Terms of Service
(Effective as of of June 13, 2023)
TERMS AND CONDITIONS FOR THE USE OF THE TALKWALKER PLATFORM AND SERVICES, AS OF JUNE 13, 2023. PLEASE READ BEFORE USE.
This Contract is entered into by: the Company (“Company”) and Talkwalker (“Talkwalker”). Company and Talkwalker are together referred to as the “Parties”.
1.1 “Company Data” means any data, information, or content (including text, images, graphs, statistics, or otherwise) provided, uploaded, or otherwise made available by Company to Talkwalker to conduct an analysis or query.
1.3 “Marketplace” means the dedicated section of the Talkwalker Platform where Developer Apps are made available to Talkwalker’s customers.
1.4 "Order Form" means the document detailing the Services ordered from Talkwalker or through a Partner.
1.6 “Public Screen” means a monitor, screen, or other video output or display placed at a live event, public venue, or in another open-to-the public setting.
1.7 “SLA” means the service level agreement as made available at: https://www.talkwalker.com/service-level-agreement.
1.8 “Talkwalker” means, unless defined otherwise in an Order Form, either:
a. Talkwalker Inc., a Delaware company, with an address at 3616 Far West Blvd., Suite 117 #419, Austin, TX 78731, for customers located in North and South America;
b. Talkwalker KK, with registered office at ARK Hills South Tower 16F, 1-4-5 Roppongi, Minato-ku, Tokyo, Japan for customers located in Japan;
c. Talkwalker Pte. Ltd., with its registered office at 1 Wallich Street, Guoco Tower, #09-01, Singapore 078881 for customers located in the Asia-Pacific region (outside of Japan, Australia, or New Zealand); or
d. Talkwalker S.à.r.l., société à responsabilité limitée, with its registered office at 33 avenue John F. Kennedy, L-1855, Luxembourg, registered with RCS Luxembourg under number B205483 (VAT LU 28470583), for all other customers.
1.9 “Talkwalker Platform” means Talkwalker and its licensors’ proprietary internet-based software as a service application and associated technology made available from time-to-time at www.talkwalker.com and from which the Services are rendered.
1.10 “Talkwalker Services” or “Services” means the services that Talkwalker provides to Company as set out on the Order Form.
1.11 “Third-Party Content” means any data, information, or content originating from or belonging to any third-party.
1.12 “Third-Party Platform” means a third-party from which Talkwalker collects and processes Third-Party Content for Company as part of an analysis or query made on the Talkwalker Platform.
2. CONDITIONS AND RESTRICTIONS OF USE
2.1 From the earlier of the first log on to the Talkwalker Platform or the execution date of an Order Form, Company is responsible for its compliance with the terms and conditions herein and shall ensure that its authorized users will comply with these terms and conditions as if such authorized user was a party to this Contract. Company represents and warrants that (a) such authorized users are employees of Company’s corporate entity and (b) Company and its authorized users are at all times acting in a professional capacity.
2.2 The Services are provided for the period defined in the Order Form (“Term”), along with the subscription details and fees, only to Company and its authorized users, unless otherwise approved by Talkwalker in writing. Company must pay the fees in accordance with the conditions defined in the Order Form.
2.3 The Services are provided as defined in the Order Form and as further detailed in the SLA. Company understands and acknowledges that the Services are dependent upon the availability and completeness of content and data provided by Third-Party Platforms.
2.4 For the Term and within the scope provided in the Order Form, the Services will include the right for Company to generate, view and use analytics and reports for internal business use only. The information, reports, and analytics generated, viewed or received by authorized users on the Talkwalker Platform, constitute “Deliverables” which Company acknowledges may quote or incorporate excerpts of certain material owned by Third-Party Platforms.
2.5 Company and its authorized users must access and use the Services and the Deliverables in accordance with the Basic Conditions of Use (located at https://www.talkwalker.com/basic-conditions-of-use), and the Content Limitations (located at https://www.talkwalker.com/content-limitations), all applicable laws or regulations, including regulations on sanctioned countries, and data protection regulations, including all applicable privacy and data protection laws. Company and authorized users shall not sell, resell, re-publish, or distribute the Deliverables and/or Services without Talkwalker’s prior express written consent.
2.7 Company shall not use the Services as a law enforcement tool or for the tracking of individuals, discrimination of any sort, disciplinary purposes, etc. Further details are provided in the Basic Conditions of Use and Content Limitations.
2.8 Notwithstanding anything contained herein, the rights granted under this Contract may be subject to additional costs and licenses for certain Third-Party Content. Such costs and licenses, if any, shall be detailed on the Order Form.
2.9 Company shall own all right, title and interest in and to all of the Company Data and shall have sole responsibility for the legality of such Company Data. During the Term, and for the sole and exclusive purpose of providing the Services to Company, Company hereby authorizes Talkwalker to use, technically modify and integrate into any other derivative works Company Data, including intellectual property rights, if any.
2.10 Company further grants Talkwalker a fully paid-up, worldwide, non-exclusive, perpetual (surviving termination or expiry of this Contract), irrevocable, sublicensable to Talkwalker’s affiliates, and royalty-free license to use and incorporate into the Services any correction, improvement request, recommendation, suggestion, or other feedback provided by Company.
3. CONFIDENTIALITY AND PUBLICITY
3.1 For the Term of the Contract and for two (2) additional years following its expiry or termination, neither party may use the other’s Confidential Information, as defined below, or disclose it to any other person, other than to its affiliates, for any purpose other than performing its obligations under this Contract. “Confidential Information” includes Company Data, trade secrets, any source code of any software used within or in relation to the Services, the Intellectual Property Rights in and to the Talkwalker Platform, together with any non-public content thereon (which, for the avoidance of doubt, is the confidential information of Talkwalker), any financial information concerning the Parties, any information regarding either party’s business or activities, as well as any information that, by its nature or given the circumstances of its disclosure, should be understood to be confidential..
3.2 Confidential Information does not include any information that (a) was already lawfully in the receiving party’s possession before receipt from the disclosing party; (b) is or becomes publicly available through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party who possessed the same information lawfully and without a duty of confidentiality; (d) is disclosed by, or is disclosed with the permission of, the disclosing party to a third party without a duty of confidentiality on the third party; or (e) is independently developed by the receiving party without a breach of this Section 3.
3.3 Unless Company objects in writing, Talkwalker may disclose that Company is a customer of Talkwalker and Company hereby grants Talkwalker the right to use its name and logo on Talkwalker’s website and in sales material, provided that such right may be revoked at any time upon thirty (30) days prior written notice to Talkwalker.
4. WARRANTIES AND ANTI-CORRUPTION
4.1 General Warranties. Talkwalker warrants that during the Term it will: (a) provide the Services with reasonable skill and care; (b) maintain all known licenses and permissions necessary to perform its obligations under this Contract; and (c) not make a material adverse change to the functionality of the Services unless required by a change in legal environment or the terms and conditions of a Third-Party Platform. Talkwalker and its licensors and suppliers disclaim all other warranties for the Services and/or the Deliverables, whether express, implied, statutory, or otherwise, including any warranty of merchantability, fitness for a particular purpose, satisfactory quality, title, quiet enjoyment or from a course of dealing, course of performance or usage in trade. Any access by Company of any Third-Party Platform or other website via hyperlink from the Services is subject to the terms of service of such Third-Party Platform(s) or website(s) and at Company’s sole risk. Talkwalker makes no warranty whatsoever with respect to the accuracy, availability, completeness, functionality, reliability, security, timeliness, usefulness, or any other aspect of any Third-Party Platform or Third-Party Content or website and the data and information contained thereon or obtained therefrom.
4.2 Anti-Bribery and Anti-Corruption. The Parties represent and warrant that they shall at all times comply with all applicable anti-bribery and anti-corruption related laws, statutes, and regulations (including laws, regulations, ordinances, and legal norms relating to anti-social forces).
5. LIMITATION OF LIABILITY
5.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TALKWALKER SHALL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS Contract, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL OR PUNITIVE DAMAGES OR LOSSES; (B) LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION (IN EACH CASE WHETHER DIRECT OR INDIRECT); (C) LOSS OF BUSINESS, REVENUE, ANTICIPATED PROFITS, CONTRACTS, OR ANTICIPATED SAVINGS (IN EACH CASE WHETHER DIRECT OR INDIRECT); (D) LOSS OF DATA OR USE OF DATA OR SOFTWARE (IN EACH CASE WHETHER DIRECT OR INDIRECT); OR (E) LOSS OF PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND EVEN IF TALKWALKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
5.2 OTHER THAN WITH RESPECT TO FRAUD, GROSS NEGLIGENCE, OR WILlFUL MISCONDUCT OR ANY LIABILITY TO THE EXTENT THAT IT CANNOT BE LIMITED UNDER APPLICABLE LAWS, TALKWALKER’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS (INCLUDING CLAIMS FOR DAMAGES OR LOSSES) ARISING UNDER OR IN CONNECTION WITH THIS Contract, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, IS LIMITED TO THE TOTAL AMOUNT OF THE NET FEES PAID OR PAYABLE FOR THE TALKWALKER SERVICES UNDER THIS Contract IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE (FIRST) EVENT GIVING RISE TO A CLAIM UNDER OR IN CONNECTION WITH THIS Contract. THE FOREGOING LIMITATION OF LIABILITY CONTAINED IN THIS SECTION 5.2 SHALL NOT APPLY WITH RESPECT TO DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE EXISTENCE OF THIS LIMITATION OF LIABILITY IS FACTORED INTO THE PRICING STRUCTURE OF THIS Contract AND/OR ANY ORDER FORMS.
5.3 Under no circumstances shall Talkwalker be liable in the event a Third-Party Platform restricts, either temporarily or permanently, access to Third-Party Content. Company is solely responsible for obtaining, subscribing, installing, maintaining, and operating all adequate software (such as a browser), hardware, computer equipment, or otherwise necessary to use the Services and/or the Deliverables. Talkwalker may not be held liable for any defects or delays in the Services and/or the Deliverables arising as a result of any problem associated with the internet network. Further Talkwalker shall not be held liable or responsible for any act or omission made by Company based on the Deliverables or the Services in general.
5.4 The damages as set forth in Section 5 shall be Company’s exclusive remedy for any breach by Talkwalker of this Contract. To the extent permissible under applicable law, any action against Talkwalker based on or arising out of this Contract or any other legal theory must be brought within one (1) year after the cause of action arises or after expiration or termination of this Contract, whichever is earlier.
6.1 Talkwalker Indemnity Responsibility. Talkwalker will indemnify, defend (at its own cost and expense), hold harmless or settle any third-party claim against Company (including reasonable legal fees and expenses) to the extent that such claim alleges that the technology that the Talkwalker Platform used to provide the Services violate any known third-party intellectual property right, subject to Company’s compliance with the Contract. If an infringement claim appears likely or in the event of any actual claim of infringement, Talkwalker, in its sole discretion, may: (i) modify the Services; (ii) procure the necessary rights for Company to continue using the Services; or (iii) replace the Services or a portion thereof with a functional equivalent. If Talkwalker determines that none of these options are reasonably practical, Talkwalker may without further formality, terminate the Services or a portion thereof. In case of termination, Talkwalker will refund Company any remaining prorated portion of the prepaid fees. Talkwalker has no responsibility for any claim resulting from: (a) Company’s use of Third-Party Platforms, data, and/or content; (b) Company Data or conditions or circumstances of collection of the Company Data by Company; (c) Company’s use of technology not provided or authorized by Talkwalker; (d) Company’s unauthorized combination of the Services and/or the Deliverables with other technology that Company uses or decides to add to the Services and/or the Deliverables, where the infringement would not have occurred but for such combination; (e) Company’s use of the Services and/or the Deliverables in non-compliance with this Contract and/or in violation of applicable law and/or regulation; and (f) the use of the Services and/or the Deliverables by Company after notice to Company of the alleged or actual infringement from Talkwalker or any appropriate authority.
6.2 Company Indemnity Responsibility. Company will indemnify, defend (at its own cost and expense), hold harmless, and/or settle and keep indemnified Talkwalker from and against any third-party claim against Talkwalker (including reasonable legal fees and expenses) arising out of or in connection with any of the following: (a) Company’s use of the Services, Third-Party Content, and/or Third-Party Platforms to which the Services provide access, in breach of this Contract; (b) Company’s non-compliance with the Content Limitations and/or Basic Conditions of Use; (c) Company’s violation of any applicable law or regulation, including applicable privacy and data protection law; and/or (d) Talkwalker’s use of Company Data in accordance with this Contract.
6.3 Indemnification Process. The indemnified party shall: (a) promptly notify the indemnifying party of the claim in writing, (b) cooperate in the defense, (c) allow the indemnifying party to have sole control to defend or settle the claim, and (d) use reasonable efforts to mitigate its losses. The indemnifying party shall: (i) pay all costs associated with defending the claim, (ii) pay all costs associated with any negotiated settlement, (iii) pay all court awarded damages by final court decision, and (iv) not settle a claim unless it contains a release and no admission on the part of the indemnified party.
6.4 Without limiting Section 6.1, in the event of any actual or alleged claim of infringement, Talkwalker reserves the right to: (a) discontinue Company’s use of the Services and/or the Deliverables, (b) block access to the Services and/or the Deliverables (including blocking access to the Talkwalker Platform), and/or (c) make inaccessible or delete all or part of the data that Company entered into the Services or that have been added to Talkwalker’ systems as a result of Company’s use of the Services.
6.5 SECTION 6 CONTAINS COMPANY’S EXCLUSIVE REMEDIES AND TALKWALKER’S SOLE LIABILITY FOR THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
7.1 In the event Company acquires the Services through a third-party company authorized to sell and grant access to the Talkwalker Services (“Partner”), Company shall additionally comply with any terms and conditions of that Partner. Company may contact firstname.lastname@example.org for more information.
7.2 In such an event, any payment of fees and the conditions thereof shall be determined exclusively by the Partner.
7.3 Developer Apps may be available for purchase on the Talkwalker Platform, subject to specific conditions as specified in an Order Form.
8. TERMINATION AND SUSPENSION
8.1 Either party may immediately terminate this Contract in the event of a material breach by the other party upon (a) written notification indicating the nature of the breach and (b) if such breach is capable of being cured and not remedied within ten (10) business days from receipt of such notification (“Cure Period”). Where the Company is the party in breach, during the Cure Period, Talkwalker reserves the right to suspend access to the Services.
8.2 Without affecting any other right or remedy available to it, Talkwalker may immediately suspend access and/or terminate an Order Form and/or this Contract in its entirety under the following circumstances: (a) in the event of a change in the business, legal, or regulatory environment, subject to a three (3) month prior notice to Company; (b) in the event of an adverse judgment, administrative or court order, regulation, or similar, in which case Talkwalker will notify Company immediately of the effective date at which time the Services will be stopped; or (c) in the event of an actual or potential reputational damage to Talkwalker.
8.3 In the event an Order Form and/or this Contract is terminated in accordance with this Section 8: (a) the parties’ rights, duties and responsibilities shall continue in full force during any applicable period of notice; (b) Company shall not be relieved from its outstanding payment obligations and shall immediately pay all outstanding invoices and sums due to Talkwalker in relation to the performance of any Services or delivery of the Deliverables; (c) in respect of Services or Deliverables supplied but for which no invoice has been submitted, Talkwalker may submit an invoice, which shall be payable immediately on receipt; (d) except for the license in Section 2.10, all licenses granted under the Contract shall terminate and any existing Order Forms shall terminate automatically and (e) Talkwalker shall, as a final remedy, reimburse any prepaid fees for the portion of the Services yet to be received.
9.1 Applicable Law and Venue. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION, SUIT, PROCEEDING, OR CLAIM ARISING OUT OF OR CONNECTED WITH THIS CONTRACT OR THE SUBJECT MATTER HEREOF.
a. If Company is located in North or South America, or the territories or possessions of the United States, this Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of the State of Delaware and each party irrevocably agrees that the state and federal courts located in Wilmington, Delaware shall have exclusive jurisdiction to settle any claim (including non-contractual disputes or claims) arising out of in connection with this Contract or its subject matter or formation.
b. If Company is located in a territory within the Asia-Pacific region (excluding Japan, Australia, or New Zealand), this Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of Singapore, without giving effect to any conflict or choice of law provisions. Any and all disputes arising out of or in connection with this Contract will be finally settled by binding arbitration under the Arbitration Rules of the Singapore International Arbitration Center (“Rules”) (which Rules are deemed to be incorporated by reference into this Contract) by one arbitrator, appointed in accordance with the Rules. The arbitration will take place in Singapore and the language of the arbitration will be English.
c. If Company is located in Japan, this Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of Japan, without giving effect to any conflict or choice-of-law provisions. Any and all disputes arising out of or in connection with this Contract will be finally settled by binding arbitration under the Arbitration Rules of the Singapore International Arbitration Center (“Rules”) (which Rules are deemed to be incorporated by reference into this Contract) by one arbitrator, appointed in accordance with the Rules. The arbitration will take place in Singapore and the language of the arbitration will be English.
d. If Company is located in a territory other than those listed in Sections 9.1(a) to 9.1(c), this Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of the Grand-Duchy of Luxembourg and each Party irrevocably agrees that the judicial district of Luxembourg-City shall have exclusive jurisdiction to settle any claim (including non-contractual disputes or claims) arising out of in connection with this Contract or its subject matter or formation.
9.3 Force Majeure. Neither Party shall be in breach of this Contract nor liable for its failure or delay in performing its obligations under this Contract to the extent caused by acts, events, omissions or accidents beyond its reasonable control, including natural disasters, government actions, failure or unavailability of third-party telecommunications, internet, or other services, malicious damage, armed hostilities, acts of terrorism, strikes and blockades, and as otherwise defined by applicable law in Section 9.1 (a “Force Majeure Event”). Notwithstanding the foregoing, the affected party shall use reasonable endeavors to mitigate the effect of a Force Majeure Event.
9.4 Additional Terms. Talkwalker may, in its sole discretion, offer the possibility for its customers to subscribe to additional services, which may be subject to a specific Order Form or a dedicated line in an Order Form or an amendment to the existing Order Form. The following additional terms and conditions shall automatically apply, as applicable:
a. Command Center. The following specific conditions shall apply to the Command Center:
i. Use of the Command Center is strictly limited to display inside of a private building (i.e. not open-to-the-public, to the exclusion of any display on a Public Screen). Under no circumstances shall Company use the Command Center on a Public Screen. For the sake of clarity and for illustrative purposes, the following displays are not allowed: a display in a visitor’s lobby, airport, trade show, etc.
ii. In the event Company wishes to display the Services on a Public Screen, Company must inform Talkwalker and Talkwalker will liaise with Twitter and/or other Third-Party Platforms to seek approval for such Public Screen. Company shall not display the Services on a Public Screen without prior written approval from Talkwalker. Additional terms and conditions may be required as a condition of use.
b. API Service. Specific conditions will be provided to Company by Talkwalker, as set out in an Order Form.
c. Blue Silk GPT. Company’s use of Blue Silk GPT is subject to the terms and conditions available at: https://www.talkwalker.com/blue-silk-gpt-terms.
d. Additional Services. Any additional services accessed through the Talkwalker Platform but delivered by Third-Party Platforms require either a dedicated Order Form, a dedicated line in an Order Form, or a direct subscription form with the relevant Third-Party Platform, such as: LexisNexis, TV Eyes, and Weibo. This list may be updated by Talkwalker from time-to-time without further formality. Company understands and agrees these additional services are being rendered by Third-Party Platforms and as such specific conditions are attached to their access and use. Talkwalker declines any responsibility for those services not under its control.
9.5 Entire Agreement. These Terms of Service, along with the Order Form, Content Limitations, Basic Conditions of Use, SLA, and Data Privacy Addendum (collectively, the “Contract”) constitute the sole and entire agreement of the Parties with respect to the subject matter and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. Electronic copies of signatures will be deemed to be originals and the Parties agree that such electronic signature will satisfy any statutory or other requirements for this document to be in writing and executed by a Party.
9.6 Assignment. Company may not assign, transfer, or otherwise dispose of any of its rights or obligations under this Contract to a third party without the prior written consent of Talkwalker. Talkwalker may assign or transfer this entire Contract (including any Order Forms), which includes all rights and obligations, without Company’s consent to an affiliate or to any successor to all or substantially all of its business that concerns this Contract. This Contract shall be binding upon and inure to the benefit of the Parties and their respective permitted assigns and successors.
9.7 Relationship of the Parties. The Parties are independent contractors and nothing in this Contract shall be construed as creating any relationship of any sort between the Parties other than the one expressly provided by this Contract.
9.8 Non-Waiver. The failure of a Party to insist on strict adherence to any term of this Contract shall not be considered a waiver of any right of such Party.
9.9 Language. In the event this Contract is translated into one or more languages, the English version shall prevail. Any translation of this Contract into any other language shall be for convenience purposes only and shall not be binding on any Party.
9.10 Severability. If any part of this Contract is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect the original intentions of the Parties, and the remaining portions shall remain in full force and effect.
9.11 No Third Parties. A person who is not party to this Contract has no right to enforce any of these terms including (if applicable) under the Contracts (Rights of Third Parties) Act (Cap. 53B) or the Contracts (Rights of Third Parties) Act 1999.
9.12 Survival. Notwithstanding the expiry or termination of this Contract for any reason, Sections 3, 4, 5, 6, 9, and those which by their nature are meant to survive termination, shall continue in full force and effect.
9.13 Interpretation. As used in this Contract, “include,” “includes,” and “including” shall mean “including, without limitation.” The captions and headings used in this Contract are inserted for convenience and ease of reference only.
9.14 Amendments. Talkwalker, at its sole discretion, may amend these terms and conditions and shall notify Company of any material changes via email or by publishing a notice on its website at https://www.talkwalker.com/terms-of-service. However, it is Company’s responsibility to review these terms and conditions regularly and Company’s continued use of the Talkwalker Platform and/or the Talkwalker Services constitutes Company’s acceptance of any such amendments.
9.15 Notices. All notices, demands, and requests will be deemed given when sent by e-mail to the Parties’ e-mail addresses (if to Company: the e-mail address as set forth in the Order Form; if to Talkwalker: email@example.com, with a copy to firstname.lastname@example.org) unless otherwise stated. For contractual purposes, Company: (a) consents to receive communications from Talkwalker in electronic form; and (b) acknowledges and agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Talkwalker provides to Company electronically, including in pdf form, satisfy any legal requirement that such communications would otherwise satisfy if they were to be in writing.
9.16 Contact Details. Company shall notify Talkwalker immediately in the event of a change in contact details by providing the updated information to: email@example.com.