TWIRL PLATFORM - TERMS OF USE
Updated on 30th of June 2023
These Terms of Use shall be deemed incorporated into any contract between a Customer and Twirl for the provision of Services via the Twirl Platform. Twirl has agreed to provide, and the Customer has agreed to use and (where relevant) pay for, the Services on and subject to these Terms of Use:
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in these Terms of Use.
Authorised User(s): those employees and agents of the Customer who are authorised by the Customer to use the Services or, where the Customer is an individual, the Customer.
Applicable Laws: means: to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom; to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Twirl is subject.
Brief: instructions and specifications for the Content posted onto the Platform by the Customer, as approved by Twirl.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.6.
Creators: third-party contractors engaged by Twirl from time to time via the Twirl Platform to provide the Services.
Customer: the person purchasing the Twirl Video Credits for use of the Services.
Customer Personal Data: any personal data which Twirl processes in connection with this agreement, in the capacity of a processor on behalf of the Customer.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679). Final Content: content agreed between the parties to be in a final form to be used by the Customer in accordance with the Brief or which is considered final content in accordance with clause 5.4.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Paid Ads: promoted or paid for advertising on social media or broadcast media or otherwise online, or posting of or publishing Content on print, out-of-home, TV or broadcast media or any other non-online channel.
Permitted Use: the online promotion of the Product on Social Media Platform or such other use as may be expressly set out in a Brief.
Privacy Policy: Twirl’s privacy policies available at https://www.usetwirl.com/privacy-policy (as may be updated from time to time).
Products: the product(s) that are the subject of the Brief. Proposed Content: the initial content provided by Twirl prior to the Customer’s approval. Services: the services provided by Twirl to the Customer under these Terms of Use and via the Twirl Platform in creating the Final Content.
Social Media Platform: the social media platform(s) identified in the Brief.
Twirl: Twirl Technologies Ltd company number 14027638 and with its registered office 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ.
Twirl Video Credits: the credits purchased by the Customer from Twirl through the Twirl Platform in accordance with these Terms of Use.
Twirl Personal Data: any personal data which Twirl processes in connection with this agreement, in the capacity of a controller.
Twirl Platform: Twirl’s online software application(s) accessed at www.usetwirl.com or as may be notified to Authorised Users from time to time.
UK GDPR: has the meaning given to it in the Data Protection Act 2018. Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms of Use.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms of Use.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision at the relevant time.
1.9 A reference to writing or written includes e-mail.
1.10 References to clauses are to the clauses of these Terms of Use.
2. THE SERVICES
2.1 Following acceptance of a Brief by Twirl, Twirl shall make the same available to such Creators as it deems appropriate. Those Creators may (at their discretion) offer to fulfil the Brief, on behalf of Twirl, for the Customer and any such offers shall be presented to the Customer via the Twirl Platform (Creator Offers).
2.2 The Customer may accept one or more Creator Offers via the Twirl Platform, provided they have sufficient Twirl Video Credits available, and such acceptance shall create a contract between Twirl and the Customer for the provision of the Services.
2.3 Twirl shall have the right to reject any Brief that it, in its sole discretion, deems inappropriate, impractical or otherwise unsuitable.
2.4 Twirl’s acceptance of a Brief does not guarantee any Creator Offers.
3. USE OF CONTENT AND PLATFORM
3.1 The Customer agrees to take down any Final Content posted online which includes the Creator's personal identity (such as their face or other identifying factors) upon the request of Twirl or the Creator at any time after 12 months of the date of the provision of the Final Content.
3.2 Subject to clause 3.1 and to the Customer paying for the relevant Twirl Video Credits and complying with these Terms of Use, Twirl grants to the Customer a fully paid-up, worldwide, non-exclusive, royalty-free licence to use, copy and edit (provided that it does not change the character of Creator) the Final Content for the Permitted
Use.
3.3 The Customer shall not (and shall procure that its Authorised Users do not) access, store, distribute or transmit any Viruses, nor any material during the course of, or in connection with, its use of the Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
3.3.6 is otherwise illegal or causes damage or injury to any person or property; and Twirl reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to the Twirl Platform if it breaches the provisions of this clause.
3.4 The Customer shall not (and shall procure that its Authorised Users do not):
3.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted hereunder: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, transmit, or distribute all or any portion of the Twirl Platform, or (b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Twirl Platform; or
3.4.2 access all or any part of the Services to obtain Intellectual Property Rights and/or other knowhow in order to build a product or service which competes, or could compete, with the Services; or
3.4.3 use the Services to provide services to third parties equivalent or akin to the Services save for as set out in clause 11; or
3.4.4 introduce or permit the introduction of any Virus into Twirl’s network and information systems; or
3.4.5 edit the Final Content to change the character of Creators (including but not limited to adding voiceover).
4. INPUT DATA AND PRODUCTS4.1 The Customer shall own all right, title and interest in and to the Brief and shall have sole responsibility for the legality, completeness, integrity, accuracy and quality of the Brief.
4.2 Twirl shall, in providing the Services, use reasonable endeavours to protect the privacy and security of the Brief.
4.3 The Customer grants Twirl unlimited, unrestricted, irrevocable, transferrable and royalty free rights in perpetuity to use the Brief to perform the Services (and improve the Twirl Platform and/or Services).
4.4 The Customer shall, following acceptance of a Creator Offer:
4.4.1 provide the Creator with access to the relevant Products (as described in the Brief) at the Customer’s costs;
4.4.2 provide the Creator with replacement Products in the event any relevant Products arrive damaged or broken at the Customer’s costs; and
4.4.3 provide Twirl with such information regarding the Products as Twirl may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.
4.5 The Customer agrees that any Products supplied to the Creator or Twirl are not considered to be payment towards any Twirl Video Credits.
5. FINAL CONTENT5.1 The Customer acknowledges that:
5.1.1 all Intellectual Property Rights in the Final Content are and will remain the property of Twirl and/or the Creator, as the case may be; and
5.1.2 it shall have no rights in or to the Final Content other than the licence granted under these Terms of Use.
5.2 Whilst Twirl endeavours to ensure the accuracy of the Services, the Customer acknowledged that the Final Content is provided by a Creator who is an individual and has their own personal style as to their performance of the Services. Save as set out in clauses 5.3 to 5.5 (inclusive), Twirl shall not be responsible if the Final Content is not accurate or complete.
5.3 Twirl shall cover the costs associated with 1 (or, subject to clause 10.5, up to 3) free of charge revision of any Proposed Content provided that such Proposed Content (in the reasonable opinion of Twirl) is fundamentally wrong and/or not in accordance with the Brief (Free Video Revision). Any other or subsequent revisions of the Proposed Content will, unless otherwise agreed with Twirl, be charged at the same rate as the original Creator Offer.
5.4 The Customer must provide Twirl with written notice of any changes to the Proposed Content within 7 days of receiving the Proposed Content (Revision Notice). If the Customer has not provided Twirl with a Revision Notice within 7 days after receiving the Proposed Content, the Content will be considered Final Content.
5.5 Subject to clause 5.6 and in the event the Proposed Content (in the reasonable opinion of Twirl) is fundamentally wrong and not in accordance with the Brief after the first revision of the Proposed Content in accordance with clause 5.3, the Customer is entitled to receive a cash refund for the Twirl Video Credits used by the Customer (Twirl Refund) provided the Customer contacts Twirl within 7 days from receipt of the revised Proposed Content.
5.6 The Twirl Refund only applies to the first Brief proposed by the Customer through the Twirl Platform and the Customer shall not under any circumstances qualify for the Twirl Refund in connection with any subsequent Brief.
6. DATA PROTECTION
6.1 For the purposes of this clause 6, the terms controller, processor, data subject, personal data, personal data breach, and processing shall have the meaning given to them in the UK GDPR.
6.2 Both parties will comply with all applicable requirements of the Applicable Laws. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Applicable Laws.
6.3 By entering into this agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Twirl in connection with the processing of Twirl Personal Data, provided these are in compliance with the then-current version of the Privacy Policy. In the event of any inconsistency or conflict between the terms of the Privacy Policy and this agreement, the Privacy Policy will take precedence.
6.4 Without prejudice to clause 6.2 the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Twirl Personal Data and Customer Personal Data to Twirl and lawful collection of the same by Twirl for the duration and purposes of this agreement.
6.5 In relation to the Customer Personal Data, the Privacy Policy sets out the scope, nature and purpose of processing by Twirl, the duration of the processing and the types of personal data and categories of data subject.
6.6 Without prejudice to the generality of clause 6.2 Twirl shall, in relation to the Customer Personal Data:
6.6.1 process that Customer Personal Data only on the documented instructions of the Customer, unless Twirl is required by Applicable Laws to otherwise process that Customer Personal Data. Where Twirl is relying on Applicable Laws as the basis for processing Customer Personal Data, Twirl shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Twirl from so notifying the Customer on important grounds of public interest. Twirl shall inform the Customer if, in the opinion of Twirl, the instructions of the Customer infringe Applicable Data Protection Legislation;
6.6.2 implement the technical and organisational measures set out in the Privacy Policy to protect against unauthorized or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
6.6.3 ensure that any personnel engaged and authorized by Twirl to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
6.6.4 assist the Customer, insofar as this is possible (taking into account the nature of the processing and the information available to Twirl), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under the Applicable Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.6.5 notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
6.6.6 at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless Twirl is required by Applicable Laws to continue to process that Customer Personal Data. For the purposes of this clause 6.6.6, Customer Personal Data shall be considered deleted where it is put beyond further use by Twirl; and
6.6.7 maintain records to demonstrate its compliance with this clause 6.
6.7 The Customer hereby provides its prior general authorisation for Twirl to:
6.7.1 appoint processors to process the Customer Personal Data, provided that Twirl: (a) shall ensure that the terms on which it appoints such processors comply with the Applicable Laws, and are consistent with the obligations imposed on Twirl in this clause 6; (b) shall remain responsible for the acts and omissions of any such processor as if they were the acts and omissions of Twirl; and (c) shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Twirl's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Laws, the Customer shall indemnify Twirl for any losses, damages, costs (including legal fees) and expenses suffered by Twirl in accommodating the objection.
6.7.2 transfer Customer Personal Data outside of the UK as reasonably required for the ongoing provision of the Services, provided that Twirl shall ensure that all such transfers are effected in accordance with Applicable Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Twirl, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
6.8 Twirl may, at any time on not less than 30 days' notice, revise clause 6 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner's Office or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply when replaced by attachment to this agreement, but only in respect of such matters which are within the scope of the Amended Terms.
7. THIRD PARTY PROVIDERS
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Twirl makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Twirl. Twirl recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Twirl does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services and shall have no liability to the Customer for any loss or damage suffered as a result of a Customer accessing and/or using any such third-party website.
8. TWIRL’S OBLIGATIONS
8.1 Twirl undertakes that the Services will be performed with reasonable skill and care.
8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Platform contrary to Twirl’s instructions.
8.3 These Terms of Use shall not prevent Twirl from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided hereunder.
8.4 Twirl warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations hereunder.
9. CUSTOMER’S OBLIGATIONS
9.1 The Customer agrees and undertakes to:
9.1.1 provide Twirl with: (a) all necessary cooperation in relation to these Terms of Use; and (b) all necessary access to such information as may be required by Twirl, in order to provide the Services;
9.1.2 comply with all applicable laws and regulations with respect to its activities hereunder;
9.1.3 carry out all other Customer responsibilities set out in these Terms of Use in a timely and efficient manner;
9.1.4 ensure that the Authorized Users use the Services in accordance with these Terms of Use and shall be responsible to Twirl for any Authorized User’s breach of these Terms of Use; and
9.1.5 obtain and shall maintain all licenses, consents, and permissions in connection with the Products that are required for Twirl, and its Creators to perform their obligations hereunder.
9.2 The Customer shall own all right, title and interest in and to its Briefs that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Briefs.
10. CHARGES AND PAYMENT
10.1 The Customer shall, unless otherwise agreed with Twirl, pay Twirl for the Twirl Video Credits in advance via the Twirl Platform.
10.2 Where Twirl has agreed to allow a Customer to pay for Twirl Video Credits in arrears, it shall invoice the Customer for the number of Twirl Video Credits used monthly in arrears, payable within 7 days.
10.3 If Twirl has not received payment by the due date, and without prejudice to any other rights and remedies of Twirl:
10.3.1 Twirl may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Twirl shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
10.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.4 All amounts and fees paid to Twirl pursuant to these Terms of Use (including but not limited to payments for Twirl Video Credits):
10.4.1 shall be payable in pounds sterling; and
10.4.2 are non-cancellable and non-refundable.
10.5 Should the Customer acquire:
10.5.1 more than 10 Twirl Video Credits in a single transaction then that Customer shall be entitled to an additional Free Video Revision (so a total of 2 Free Video Revisions); and
10.5.2 more than 20 Twirl Video Credits in a single transaction then that Customer shall be entitled to 2 additional Free Video Revisions (so a total of 3 Free Video Revisions), in each case, in respect of Proposed Content bought using those Twirl Video Credits.
11. AGENTS
11.1 Where a Customer is acting as an agent (Agent) on behalf of a third-party being the owner or distributor of the relevant Product, owns the Product (Brand), this clause 11 shall apply. If the Customer is acting solely on its own behalf, this clause 11 shall not apply.
11.2 The Customer warrants and represents that it has the right to license the Intellectual Property Rights in the Products from the Brand to Twirl and to any Creator through Twirl in accordance with these Terms of Use.
11.3 Subject to the Agent procuring that the Brand complies with these Terms of Use as if it were the Customer, all licences and other rights granted to the Customer under these Terms of Use may be sub-licensed and/or exercised by the Brand as if it were the Customer.
11.4 The Agent’s Permitted Use of any Final Content shall be limited to using that Final Content to fulfil its obligations to the Brand and/or in accordance with the Brand’s instructions and for no other purpose (including, but not limited to, any promotion of the Agent).
12. CONFIDENTIALITY
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations hereunder. A party's Confidential Information shall not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2 was in the other party's lawful possession before the disclosure;
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2 Subject to clause 12.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than complying with its obligations under these Terms of Use.
12.3 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 its employees or agents in violation of these Terms of Use.
12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Twirl's Confidential Information.
12.7 The parties acknowledge that damages may be an insufficient remedy for breach of the undertakings set out in this clause 12 of these Terms of Use and that in addition, without prejudice to all other remedies available to the disclosing party, the disclosing party shall be entitled to specific performance, injunction or other equitable relief as a remedy for such breach.
12.8 The above provisions of this clause 12 shall survive termination of the Contract, however arising.
12.9 Twirl may announce on its website (or otherwise) that it has entered into an agreement to provide services to the Customer and include a graphical representation of the Customer’s logo along with such announcement.
12.10 Twirl may use the Final Content on its website (or elsewhere at Twirl's sole discretion) for marketing purposes.
12.11 The Creator may use the Final Content on their website, portfolio, social media or elsewhere at their sole discretion.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided herein:
13.1.1 the Customer assumes sole responsibility for its use of any Final Content and the consequences thereof;
13.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms of Use; and
13.1.3 the Services are provided to the Customer on an "as is" basis.
13.2 Nothing in these Terms of Use excludes the liability of Twirl:
13.2.1 for death or personal injury caused by Twirl's negligence; or
13.2.2 for fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.1 and clause 13.2:
13.3.1 Twirl shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms of Use; and
13.3.2 Twirl's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the provision of the Services shall be limited to the amount actually received by Twirl from the relevant Customer over the preceding 12 months.
14. FORCE MAJEURE
Twirl shall have no liability to the Customer under these Terms of Use if it is prevented from or delayed in performing the Services, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Twirl or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
15. WAIVER
No failure or delay by a party to exercise any right or remedy provided under these Terms of Use or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. SEVERANCE
If any provision (or part of a provision) of these Terms of Use is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17. ENTIRE AGREEMENT
17.1 These Terms of Use, and the documentation specifically referred to herein, constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
17.2 Each party acknowledges it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out or referred to in these Terms of Use.
17.3 Nothing in this clause shall limit or exclude any liability for fraud.
to its subject matter.
17.2 Each party acknowledges it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out or referred to in these Terms of Use.
17.3 Nothing in this clause shall limit or exclude any liability for fraud.
18. VARIATIONS
Twirl reserves the right, with the Customer’s consent not to be unreasonably withheld or delayed (and delay shall in this instance mean 10 days, after which the Customer shall be deemed to consent), to vary these Terms of Use by posting revised terms on its website and giving the Customer notice of the same.
19. ASSIGNMENT
19.1 The Customer shall not, without the prior written consent of Twirl, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms of Use.
19.2 Twirl may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations. Twirl shall remain responsible for the acts and/or omissions of its assignees or sub-contractors.
20. NO PARTNERSHIP OR AGENCY
Nothing in these Terms of Use is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. NO EXCLUSIVITY
The Customer agrees that neither Twirl nor any Creator is bound by any exclusivity obligations in relation to the provision of the Services to the Customer. Nothing in clause 12 shall prevent Twirl from providing Services to any Brand or other third party.
22. THIRD PARTY RIGHTS
Saves as otherwise set out here, these Terms of Use do not confer any rights on any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
23. NOTICES
23.1 Any notice required to be given shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered address, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as follows:
23.1.1 the Customer’s contact email address as set out in any Brief (or otherwise provided by the Customer);
23.1.2 Twirl’s email address shall be brands@usetwirl.com, each as may be updated from time to time by notice in writing to the other party.
23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown on the sender’s server).
GOVERNING LAW
These Terms of Use and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms of Use or its subject matter or formation (including non-contractual disputes or claims).
