TERMS AND CONDITIONS FOR THE ACCESS AND USE OF THE TALKWALKER PLATFORM AND SERVICES, AS OF January 7, 2021. PLEASE READ BEFORE USE.
This Agreement is entered into by:
The Client (“Client” or a “Party”) and Talkwalker (“Talkwalker”, or a “Party”). Client and Talkwalker are together referred to as the “Parties”.
1.1 “Client Data” means any data, information, or content (including text, image, graphs, statistics, or otherwise) provided or made available by Client to Talkwalker to conduct an analysis or query.
1.2 "Order Form" means the document detailing the Services ordered from Talkwalker or through a Partner.
1.4 “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.
1.5 “SLA” means the service level agreement made available at: https://www.talkwalker.com/service-level-agreement.
1.6 “Talkwalker” means, unless defined otherwise in an Order Form, either:
(a) Talkwalker, Inc., a Delaware company, with offices at 450 Lexington Avenue, 26th Floor, New York, NY 10017, United States, for clients located in North and South America; or
(b) Talkwalker KK, with registered office at ARK Hills South Tower 16F, 1-4-5 Roppongi, Minato-ku, Tokyo, Japan for clients located in Japan; or
(c) Talkwalker Pte. Ltd., with its registered office at 1 Wallich Street, Guoco Tower, #09-01, Singapore 078881 for clients located in the Asia-Pacific region (outside of Japan); or
(d) Talkwalker S.à.r.l., société à responsabilité limitée, with its registered office at 12-16, avenue Monterey, L-2163 Luxembourg, registered with RCS Luxembourg under number B205483 (VAT LU 28470583), for all other clients.
1.7. “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.
1.8 “Talkwalker Services” or “Services” means the services made available by Talkwalker on the Talkwalker Platform, consisting of certain social media and online media monitoring tools for brand monitoring and analytics, as they are then available. Certain additional services may also be included subject to specific financial and contractual conditions, as defined in Section 10.3.
1.9 “Third-Party Content” means any data, information, or content originating from or belonging to any Third-Party Platform.
1.10 “Third-Party Platform” means a third-party social-media website (including Twitter, Facebook, etc.) or any online-media (including blogs, message boards, news and review sites, and any other sources) from which Talkwalker may retrieve Third-Party Content as part of a query made on the Talkwalker Platform, and which Client may access discretionarily through the Services.
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, Client 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 Agreement. Client represents and warrants that (a) such authorized users are members of Client’s organization and (b) Client 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 financial conditions, only to Client and its authorized users, unless otherwise approved by Talkwalker in writing. The Order Form sets out the fees for the Services and Client must pay the fees in accordance with the conditions defined therein and in accordance with the Agreement.
2.3 The Services are provided under certain conditions as detailed in the SLA and further in this Agreement. Client understands and acknowledges that the Services are dependent upon the availability and completeness of content and data provided by Third-Party Platforms.
2.4 The Services include the right for Client to access and use the Talkwalker Platform and Services, as they are detailed in the Order Form, during the Term and in accordance with the conditions set out in this Agreement, to generate and view analytics and reports for internal business use only. The information, reports, and analytics consulted on the Talkwalker Platform constitute “Deliverables” which Client acknowledges may quote or incorporate excerpts of certain material owned by Third-Party Platforms.
2.5 Client must access and use the Services in accordance with the content limitations that can be found at https://www.talkwalker.com/content-limitations (“Content Limitations”), certain rules applicable to the access and use of the Services that can be found at https://www.talkwalker.com/basic-conditions-of-use (“Basic Conditions of Use”), all applicable laws or regulations, including regulations on sanctioned countries, and data protection regulations, including all applicable privacy and data protection laws. Client shall not use the Services for a purpose other than brand monitoring and brand analytics. Client shall not sell, resell, re-publish, or distribute the Deliverables and/or Services without Talkwalker’s prior express written consent.
2.7 Client 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 Agreement 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 During the Term, and for the sole purpose of providing the Services to Client, Client hereby authorizes Talkwalker to use, technically modify and integrate into any other derivative works Client Data, including intellectual property rights, if any.
2.10 Client further grants Talkwalker a worldwide, perpetual (surviving termination or expiry of this Agreement), 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 Client.
3. CONFIDENTIALITY AND PUBLICITY
3.1 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 Agreement. “Confidential Information” includes Client Data, trade secrets, any source code of any software used within or in relation to the Services, any financial information concerning the Parties, any information regarding either Party’s business or activities, as well as any information that, by nature or given the circumstances of its disclosure, should be understood to be confidential. Client acknowledges that Talkwalker does not wish to receive any Confidential Information from Client that is not necessary for Talkwalker to perform its obligations under this Agreement, and, unless the Parties specifically agree otherwise, Talkwalker may reasonably presume that any unrelated information received from Client is not Confidential Information.
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 Agreement.
3.3 Unless Client objects in writing, Talkwalker may disclose that Client is a customer of Talkwalker and Client 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 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 licenses and permissions necessary to perform its obligations under this Agreement; 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, whether express, implied, statutory, or otherwise, including any warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment or from a course of dealing, course of performance or usage in trade. Any access by Client 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 Client’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. In connection with the services performed under this Agreement and Client’s use of Talkwalker’s products and services, 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 AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES; AND (B) LOSS OF GOODWILL, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA OR 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.
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 DAMAGES OR CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, 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 AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE (FIRST) EVENT GIVING RISE TO A CLAIM UNDER OR IN CONNECTION WITH THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE EXISTENCE OF THIS LIMITATION OF LIABILITY IS FACTORED INTO THE PRICING STRUCTURE OF THIS AGREEMENT 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 in such a manner that would cause any part of the content provided through the Services to no longer be accessible to Client. Client 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 of the Services. Talkwalker may not be held liable for any defects or delays in the Service arising as a result of any problem associated with the internet.
5.4 The damages as set forth in Section 5 shall be Client’s exclusive remedy for any breach by Talkwalker of this Agreement.
5.5 To the extent permissible under applicable law, any action against Talkwalker based on or arising out of this Agreement 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 Agreement, whichever is earlier.
6.1 Talkwalker Indemnity Responsibility. Talkwalker will defend or settle any third-party claim against Client to the extent that such claim alleges Talkwalker’s technology used to provide the Services violates any third-party intellectual property right, subject to Client’s compliance with this Agreement. If an infringement claim appears likely, Talkwalker, in its sole discretion, may modify the Services, procure the necessary rights, or replace the Services or a portion thereof with a functional equivalent. If Talkwalker determines that none of these options are reasonably available, Talkwalker may, without further formality, terminate the Services or a portion thereof. In case of termination, Talkwalker will refund Client any remaining prorated portion of the prepaid fees. Talkwalker has no obligation for any claim resulting from: (a) Client’s use of Third-Party Platforms, data, and/or content; (b) Client Data; (c) Client’s use of technology not provided or authorized by Talkwalker; (d) Client’s unauthorized combination of the Services with other technology that Client uses or decides to add to the Services, where the infringement would not have occurred but for such combination; or (e) Client’s use of the Services in non-compliance with this Agreement and/or in violation of applicable law and/or regulations.
6.2 Client Indemnity Responsibility. Client will indemnify, defend, hold harmless, and/or settle any third-party claim against Talkwalker arising out of any of the following: (a) Client’s use of the Services, Third-Party Content, and/or Third-Party Platforms to which the Services provide access, in breach of this Agreement; (b) Client non-compliance with any term of this Agreement, including non-compliance with the Content Limitations; and/or (c) Client’s violation of any applicable laws or regulations, including applicable privacy and data protection laws.
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 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) any negotiated settlement, (iii) court awarded damages by final court decisions, and (iv) not settle a claim unless it contains a release and no admission on the part of the indemnified party.
6.4 In the event of a claim, Talkwalker reserves the right to: (a) discontinue Client’s use of the Services, (b) block access to the Services, and/or (c) make inaccessible or delete all or part of the data that Client entered into the Services or that have been added to Talkwalker’ systems as a result of Client’s use of the Services.
6.5 SECTION 6 CONTAINS CLIENT’S EXCLUSIVE REMEDIES AND TALKWALKER’S SOLE LIABILITY FOR THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
7.1 In the event Client acquires the Services through a third-party company authorized to sell and grant access to the Talkwalker Services (“Partner”), Client shall additionally comply with any terms and conditions of that Partner. Client may contact email@example.com for more information.
7.2 In such an event, any payment of fees and the conditions thereof shall be determined exclusively by the Partner.
8. TERMINATION AND SUSPENSION
8.1. Either Party may immediately terminate this Agreement 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 Client is the party in breach, during the Cure Period, Talkwalker reserves the right to suspend access to the Services.
8.2. Talkwalker may suspend access and/or terminate an Order Form and/or this Agreement in its entirety under the following circumstances: (a) in the event of a change in the business, legal, or regulatory environment that Talkwalker assesses jeopardizes the economic viability of Talkwalker’s business model, subject to a three (3) month prior notice to Client; or (b) in the event of a judgment, administrative or court order, regulation, or similar, in which case Talkwalker will notify Client immediately of the effective date at which time the Services will be stopped.
8.3. In the event this Agreement is terminated for any reason, Client shall not be relieved from its outstanding payment obligations for the period prior to the effective date of termination but 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 AGREEMENT OR THE SUBJECT MATTER HEREOF.
(a) If Client is resident in North or South America, or the territories or possessions of the United States, the governing law and forum shall be the laws and courts of the State of New York and shall be adjudicated exclusively in the County of New York, State of New York.
(b) If Client is resident in a territory within the Asia-Pacific region, the governing law shall be 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 Agreement will be finally settled by binding arbitration under the Arbitration Rules of the Singapore International Arbitration Centre (“Rules”) (which Rules are deemed to be incorporated by reference into this Agreement) 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 Client is resident in Japan, the governing law shall be 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 Agreement will be finally settled by binding arbitration under the Arbitration Rules of the Singapore International Arbitration Centre (“Rules”) (which Rules are deemed to be incorporated by reference into this Agreement) 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 Client is resident in a territory other than those listed in Sections 9.1(a) to 9.1(c), the governing law and forum shall be the laws and courts of the Grand-Duchy of Luxembourg and shall be adjudicated exclusively in the judicial district of Luxembourg-City.
9.3. Force Majeure. Neither Party shall be held liable in the event of a breach to the extent caused by a force majeure event, 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 offers the possibility for its customers to subscribe to additional services, 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 be automatically 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 Client 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, fair show, etc.
(ii) In the event Client wishes to display the Services on a Public Screen, Client must inform Talkwalker and Talkwalker will liaise with Twitter and/or other Third-Party Platforms to seek approval for such Public Screen. Additional terms and conditions may be required as a condition of use.
(b) API Service. Specific conditions will be provided to Client by Talkwalker, as set out in an Order Form.
(c) 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: Lexis Nexis, TV Eyes, and Weibo. This list may be updated from time-to-time without further formality. Client 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 Processor Agreement (collectively, the “Agreement”) 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. Client may not assign, transfer, or otherwise dispose of any of its rights or obligations under this Agreement to a third party without the prior written consent of Talkwalker. Talkwalker may assign or transfer this entire Agreement (including any Order Forms), which includes all rights and obligations, without Client’s consent to an affiliate or to any successor to all or substantially all of its business that concerns this Agreement. This Agreement 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 Agreement shall be construed as creating any relationship of any sort between the Parties other than the one expressly provided by this Agreement.
9.8. Non-Waiver. The failure of a Party to insist on strict adherence to any term of this Agreement shall not be considered a waiver of any right of such Party.
9.9. Language. In the event this Agreement is translated into one or more languages, the English version shall prevail. Any translation of this Agreement 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 Agreement 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 Agreement has no right to enforce any of these terms including under the Contracts (Rights of Third Parties) Act (Cap. 53B).
9.12. Survival. Notwithstanding the termination of this Agreement for any reason, Sections 4, 5, 6, 9, and those by their nature which are meant to survive termination shall continue in full force and effect following such termination.
9.13. Interpretation. As used in this Agreement, “include,” “includes,” and “including” shall mean “including, without limitation.” The captions and headings used in this Agreement are inserted for convenience and ease of reference only.
9.14. Amendments. Talkwalker, at its sole discretion, may amend this Agreement and notify Client of any material changes in accordance with Section 9.14 or by publishing a notice on its website. However, it is Client’s responsibility to review this Agreement regularly and Client’s continued use of the Talkwalker Platform and/or the Talkwalker Services constitutes Client’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 Client: the e-mail address as set forth in the Order Form; if to Talkwalker: firstname.lastname@example.org, with a copy to email@example.com), unless otherwise stated. For contractual purposes, Client: (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 Client 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. Client shall notify Talkwalker immediately in the event of a change in contact details by providing the updated information to: firstname.lastname@example.org.