TERMS AND CONDITIONS FOR THE ACCESS AND USE OF THE TALKWALKER SERVICES AND PLATFORM, AS OF JULY 2, 2018, PLEASE READ BEFORE USE. (Prior to November 15, 2018)
This Agreement is entered into by:
You (hereinafter “Client”, “you”, or a “Party”) and Talkwalker (hereinafter “Talkwalker”, “we”, or “us”, or a “Party”).
Client and Talkwalker are hereinafter together referred to as the “Parties”.
In the event you access the Services through a company that Talkwalker has authorized to market, sell, and grant their clients access to the Talkwalker Services (an “Authorized Reseller”), you are additionally bound by any terms and conditions of that Authorized Reseller and those contained in Section 7. You may contact firstname.lastname@example.org for more information.
1.1. "Order Form" means the document detailing the Services ordered from Talkwalker or through an Authorized Reseller.
1.3. “Service Level Agreement” or “SLA” means the Service Level Agreement made available from time to time by Talkwalker to its customers at: https://www.talkwalker.com/service-level-agreement.
1.4. “Talkwalker” as used herein means either:
(I) Talkwalker, Inc., a Delaware company, with registered office at 205 E. 42nd Street, Floor 19, New York, NY, United States, for users located in the United States, Canada, or their territories and possessions; or
(II) Talkwalker, Sàrl, société à responsabilité limitée, with registered office at 12-16, Avenue Monterey, L-2163 Luxembourg, registered with RCS Luxembourg under number B205483(VAT LU 28470583) for all other users.
1.5. “Talkwalker Platform” means Talkwalker and its licensors’ proprietary internet-based software as a service application and associated technology made available from time-to-time by Talkwalker to its customers at www.talkwalker.com and from which the Services are rendered.
1.6. “Talkwalker Services” or “Services” means the services made available by Talkwalker from the Talkwalker Platform, consisting of certain social media and online media monitoring tools for brand monitoring, allowing customers to analyze, summarize, visualize, and provide links to internet search results as they are then available. Certain additional services can also be included in the scope of the Services subject to specific financial and contractual conditions as identified in Appendix 1 (“Specific Services”).
1.7. “Third-Party Content” means any data, information, or content originating from or belonging to any Third-Party Platform.
1.8. “Third-Party Platform” means a third-party social-media website (such as Twitter, Facebook, etc.) or any online-media (such as blogs, message boards, news and review sites, etc.) from which Talkwalker may retrieve information in connection with the Services as part of the query made on the Talkwalker Platform, and to which Customer may access discretionarily through the provision of the Services.
1.9. “Your Data” means any data, information, or content (such as content in text, image, or other format, graphs, statistics, or calculation reports, etc.) provided or made available by you to Talkwalker in order to conduct a query or analysis.
2. CONDITIONS OF USE OF THE SERVICES
2.1. As of the earlier date of (i) the first log on to the Talkwalker Platform, or (ii) at the execution date of the relevant Order Form, you agree to be bound by and comply with this Agreement, and to bind your authorized users and require their compliance with the terms and conditions of this Agreement.
2.2. The Services are provided for the term defined in the Order Form (“Term”), along with the scope and financial conditions, only to you and your selected authorized users, unless approved by us. You warrant that you are acting in a professional capacity. By granting access to those authorized users, you represent and warrant they are members of your organization and that they will comply with the conditions defined in the Agreement.
2.3. The Services are built under certain conditions detailed in the SLA and further in the Agreement. Your use of the Services constitutes your express acceptance of the conditions defined in the Agreement. You understand and acknowledge that the Services are dependent upon the availability, completeness, and accuracy of data and content, decided on a discretionary basis by Third-Party Platforms or Talkwalker.
2.4. The acceptance of an Order Form engages you to pay the fees detailed in the conditions defined therein.
2.5. The Services include the right for you, to access the Talkwalker Platform and use the Services, as they are defined in the Order Form, during the Term and in accordance with the conditions set out in the Agreement, in order to generate and view analytics and reports for internal business use only. The information, reports, and analytics consulted on the Talkwalker Platform constitute “Deliverables”. You acknowledge the Deliverables may quote or incorporate excerpts of certain material owned by certain Third-Party Platforms, and as made available discretionarily on and by those Third-Party Platforms.
2.6.1. You may not access and use the Services in breach of certain limitations attached to the content accessible through the Talkwalker Services 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, and data protection regulations, including the GDPR. You shall not use the Services for a purpose other than brand monitoring and brand analytics. You shall not sell, resell, re-publish, or distribute the Deliverables and/or Services without Talkwalker’s prior express written consent.
2.6.3. You shall not use the Services as a law enforcement tool or for the tracking of individuals, discrimination of any sort, or disciplinary purposes, etc. Further details are provided in the Basic Conditions of Use and Content Limitations that you represent to have read, understood, and agree to comply with.
2.7. You acknowledge and agree that Talkwalker has the right to monitor, subject to the confidentiality obligations defined in the Agreement, the use made by your authorized users of the Services for the purposes of (i) the performance of the Services including support, maintenance, and account management services; (ii) the fair usage conditions as defined in the Content Limitations; (iii) the compliance with applicable Third-Party Platforms conditions; and (iv) compliance with applicable law and/or regulations, including but not limited to the GDPR and other data protection regulations. If Talkwalker reasonably determines the provision of such data would be offensive, discriminatory, violate agreements with third parties, infringe on intellectual property or other proprietary rights of third parties, or violate applicate law and/or regulations, it may exclude certain data from search results or otherwise make it inaccessible to you, together with the right to suspend or terminate the Service and the Agreement.
2.8. You hereby authorize Talkwalker to use, technically modify, and technically integrate into any other derivative works Your Data, including intellectual property rights, if any, for the sole purpose of providing the Services to you. You further grant Talkwalker a worldwide, perpetual, irrevocable, sublicensable to our affiliates, and royalty-free license to use and incorporate into the Services any correction, improvement request, recommendation, suggestion, or other feedback provided by you.
3. CONFIDENTIALITY – PUBLICITY
3.1. Neither Party may use the other’s Confidential Information, as defined below, or disclose it to any other person for any purpose other than performing their obligations under the Agreement. Confidential Information includes, inter alia, 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 Talkwalker’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.
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 same information lawfully and without a duty of confidentiality; (d) is disclosed by, or 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 the Agreement.
3.3. Unless you have objected in writing, we may in our discretion disclose that you are a client of Talkwalker and you hereby grant Talkwalker a license to use your name and logo on our client list, website, and in sales material, provided that such license may be revoked at any time upon thirty (30) days written notice to Talkwalker. Notwithstanding the foregoing, Your Data shall be and remain Confidential Information.
4.1. We warrant that during the Term we will: (a) provide the Services with reasonable skill and care; (b) maintain all licenses and permissions necessary to perform our 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 Third-Party Platforms. Talkwalker and its licensors and suppliers disclaim all other warranties for the Services, whether express, implied, statutory, or otherwise, including without limitation, 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 you of any Third-Party Platform or other internet website via hyperlink from the Services is subject to the terms of service of such Third-Party Platform(s) or website(s) and at your 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.
5. LIMITATION OF LIABILITY
5.1. TALKWALKER SHALL ONLY BE LIABLE FOR DIRECT AND ACTUAL DAMAGES AND IN NO EVENT SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, OR PUNATIVE DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE CLAIMS AND DAMAGES RESULTING FROM THE LOSS OF GOODWILL, LOSS OF DATA OR LOSS OF PROFITS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR FROM OR IN CONNECTION WITH THE USE OF THE SERVICES, OR IN CONNECTION WITH ANY OTHER SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
5.2. OTHER THAN WITH RESPECT TO GROSS NEGLIGENCE OR WILFULL MISCONDUCT, TALKWALKER'S TOTAL AND AGGREGATE LIABILITY FOR ALL DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF THE NET FEES PAID OR PAYABLE BY CUSTOMER UNDER THE RELEVANT ORDER FORM TO TALKWALKER OVER THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE DATE OF THE (FIRST) EVENT GIVING RISE TO SUCH CLAIM. 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. You expressly acknowledge that under no circumstances shall Talkwalker be liable in the event a Third-Party Platform restricts, either temporarily or permanently, Talkwalker’s access to Third-Party Content in a way that would cause any part of the content provided through the Services to no longer be accessible. You are solely responsible for obtaining, subscribing, installing, maintaining, and operating all adequate software (such as your browser), hardware or other computer equipment or web, necessary for the use of the Services. You acknowledge that the internet is not a totally stable or secure environment. As such, 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 up to the amount set forth in Section 5 shall be your exclusive remedy for any breach by us of this Agreement.
5.5. 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
6.1.1. Talkwalker will defend or settle any third-party claim against you to the extent that such claim alleges our technology used to provide the Services violates an Intellectual Property Right, provided you promptly notify us of the claim in writing, cooperate with us in the defense, and allow us to solely control the defense or settlement of the claim. Talkwalker may not settle a claim unless it contains a release and no admission on your part subject to your proper use of the Services as defined in the Agreement. Talkwalker will pay costs associated with the infringement claim incurred by us in defending you, the settlement amounts negotiated by us, and court awarded damages by final court decision. 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 terminate the Services or a portion thereof. In case of termination of the Service in its entirety or a portion thereof, Talkwalker will refund you any remaining prorated portion of prepaid fees.
6.1.2. Talkwalker has no obligation for any claim to the extent of: (i) your use of information you provided to the Services; (ii) your use of technology or aspects not provided by us; (iii) your use of Third-Party Platforms, data, and/or content to which the Services provide access in violation of the conditions of this Agreement; (iv) a combination of the Services with other technology or aspects that you use or decide to add to the Services where the infringement would not occur but for the combination; (v) and/or your non-compliance with any term of the Agreement, and/or your violation of the applicable laws or regulations. In the event Talkwalker receives any claim from a third party, Talkwalker reserves the right to discontinue your use of the Services, block access to the Services and/or make inaccessible or delete all or part of the data on our systems that you entered into the Services or that have been added to our systems as a result of your use of the Services. SECTION 6.1 CONTAINS YOUR EXCLUSIVE REMEDIES AND OUR SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
6.2. Your Indemnity Responsibility. You will defend Talkwalker against any third-party claim arising out of any (i) your use of the Services, Third-Party Content, and/or Third-Party Platforms to which the Services provide access in breach of the Agreement; ii) and/or your non-compliance with any term of this Agreement, non-compliance with the Content Limitations, and/or in violation of any applicable laws or regulations, including with the GDPR, where applicable. You will pay costs incurred by you in defending Talkwalker, settlement amounts negotiated by you, and court awarded damages by final court decision.
7. AUTHORIZED RESELLER.
7.1. In the event you access the Services through an Authorized Reseller, Section 6.1, Section 9.1, and Section 9.2 shall be inapplicable to you. Any payment of fees and the conditions thereof shall be determined exclusively by the Authorized Reseller.
8. DATA PROTECTION
9.1. Either Party may terminate the Agreement in the event of any material breach by the other Party of any of the terms and conditions of the Agreement, following notice from the terminating Party indicating the nature of such breach and if the breach is not cured within ten (10) business days from receiving such notice, unless extraordinary circumstances necessitate a shorter period as indicated in the notice (“Cure Period”). Such termination does not relieve you from paying any remaining unpaid invoices for the period prior to the effective date of termination. During the Cure Period, Talkwalker reserves the right to suspend your access to the Services.
9.2. We may update this Agreement from time to time on our website. These updates shall become effective (i) at the time of renewal (in such a case the Order Form shall state the then applicable version of this Agreement) or (ii) subject to a thirty (30) day prior notice by electronic mail. In the latter instance, you shall be deemed to have agreed in full to any modification made to this Agreement within thirty (30) days following Talkwalker’s notice.
9.3. Talkwalker (or as the case may be, a Party) may suspend access and/or terminate an Order Form and/or this Agreement in its entirety under the following circumstances: (i) in the event of a change in the business, legal, or regulatory environment applicable to the Services in a way that Talkwalker assesses jeopardizes the economic balance of Talkwalker’s business model, subject to no less than three (3) month prior notice to you; (ii) in the event where a third-party data/content provider suspends or terminates providing Talkwalker with data and/or content thereby depriving the Services of their essence, either Party may terminate the Agreement, subject to a three (3) month prior notice; or (iii) in the event of a judgment, administrative or court order, regulation, or similar to stop the provision of the Services, Talkwalker will notify you immediately of the effective date at which time the Services will be stopped. In the event of the foregoing, Talkwalker shall, as a final remedy, reimburse any prepaid fees made prorata temporis corresponding to the portion of the Services yet to be received.
10.1. 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.
10.1.1. If you are resident in the United States, Canada, or their territories, 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.
10.1.2. If you are not resident in the United States, Canada, or their territories, 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.
10.2. Force Majeure. Neither Party shall be held liable in the event of a breach caused by force majeure event, such as natural disasters, wars, government actions, failure of third-party telecommunications or other services, general or local unavailability of telecommunications or the internet network, fire, flood, explosion, armed hostilities, acts of terrorism, strikes and blockade, and as defined by Applicable Law in Section 10.1.
10.3. Entire Agreement. These Terms of Service, along with the Order Form, the Content Limitations, the Basic Conditions of Use, the Service Level Agreement, and the Data Processor Agreement (collectively “Agreement”) constitutes 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. Talkwalker may assign, transfer, or otherwise dispose of any of its rights or obligations under the Agreement to a third party. 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. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted assigns and successors. The failure of a Party to insist on strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of any right of such Party. 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.
10.4. Notwithstanding the termination of this Agreement for any reason, Sections 4, 5, 6, 10.1, 10.3, and those by their nature are meant to survive termination shall continue in full force and effect following such termination. The captions and headings in this Agreement are inserted solely for convenience and ease of reference only.
10.5. All notices, demands, and requests will be deemed given when sent by e-mail (if to Talkwalker: email@example.com with a copy to firstname.lastname@example.org) to the Parties’ addresses as set out in this Agreement, unless otherwise stated. For contractual purposes, you (i) consent to receive communications from Talkwalker in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Talkwalker provides to you electronically, including but not limited to in pdf form, satisfy any legal requirement that such communications would otherwise satisfy if they were to be in writing.
10.6. You undertake to notify Talkwalker immediately of any change in its contact details by providing its updated contact details at: contact@Talkwalker.com.
Appendix A - Additional Terms of Service Covering Specific Services
The following additional terms and conditions shall find either (1) automatic application or (2) shall become applicable subject to an addendum to this Agreement or by a Specific Order Form.
1. AUTOMATICALLY APPLICABLE ADDITIONAL TERMS AND CONDITIONS
1.1 COMMAND CENTER. 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.
1.1.3 Specific Conditions to the Command Center. Once ordered, the following conditions find full application:
(i) The use of the Command Center Service is strictly limited to the display inside a private building i.e. not open-to-the-public to the exclusion of any display on a “Public Screen” as defined below.
(ii) It is expressly agreed that under no circumstances shall you use the Command Center Service on a Public Screen.
(iii) A “Public Screen” means a monitor, screen or other video output device placed at a live event, public venue or in another open-to-the public setting on which the Talkwalker Service is displayed.
(iv) For the sake of clarity and for illustrative purposes, following displays are not allowed: a display in a visitor’s lobby, in an airport and/or a fair show etc. is not allowed.
(v) In case you wish to display the Talkwalker Services on Public Screens, you are to inform Talkwalker of such intent and Talkwalker will liaise with Twitter and/or other Third-Party Platforms in order to seek such use to be allowed by the Third-Party Platforms, and specific terms of service may be provided to you.
1.2 API SERVICE. Specific conditions will be provided to you by Talkwalker upon demand.
2. ADDITIONAL SERVICES ACCESSED THROUGH THE TALKWALKER PLATFORM BUT DELIVERED BY THIRD-PARTY PLATFORMS UNDER SPECIFIC CONDITIONS
2.1 The Talkwalker Platform offers additional services that are not part of the Talkwalker Services by default. These additional services requested require either a dedicated Order Form or an amendment to an existing Order Form, such as:
(i) Lexis Nexis Content
(ii) TV Eyes Content
This list may be updated from time to time, without further formality. You understand and agree these additional services are being rendered by Third-Party Platforms and as such specific conditions are attached to their access and use and Talkwalker declines any responsibility for those services not under its control.