Last updated 18th August 2021
Bowimi has developed software applications and a platform through which it’s customers can record and organise data for field sales and marketing activities. These Terms and Conditions (Terms) will apply to the Brand’s use of Bowimi’s services.
1 DEFINITIONS AND INTERPRETATION
1.1 The following definitions apply in these Terms:
Bowimi: Bowimi Limited (registered number 11641407) whose registered office is at 1 Widcombe Crescent, Bath, England, BA2 6AH.
Bowimi Platform: Bowimi’s proprietary platform through which it provides the Services.
User: an individual who has downloaded the Bowimi app or has access to the Bowimi Platform and has been enlisted by the Brand to use the Bowimi Services.
Brand: a brand owner who has registered an account with Bowimi.
Brand Content: means any content, documents, files and materials uploaded to the Bowimi Platform or provided to Bowimi by the Brand.
Confidential Information: all confidential and proprietary information belonging to a disclosing party including (without limitation) any content, document, image or any information relating to the (i) the Services, (ii) the financial affairs, business, clients, suppliers or market opportunities of the disclosing party and (iii) the data, operations, processes, product information, know how, technical information or trade secrets of the disclosing party, in whatever medium (including oral, visual or electronic form) and including all confidential information identified at the time of disclosure or confirmed in writing as confidential, as well as any information that, due to the circumstances under which it is disclosed, a reasonable person would infer as being confidential.
Confirmation: written confirmation issued by Bowimi with full details of any Services to be provided from time to time.
Contract: the contract between Bowimi and the Brand for the supply of Services in accordance with these Terms.
Minimum Term: the minimum term (if any) of the Contract, as agreed in writing between Bowimi and the Brand.
Services: the services to be provided by Bowimi under these Terms via its Software and proprietary.
Software: the proprietary software and tools used by Bowimi to provide the Services.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and their respective personal representatives, successors and permitted assigns.
1.3 Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 A reference to writing or written includes email.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.7 A reference to these Terms (or to any other agreement or document referred to in these Terms) is a reference of these Terms (or such other agreement or document) as may be varied from time to time.
1.8 Any words following the terms including, include, in particular, for example or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9 References to Clauses and Schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant Schedule to these Terms. Clause and Schedule headings will not affect the interpretation of these Terms.
2.1 By registering an account with Bowimi via the Bowimi Platform, the Brand enters into the Contract with Bowimi and agrees that these Terms will apply to all its use of the Services to the exclusion of any other terms the Brand seeks to include or which are implied by law, practice or course of dealing. The Brand agrees to comply with these Terms at all times in its use of the Services.
2.2 Each party warrants that it has all requisite power and authority to enter into the Contract and its entry into the Contract does not violate or constitute a breach of any other agreement to which it is a party or otherwise bound.
2.3 Full details of any Services that are requested by a Brand via the Bowimi Platform or otherwise from time to time will be confirmed by Bowimi via a Confirmation. Bowimi will not be under any obligation to provide any Services unless and until such Confirmation has been issued.
3 SUPPLY OF SERVICES
3.1 Bowimi warrants as follows:
3.1.1 the Services will conform substantially with any specification or description provided by Bowimi.
3.1.2 it will provide the Services with reasonable care and skill and in accordance with current best practice within Bowimi’s industry; and
3.1.3 it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
3.2 If the Services do not conform with the warranties in Clause 3.1, Bowimi will use reasonable commercial endeavours to correct any non-conformance promptly or provide the Brand with an alternative means of accomplishing the desired performance. If Bowimi is unable to provide either of these solutions within a period of thirty (30) days from notification of the non-conformance, the Brand will be entitled to terminate the Contract by immediate written notice. Such correction or remedy constitutes the Brand’s sole and exclusive remedy for breach of the warranties in relation to the Services.
3.3 Bowimi will fix any faults and errors in the Software which it becomes aware of as soon as reasonably possible, however, Bowimi does not warrant: (a) that the Brand’s use of the Services will be uninterrupted or will be free from minor non-critical faults or errors which do not materially affect the functionality of the Services; or (b) that the Services will meet the Brand’s business requirements.
3.4 The warranties given at Clause 3.2 above will not apply to any non-conformance which is caused by the use of the Services contrary to Bowimi’s instructions, or due to any modification or alteration of the Services by any party other than Bowimi or its authorised contractors.
3.5 Bowimi will not be responsible for any delays, delivery failures, or any other loss or damage resulting from the Services or the transfer of data over communications networks and facilities, and the Brand acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.6 Bowimi will provide the Services using infrastructure, software and services as selected by Bowimi. Such specification is subject to change at any time at Bowimi’s sole discretion provided this does not have a material detrimental effect on the delivery of the Services.
3.7 Except for the express warranties contained in these Terms, neither party makes any warranties to the other party, express or implied, including, without limitation, any implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care. All such other conditions, warranties and terms are hereby disclaimed.
4 USE OF THE SERVICES
4.1 Subject to the Brand’s compliance with these Terms, Bowimi hereby grants to the Brand a non-exclusive, non-transferable right to access and use the Services.
4.2 The Brand will:
4.2.1 provide Bowimi with all necessary information, access and co-operation as may be required by Bowimi in order to provide the Services; and
4.3 The Brand will not, except to the extent expressly permitted by these Terms or by applicable law:
4.3.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
4.3.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
4.4 The Brand will not:
4.4.1 access or use all or any part of the Services or Software in order to: (a) build a product or service which competes with the Services; or (b) copy any ideas, features, functions or graphics of the Services; or
4.4.2 use the Services or Software to provide services to third parties (other than as expressly permitted under these Terms); or
4.4.3 licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Software available to any third party; or
4.4.4 attempt to obtain, or assist third parties in obtaining, access to the Services or Software, other than as provided under these Terms.
4.5 The Brand will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Bowimi.
4.6 The Brand is responsible for ensuring that its network and systems and telecommunications links meet any hardware, operating system, browser and other technical requirements notified by Bowimi which are necessary to properly use and access the Services.
5 AUTHORISED USERS
5.1 Bowimi will ensure that any user credentials (which may include usernames and passwords or other authentication information) necessary for the Brand’s employees or representatives to use or access the Services are issued.
5.2 The Brand will be responsible and liable for all use of the Services by its Users, employees, representatives (including any misuse of the Services via its account) and undertakes to ensure that:
5.2.1 each user keeps confidential and secure the password and/or other authentication information assigned to then for their use of the Services;
5.2.2 each user uses and accesses the Services in compliance with these Terms, in particular, Clause 4.
6 Data Package and Usage
6.1 The Brand acknowledges that the Software requires an active Internet connection and that, if Users’ devices are not connected to Wi-Fi, the Software will use the data connection available on the device (and therefore the data loaded on the device).
6.2 Bowimi expressly recommends to the Brand that the Brand restrict out-of-bundle data options and availability on all User devices in order to avoid accidental or excessive data costs.
6.3 Under no circumstances will Bowimi be liable to the Brand or Users for any data costs relating to the use of the Software.
7.1 Bowimi will use commercially reasonable endeavours to maintain availability of the Services 24 hours a day, seven days a week, excluding where availability is interrupted due to necessary maintenance (which will be kept to the minimum time possible)
7.2 Bowimi may update the Services from time to time to correct any errors or add new functionality. Bowimi will ensure that no maintenance update or new version will adversely affect the existing facilities or functionality of the Services. If it is necessary for Bowimi to remove any affected functionality in order to mitigate against a virus or vulnerability, Bowimi will inform the Brand in writing as soon as possible and will take all reasonable steps to restore functionality as soon as possible.
8.1 The Brand will pay all fees and other amounts payable under these Terms as notified by Bowimi in accordance with this Clause 8.
8.2 Fees for any Services to be provided by Bowimi are payable by direct debit or by invoice.
8.3 Unless otherwise expressly agreed to in writing by Bowimi, all invoices will be due within thirty (30) days from date of invoice. All amounts and fees stated or referred to in these Terms are: (a) payable in pounds sterling (unless expressly stated otherwise) to Bowimi’s nominated bank account; (b) exclusive of VAT (which will be added to Bowimi’s invoice(s) at the appropriate rate); and (c) non-cancellable and non-refundable (except as set out in Clause 13.7).
8.4 If Bowimi has not received payment by the due date, without prejudice to any other rights and remedies of Bowimi: (a) Bowimi may, without liability to the Brand, disable the Brand’s account and access to all or part of the Services and Bowimi will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest will accrue on a daily basis on such due amounts at an annual rate of 4% above the Bank of England base lending rate from the due date until paid.
9 INTELLECTUAL PROPERTY
9.1 The Brand acknowledges and agrees that Bowimi and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated, these Terms do not grant the Brand any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
9.2 Bowimi confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.
10.1 The Brand will defend, indemnify and hold harmless Bowimi against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any use by the Brand of the Services in breach of these Terms, including any breach by the Brand of Clause 5.9.
10.2 The Brand will promptly notify Bowimi if it becomes aware of any claim that its use of the Services infringes the rights of any third party. Bowimi will defend the Brand against any such claim and will indemnify the Brand against any amounts awarded against the Brand in judgment or settlement of such claims, provided that:
10.2.1 Bowimi is given prompt notice of any such claim;
10.2.2 the Brand provides reasonable co-operation to Bowimi in the defence and settlement of such claim, at Bowimi’s expense;
10.2.3 the Brand immediately ceases to use the Services; and
10.2.4 Bowimi is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, Bowimi may procure the right for the Brand to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on immediate written notice to the Brand without any additional liability or obligation to pay liquidated damages or other additional costs to the Brand.
10.4 Bowimi’s indemnification obligations under Clause 11.2 do not cover third-party claims arising from:
10.4.1 a modification of the Services or Software by anyone other than Bowimi;
10.4.2 the Brand’s use of the Services or Software in a manner contrary to the instructions given by Bowimi or in breach of these Terms;
10.4.3 the Brand’s use of the Services or Software in combination with any software or products which have not been approved by Bowimi; or
10.4.4 the Brand’s use of the Services or Software after notice of the alleged or actual infringement from Bowimi or any appropriate authority.
11.1 Each party acknowledges that it may receive or be given access to Confidential Information of the other party in performance of its obligations or exercise of its rights under these Terms. Neither party will disclose any Confidential Information belonging to and received from the other to any third party or use any such Confidential Information for any purpose other than as necessary for the purposes of these Terms. This obligation will not apply to Confidential Information which is: (i) in the public domain other than due to a breach of an obligation of confidence; (ii) known to both parties prior to disclosure; or (iii) required to be disclosed by law.
11.2 Each party will protect the other party’s Confidential Information from unauthorised disclosure and use with the same degree of care that party uses to protect its own like information, but in no event less than a reasonable degree of care.
11.3 Neither party will disclose or circulate the other party’s Confidential Information within its own organisation except to those employees, agents, sub-contractors or consultants who (i) need to know such information in connection with the performance of these Terms and (ii) are subject to confidentiality obligations with terms no less restrictive than as set out in this Clause 11.
11.4 The Brand acknowledges that details of the Services and the pricing under these Terms and any Confirmation constitute Bowimi’s Confidential Information and may not be used by the Brand other than as authorised under these Terms.
11.5 The Brand agrees that Bowimi will be entitled to include the Brand’s name and logo on its website and materials in order to publicise and describe its business.
11.6 This Clause 11 will survive any termination of these Terms and each party will promptly action any requests from the other to securely destroy or return Confidential Information in its possession or under its control as appropriate and to certify in writing to the other that it has done so.
12 LIMITATION OF LIABILITY
12.1 This Clause 12 sets out the entire financial liability of the parties (including any liability for the acts or omissions of employees, agents and sub-contractors) to the other: (a) arising under or in connection with these Terms; (b) in respect of any use made by the Brand of the Services or any part of them; and (c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
12.2 Nothing in these Terms excludes the liability of either party:
12.2.1 for death or personal injury caused by that party’s negligence;
12.2.2 for fraud or fraudulent misrepresentation; or
12.2.3 for any other matter which cannot be limited or excluded by law.
12.4 Neither party will be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, revenue, business, goodwill and/or similar losses or loss or corruption of data or information, pure economic loss, or for any special, or indirect loss, costs, damages, charges or expenses however arising under these Terms.
12.5 Each party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with these Terms will be limited as follows:
12.5.1 each party’s total aggregate liability in respect of breach of confidentiality or under the indemnities in Clause 11 will be limited to £1 million;
12.5.2 each party’s total aggregate liability in respect of any other loss will be limited to the aggregate fees payable by the Brand during the twelve (12) months immediately preceding the date on which the claim arose.
13 TERM AND TERMINATION
13.1 The Contract will commence when the Brand registers an account with Bowimi and will continue until or unless terminated by either party in accordance with this Clause 14 or otherwise under the Contract.
13.2 After the end of the Minimum Term (if any), either party may terminate the Contract at any time by giving at least thirty (30) days’ written notice to the other party.
13.3 Bowimi may terminate the Contract, in whole or in part, with immediate effect by giving written notice to the Brand if any licence on which Bowimi relies to provide the Services is revoked or expires and Bowimi is unable to provide the Services by an alternative means.
13.4 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.4.1 the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
13.4.2 the other party commits a material breach of any other term within these Terms for which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
13.4.3 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; and/or
13.4.4 the other party passes a resolution for winding up (otherwise than for the purposes of a solvent amalgamation or reconstruction) or a court makes an order to that effect or becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors or has a liquidator, receiver, administrator, trustee or similar officer appointed over any or all of its assets or ceases, or threatens to cease, to carry on business.
13.5 Bowimi may suspend the Brand’s access to the Services at any time with immediate effect in the following circumstances:
13.5.1 if the Brand fails to pay any invoice by the due date; or
13.5.2 if the Brand’s use of the Services violates any applicable laws or breaches any of these Terms.
For the avoidance of doubt, the Brand will remain liable to pay any fees due during the period of the suspension.
13.6 On termination of these Terms for any reason:
13.6.1 all rights and authorisations granted under these Terms will immediately terminate and the Brand will cease to use the Services;
13.6.2 the Brand will immediately pay to Bowimi any outstanding invoices and Bowimi will invoice the Brand in respect of any Services which have been provided but not previously invoiced, such invoice will be payable immediately on receipt.
13.6.3 Bowimi will immediately delete from the Services any stored Brand Content; and
13.6.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Terms which existed at or before the date of termination will not be affected or prejudiced.
13.7 If Bowimi terminates these Terms under Clause 13.2 or 13.3, Bowimi will refund the Brand (on a pro rata basis) for any fees which the Brand has paid for Services that have not been provided.
13.8 In addition to those provisions which by their nature are intended to survive any termination of these Terms, Clauses 5, 9, 10, 11, 12, 15 and 17 of these Terms will survive such termination or expiration.
14 FORCE MAJEURE
14.1 Bowimi will have no liability to the Brand if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events or omissions beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Bowimi or any other party), failure of a service, transport, telecommunications or internet network, act of God, epidemic or pandemic, war, riot, civil commotion, malicious damage, terrorism (or threats thereof), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Brand is notified of such an event.
15.1 The Brand undertakes that, whilst the Contract is in force and for twelve (12) months after termination, it will not, without the prior written consent of Bowimi, solicit or entice away from Bowimi or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Bowimi party in relation to the provision of the Services.
15.2 Any consent given by Bowimi in accordance with Clause 15.1 will be subject to the Brand paying to Bowimi a sum equivalent to 50% of the then current annual remuneration of Bowimi’s employee, consultant or subcontractor.
16.1 No variation of these Terms will be effective unless it is in writing and signed by the parties.
16.2 No failure or delay to exercise any right or remedy provided under these Terms or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
16.3 Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
16.4 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
16.5 The Contract, and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
16.6 Each party agrees that it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it will have no claim for innocent or negligent misrepresentation based on any statement in these Terms.
16.7 Subject to Clause 16.8, neither party may without the prior written consent of the other, assign, transfer, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms (such consent not to be unreasonably withheld or delayed).
16.8 Bowimi may:
16.8.1 sub-contract the provision of the Services provided that Bowimi will be liable for the acts and/or omissions of its subcontractors as if they were Bowimi’s acts and/or omissions; and
16.8.2 assign its rights under these Terms to any person to which it transfers its business.
16.9 The Contract does not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16.10 Nothing in these Terms is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise either party to make or enter into any commitments for or on behalf of any other party.
16.11 Any notice required to be given under these Terms will be in writing and sent by first-class post or recorded delivery or by email to the other party at its address set out in these Terms, or such other address as may have been notified by that party for such purposes. A notice delivered by email will be deemed to have been received when delivered, or if delivery is not in business hours, at 9am on the first business day following delivery (provided that, in the case of email, the sender has not been notified that the email failed to be delivered). A correctly addressed notice sent by pre-paid first-class post or recorded delivery will be deemed to have been received at the time at which it would have been delivered in the normal course of post. This Clause 16.11 does not apply to the service of any proceedings or any documents in any legal action.
17 GOVERNING LAW AND JURISDICTION
17.1 The Contract and these Terms will be governed by and construed in accordance with the law of England and Wales. The courts of England and Wales will have exclusive jurisdiction to settle any matter arising out of or in connection with these Terms.