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Echobox's Right to change the Terms of Service

Echobox may, in its sole discretion, modify, update, revise and amend these Terms of Service from time to time, so Customer should review this page periodically. When Echobox changes these Terms of Service in a material manner, Echobox will provide at least thirty (30) days' notice to Customer before such changes take effect. If the Customer is unhappy with the change, the Customer may, at any time during the notice period, give notice to Echobox rejecting the change, in which case the unchanged Terms of Service will continue to apply and, without prejudice to either party's rights under clause 5, the Agreement shall terminate at the end of the Initial Term or the then-current Renewal Term (as applicable).

Previous Terms of Service, Agreements and Contracts

This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Third Party Rights

A person who is not party to the Agreement shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.

Law and Jurisdiction

The Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.

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