For the purpose of this Agreement, the following terms shall have the following meaning unless the context obviously requires otherwise.
“Agreement” means the Main Agreement (as defined below) together with these Terms and Conditions and all appendices and other express references to other written material.
“Applicable law” means Swedish substantive law, exclusive of its choice of law provisions.
“Brand Names or Logos” means the registered and/or unregistered trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of either party, respectively, as secured either party from time to time.
“Customer” as set forth in the Main Agreement.
“Documentation” means written and other instructions and guidelines provided by Twingly regarding Twingly Data and the Twingly Data's functionality, installation, operation, technical requirements and functional limitations.
“Main Agreement” means the document, in which the Customer and Twingly have agreed upon Twingly’s provision of Twingly Data and Twingly Services and which contains an express reference to the Terms and Conditions.
“Site” means Customer’s website.
“Term” means the period during which the Customer is entitled to use Twingly Data and receive the agreed Twingly Services.
“Terms and Conditions” this documents and otherwise as set forth in the Main Agreement.
“Third party” means any other party than Twingly or the Customer.
“Twingly” as set forth in the Main Agreement and/or any company whose votes and/or capital are to more than fifty per cent (50%) controlled directly or indirectly by Twingly.
“Twingly API” The Twingly application programming interface (API) is a set of functions, procedures, methods or classes that an operating system, library or service provides to support requests made by computer programs. It contains comprehensive data of the Twingly database of blogs and microblog-services.
“Twingly Data” Twingly’s data platform to be used by Twingly and granted certain rights to the Customer in connection with Twingly provision of Twingly Services to the Customer hereunder.
“Twingly Services” means the consultancy and support services regarding the data that are to be provided by Twingly throughout the Term (as defined below) to enable or facilitate Customer’s reception of data for Customer’s collection and subsequent use in Customer’s systems, platforms and/or communication as set out in Main Agreement.
Twingly Data is a data platform to be used by Twingly for provision of Twingly Services to the Customer according to the Agreement. By Twingly granting of access to Twingly Data and supporting provision of Twingly’s Services, the Customer will be provided the services outlined in the Main Agreement.
By Customer’s prior and unconditional acceptance of
(i) the Main Agreement, including a reference to the Terms and Conditions, and
(ii) by accessing the Twingly API
the Customer agrees to be bound by the Agreement (as defined above).
Prices and payment terms for Twingly Data and the Twingly Services are set forth in the Main Agreement.
Unless otherwise agreed in the Main Agreement or otherwise in writing, payment shall be made within thirty (30) days of the Customer’s receipt of Twingly’s invoice. All references to amounts under this Agreement are exclusive of VAT and other governmental taxes (including withholding taxes, if any) and charges that will be invoiced in addition to the agreed price. All amounts are, unless otherwise expressly stated, in Euro (EUR).
In event of Customer’s delay with any payment under this Agreement or otherwise in relation to Twingly, Twingly shall – in addition to any other remedies available under this Agreement or according to Applicable law – be entitled to:
(i) immediately suspend provision of Twingly Data and/or performance of all Twingly Services or deliveries under this Agreement until full payment has been received; and
(ii) receive all costs of collection plus interest on all unpaid amounts, calculated at the rate of the then current Swedish reference rate plus eight (8%) per cent.
Twingly Data shall normally be available for the Customer 24 hours a day and 365 days per year with exception of maintenance, Excusable Interruptions (as defined below) or unavailability due to Force Majeure Events.
Any interruptions of the availability of Twingly Data (which expression for the purpose of this section also shall include significant performance reduction), including consequential or accidental interruptions relating hereto, caused by the following circumstances, hereinafter referred to as “Excusable Interruptions”, shall not be deemed to constitute time during which interruptions has occurred and shall consequently not affect the determination of Twingly Data’s actual availability negatively:
(i) scheduled and notified maintenance intervals or any interruptions as a consequence of maintenance initiated or requested by the Customer,
(ii) time for back-ups, provided that back-up cannot be made without interruptions,
(iii) interruptions caused by the Customer or any third party for which the Customer is responsible,
(iv) defects caused by improper use by the Customer or defects in the Customers equipment, including the Site,
(v) defects in Third Party products or Third Party services which could not reasonably have been avoided by Twingly,
(vi) defects or interruptions in Twingly Data that are dependent on availability of components or functionality outside Twingly operational environment and that is outside the scope of Twingly undertaking under the Agreement, or
(vii) occurrence of a Force Majeure Event.
The Customer agrees and acknowledges that Twingly will not monitor, edit or review the content collected and distributed to the Customer through Twingly Data and that Twingly consequently does not retain any liability whatsoever for the content, including but not limited to, whether the content is incorrect, inappropriate, illegal or infringes any intellectual property rights of a Third Party.
Further, the Customer accepts that it is impossible for Twingly to monitor the completeness, accuracy and operational status of all data provided through Twingly Data. Twingly shall not be held liable regarding the completeness of data if a Third Party for any reason disallows Twingly to aggregate data from their service. Twingly shall and will, however, establish and maintain procedures (including communication facilities with its customers) for ensuring a commercially acceptable quality of the data provided by Twingly Data.
The Customer agrees not to remove, obscure, or alter Twingly’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained in relation to Twingly Data.
The Customer acknowledges that Twingly (and Twingly licensors, if any) owns all right, title and interest in and to Twingly Data and the Twingly Services, including without limitation all intellectual property rights relating thereto (the “Twingly Rights”). The Twingly Rights include rights to Twingly Data and all software (both in object code and source code) associated with Twingly Data developed and provided by Twingly (and Twingly licensors, if any). “TWINGLY”, the “Twingly” logo and other marks that incorporate or refer to “TWINGLY” and Twingly Data are Twingly’s Brand Names or Logos.
The Customer further acknowledges that the intellectual property rights to the data being delivered through Twingly Data and Twingly Services remain with the original respective copyright holder. Twingly Data as outlined under this Agreement is a service for aggregating data and does not entail transferring of any rights to the content therein. The Customer must take any means necessary to protect and not violate the rights of the original copyright holders to the delivered content.
The Customer will not in any form or by any means transfer the delivered data or parts thereof to any Third Party without prior written agreement with Twingly regulating any such transfer, or if the specific method of transfer and recipient is allowed according to the Main Agreement. As a consequence, Customer’s right to publicly display data obtained through Twingly Data is limited as set forth in the Main Agreement. Strictly no other use than given in literal in the Main Agreement is permitted.
Customer understands and acknowledges that Twingly, subject to rightful payment of all fees and charges due to Twingly during the Term, will provide Twingly Data to the Customer on a non-exclusive, non-assignable, non-transferable and nonsublicensable basis for the Term.
It is prohibited for the Customer to during the Term and within twelve (12) months after termination of the Agreement develop and employ any kind of product or service using data obtained through Twingly Data that poses a competition to any product or service offered by Twingly at the date of entering the Agreement.
Twingly reserves the right in its sole discretion to take action against any use that does not conform to these Terms and Conditions, infringes any Twingly intellectual property or other right, or violates Applicable law.
Customer will not, and will not allow any third party to, except as expressly permitted under the Agreement or mandatory Applicable law:
(i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from Twingly Data or any other Twingly technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation;
(ii) remove, deface, obscure, or alter Twingly’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of Twingly Data or any other Twingly technology, software, materials and documentation;
Twingly hereby grants to Customer a non-transferable, non-sublicenseable, nonexclusive license during the Term to display Twingly’s Brand Names or Logos on the Site for the purpose of promoting or advertising that Customer uses Twingly Data and the Twingly Services.
Customer hereby grants to Twingly a non-transferable, non-sublicenseable, nonexclusive license during the Term to use Customers Brand Names or Logos to advertise that Customer is using Twingly Data and the Twingly Services.
Any use of either party’s Brand Names or Logos is subject to the concerned party’s Brand Names or Logos guidelines as applicable from time to time.
TWINGLY HEREBY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM CUSTOMERS USE OF TWINGLY DATA OR THE PROVISION OF TWINGLY SERVICES. TWINGLY DATA AND TWINGLY SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. TWINGLY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
TWINGLY DOES NOT EXCLUDE OR RESTRICT ITS LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM TWINGLY’S NEGLIGENCE.
TWINGLY’S DUTY IN PERFORMING ANY OBLIGATION UNDER THE AGREEMENT IS ONLY TO EXERCISE THE REASONABLE SKILL AND CARE OF A COMPETENT COMPUTER SOFTWARE AND SERVICES PROVIDER.
WITHOUT PREJUDICE TO SECTION 11.2 ABOVE, TWINGLY’S LIABILITY TO THE CUSTOMER IN CONTRACT, NEGLIGENCE OR OTHERWISE IN RELATION TO THE AGREEMENT SHALL IN ANY EVENT BE LIMITED TO TEN (10%) PER CENT OF THE AGREED PRICE FOR TWINGLY DATA FOR ANY ONE INCIDENT OR SERIES OF RELATED INCIDENTS AND TO FIFTEEN (15%) PER CENT OF THE AGREED PRICE FOR TWINGLY DATA FOR ALL INCIDENTS IN ANY PERIOD OF 12 MONTHS; PROVIDED HOWEVER THAT TWINGLY’S AGGREGATE LIABILITY FOR ANY AND ALL INCIDENTS DURING THE TERM OF THE AGREEMENT AND THEREAFTER SHALL NOT EXCEED SUCH PART OF THE PRICE AS HAS BEEN PAID BY THE CUSTOMER. THE EXPRESSION “THE AGREED PRICE FOR TWINGLY DATA” SHALL BE CONSTRUED TO MEAN THE AGGREGATE AMOUNT PAYABLE FROM THE CUSTOMER TO TWINGLY DURING THE TERM (AS SET FORTH HEREIN).
TWINGLY IS NOT LIABLE TO THE CUSTOMER, EITHER IN CONTRACT, FOR NEGLIGENCE OR OTHERWISE FOR LOSS, WHETHER DIRECT OR INDIRECT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES) OF DATA, PROFITS, BUSINESS OR ANTICIPATED SAVINGS, OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATEVER.
EACH PROVISION OF THIS SECTION 11 LIMITING OR EXCLUDING LIABILITY OPERATES SEPARATELY IN ITSELF AND SURVIVES NDEPENDENTLY OF THE OTHERS.
Neither party shall be responsible or liable in any way for failure, delay or omission carrying out the terms of this Agreement resulting from any cause or circumstance beyond its reasonable control, hereinafter referred to as “Force Majeure Event”, including, but not limited to, fire, flood, other natural disasters, war, labour strike, interruption of transit, interruption in data- and/or telecommunication services, terrorist acts, accident, explosion, civil commotion, and acts of any governmental authority, provided, that the party so affected shall give prompt notice thereof to the other.
The Agreement may be terminated by either party immediately in case:
(i) the other party commits a material breach of any provision of the Agreement and fails to rectify such breach within thirty (30) days after notification thereof from the suffered party; or
(ii) the other party commits a non-remedial material breach of any provision of the Agreement; or
(iii) the other party becomes insolvent, ceases its operations, dissolves, files for bankruptcy or bankruptcy protection, appoints receivers, or enters into an arrangement for the benefit of creditors.
Notwithstanding other grounds for termination that may be contained in the Agreement, non-payment of any monies due to Twingly under the Agreement – in addition to any other remedies under Applicable law, such as penalty interest, compensation for costs incurred and suspension of performance until all monies due are duly paid – shall be deemed as a material breach to the Agreement within the meaning set out above.
Upon the termination of the Agreement for any reason (i) all license rights in relation to the right to use of Twingly Data and provision of the Twingly Services granted in the Agreement will terminate and (ii) Customer will immediately delete any and all Twingly Brand Names or Logos from Customer Site. Neither party will be liable to the other party for damages of any sort resulting solely from terminating the Agreement in accordance with its terms.
These Terms and Conditions, together with the applicable Twingly policies, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all earlier understandings or agreements, written or oral, regarding the subject matter.
The Agreement shall be governed by and construed in accordance with the laws of Sweden, exclusive of its choice of law provisions.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be settled by arbitration at the Arbitration Institute of the Stockholm Chamber of Commerce (“the SCC Institute”). The Rules for Expedited Arbitrations shall apply, unless the SCC Institute, taking into account the complexity of the case, the amount in dispute and other circumstances, determines that the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.