Terms of Service
Last revised as of October 17th 2016.
1.1 Capitalized terms used in this document are defined in Section 2 or where they are first used.
1.2 These Terms of Service apply to residents of, and Entities located in, the United States and Canada who are using the Services. If you are outside the United States or Canada, please visit www.talkwalker.com/en/terms-of-service-rest-of-world for the Terms of Service that apply to you. These Terms of Service are an agreement (this “Agreement”) between you, as an individual or as an Entity, and us, Talkwalker Inc. (“Talkwalker”), a Delaware corporation with offices at 205 E. 42nd St., 14th Fl., New York, NY 10017, regarding certain Services. Any Order Form or any supplemental agreement between you and us regarding your use of the Services shall become an integral part of this Agreement, and when we refer to this Agreement this includes any Order Form and any supplemental agreement.
1.3 Talkwalker may make available certain Services to you. By accessing the Services or by otherwise expressing your consent to this Agreement, including without limitation an Order Form, you agree to be bound by this Agreement. Your use of and access to the Services is permitted solely on the condition that you accept this Agreement.
1.4 You acknowledge that certain Services may be subject to specific terms of service or other supplemental agreements to be entered into by you and us to use these Services. You accept that such specific terms of service or any supplemental agreement, once accepted by you, will become part of this Agreement.
Unless defined otherwise in an Order Form, the following terms have the following meanings in this Agreement:
“Access ID” means any user name (including an email address), and a password selected by you to give you access to your Account and the Services.
“Account” means the customized access to the Services granted to you by Talkwalker to use the Services. "
Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Business Counterpart” means any Person with whom you transact business and who is authorized by Talkwalker to use the Services pursuant to Section 8.3.
“Command Center Service”: means Talkwalker Service which consists in having automated refresh of data on a dashboard displayed on a full screen (such as a computer or TV set) on your premises solely.
“Entity” means any of the following: a company; association or organization (incorporated or not); educational institution; trust; or an agency, instrumentality or department of a government, or an intergovernmental organization or agency; in each case irrespective of the law under which this Entity was formed.
“Fee” means the payments you owe Talkwalker for your access to and use of the Service, as stated on the Order Form or as may be requested by Talkwalker from time to time in accordance with the terms of this Agreement.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks and service marks (whether registered or unregistered and including any goodwill acquired in such trademarks and service marks), trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Know” and “knowingly” means that a person has actual knowledge of a fact, or that knowledge is imputable to a Person because the Person should have had knowledge of the fact due to the circumstances.
“Order Form” means a form, in electronic or paper format, detailing the Services ordered by you, the Fees and certain other supplemental terms and conditions.
"Person" means an individual or an Entity.
“Query” means a search string that you use to define what words and phrases must be present on a webpage for a Service to include that webpage in a Query Result.
“Query Results” means the list of results (e.g., website links, graphs, statistics, or other data) that you are given access to through the Services based on the parameters of your Query.
“Services” means any of the following, each as described in greater detail in the User Manual: the Talkwalker Service, the Talkwalker Alerts Service, the Talkwalker API Service, the Talkwalker Free Search Service, and any other Service that Talkwalker may offer in the future pursuant to this Agreement.
“Talkwalker Alerts Service” means a publicly-accessible alert system, as made available from time to time on the Internet (at www.talkwalker.com/en/alerts), that monitors various online and social-media sources such as blogs, news, forums and social networks.
“Talkwalker API Service” means an application programming interface, as made available from time to time on the Internet, to facilitate the collection, access to and visualization of data.
“Talkwalker Free Search Service” means a software application and related services, as made available from time to time on the Internet, consisting of a social-media and online-media search tool, which searches, analyzes and provides links to a limited set of Query Results.
“Talkwalker Service” means a software application and related services, as made available from time to time on the Internet, consisting of social-media and online-media-monitoring tools that analyze, compile, summarize, visualize and provide links to Query Results.
“Tax” means any amount that a person is required to pay to a government under applicable law in connection with the use of the Services, such as without limitation, foreign, national, state or local sales, use, withholding or other taxes, customs duties or similar tariffs and fees, but excluding income tax.
“Term” has the meaning set forth in Section 12.1. “Third-Party Content” means any data originating from or belonging to any Person other than you or Talkwalker.
“Third-Party Platform” means any third-party social-media website (such as Twitter, Facebook, etc.) which you may access through your Account and from which Talkwalker may retrieve information for you and on your behalf in connection with providing the Services.
“Trial Services” means access, limited with respect to functionality or duration, to all or a part of the Services.
“User Data” means any data (such as content in text, image or other format, as well as graphs, statistics, or calculation reports, etc.) provided or made available by you to Talkwalker in connection with the provision of the Services.
“User Manual” means the user manual, as made available from time to time on our website at www.talkwalker.com/en/academy/user-manual.
3. TRIAL SERVICES
3.1. At your request, we may from time to time in our sole discretion make available to you certain Trial Services, subject to the terms and conditions of this Agreement. Trial Services may be made available free of charge.
3.2. Trial Services may require you create an Account.
3.3. You acknowledge that your access to and use of the Trial Services are offered pursuant to Section 13 and Section 14 below, and without any warranty or technical support of any sort.
3.4. We reserve the right at any time in our discretion to change your access to and use of the Trial Services, without prior notice and with immediate effect, including by increasing or limiting access to or use of some or all of the Services or by changing or discontinuing Trial Services.
3.5. We reserve the right at any time in our discretion to revise the terms and conditions applicable to the Trial Services, and such terms and conditions shall be effective when uploaded to our webpage, and your subsequent access to or use of the Trial Services shall constitute your acceptance of such uploaded terms and conditions.
3.6. We reserve the right at any time in our discretion to request that you pay fees for your continued access to or use of some or all of the Trial Services, provided that if we advertised any Trial Service for a specific trial period on our website on the date when you started using such Trial Service, then any fees shall only be due after the trial period has lapsed.
3.7. Your use of the Trial Services will terminate automatically: (i) at the end of any trial period; (ii) upon your non-payment when due of any fees charged pursuant to Section3.6: (iii) when you delete your Account; (iv) or on the start date of any Services you ordered pursuant to the Order Form, whichever is earliest. Upon termination of the Trial Services, unless you have ordered and paid for Services pursuant to an Order Form, we may in our sole discretion block your access to and use of the Services and delete your Account. In this case, any data entered by you into the Trial Service or made available by Talkwalker in connection with your use of the Trial Service will be permanently lost without any further obligation by Talkwalker.
3.8. You shall not sell, resell, re-purpose or distribute in any way any Trial Services without our prior written approval.
4. ACCESS TO AND USE OF THE SERVICES
4.1. If we decide in our discretion to make the Services available to you, we will at your request provide you with an Order Form and, if applicable, supplemental agreements and terms of service for certain Services. We may request you to declare your consent to the Order Form, relevant supplemental agreement(s), and/or specific terms of service in electronic or written form.
4.2. Upon and subject to your consent to the conditions of this Agreement, including any Order Form and applicable supplemental agreements and specific terms of service for certain Services, and upon your establishing an Account in accordance with Section 19, we hereby grant you the non-exclusive, limited right during the Term to access and use the Services you subscribe to in the relevant Order Form. Such right is non-assignable except as specifically provided in this Agreement.
4.3. We may change the Services from time to time in our discretion, with or without notice, and with or without releasing new versions of the Services, including without limitation for the purposes of applying patches and bug fixes. You agree that at any time you have the right to use the Services solely in the form as they are then made available by us.
4.4. You acknowledge that we have no delivery obligation and will not ship copies of software to you as part of the Services. The transactions contemplated by this Agreement do not include a sale of goods (as these terms are defined in the Uniform Commercial Code). You agree that under this Agreement you do not acquire any license or any right to use the Service(s) in excess of the scope and/or duration as described in this Agreement. Upon expiration or termination of this Agreement or of any Services provided hereunder, your right to access or use the relevant Services shall terminate.
4.5. You acknowledge that the Services are provided on a “fair usage” basis. The Services may be subject to limitations, including technical limitations, if your use exceeds fair usage, as determined by us, for example if you use an unusually large number of search terms within a given Query, monitored content, request for newsletters, alert, etc., or if you otherwise do not comply with reasonable industry standards while using the Services.
4.6. Conditions specific to the Command Center Service
Notwithstanding the above, the use of the Command Center Service is strictly limited to the display in dedicated rooms on Licensee’s premises, to the exclusion of any display on a “Public Screen” (for example in a visitor’s lobby).
It is expressly agreed that under no circumstances shall the Licensee use the Command Center Service on a Public Screen. 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. For the sake of clarity a display in the lobby of your premises is not allowed.
In case the Licensee wishes to display the Talkwalker Services on public screens, Licensee is 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 the Licensee.
5. THIRD-PARTY PLATFORMS
5.1. Using the Services may allow you to access accounts you may have on Third-Party Platforms.
5.3. You acknowledge and agree that you are solely responsible for (a) any content you provide to Third-Party Platforms and for any content you access on any Third-Party Platforms, and (b) any communications or interactions between you and any Person through Third-Party Platforms.
5.4. You agree that while accessing such Third-Party Platforms via the Services, you shall comply at all times with any applicable laws and with any terms and conditions governing your use of such Third-Party Platforms.
5.5. Third-Party Platfoms Limitations
The tool is not intended to be used as a law enforcement tool. In this sense, Licensee cannot use the Talkwalker tool to allow or assist any government entity, law enforcement, or other organizations to conduct surveillance. Nor can Licensee display, distribute or otherwise make available content to any person or entity that the Licensee may reasonably believe will use such data to violate the Universal Declaration of Human Rights.
Law enforcement personnel using the system need to reach an individual separate agreement with Talkwalker and abide by Third Party Platforms terms. In particular, Twitter’s Guidelines for Law Enforcement located at https://t.co/le.
Content from Third-Party Platforms cannot be publicly display without reaching an specific agreement with Talkwalker and always respecting any Third-Party Platform right.
6. PROPRIETARY RIGHTS
6.1. Subject to the limited rights granted to you by this Agreement, you acknowledge and agree that Talkwalker and its Affiliates hold and reserve all rights, including Intellectual Property Rights, to the Services and you agree not to challenge or contest our and our Affiliates’ rights to the Services or attempt to assert any Intellectual Property Rights or other proprietary rights with regard to the Services.
6.2. You maintain ownership of any Intellectual Property Rights you may have to the data you provide to us, including by accessing such data as a result of your use of the Services, but you hereby grant us a non-exclusive, worldwide, royalty-free, sub-licensable license to use, modify and integrate into any derivative works such data for the sole and exclusive purpose of providing the Services.
6.3. You represent and warrant that you have all the necessary Intellectual Property Rights and any other necessary rights to the data you provide to us via the Services, including data you access as a result of your use of the Services, and to grant the license mentioned in Section 6.2, for example by owning the necessary Intellectual Property Rights to such data or by having duly obtained sufficient and necessary licenses or usage rights from the legal owner of the Intellectual Property Rights to such data, in each case permitting you to license or otherwise lawfully make available to Talkwalker such data for the purpose of providing the Services.
6.4. You undertake not to provide to us, or access or use as a result of your use of the Service, data in any manner that infringes on the rights, including but not limited to Intellectual Property Rights, of any Person.
6.5. Except as expressly specified otherwise in this Agreement, you agree and acknowledge that Talkwalker does not own or have any right of any nature or any kind of control regarding the data you provide to us via the Services or the Third-Party Content you access as a result of your use of the Services, and that Talkwalker shall have no obligation to conduct any verification, modification, filtering or deletion of any nature or to undertake any action that may have an impact on such data or the Third-Party Content. You access and use any data, including Third-Party Content, at your own risk.
8. YOUR OBLIGATIONS
8.1. You are responsible for obtaining, installing and maintaining in good working order your own Internet access and all necessary network and telecommunications equipment, hardware, software (such as a suitable Internet browser), devices and other materials and equipment necessary, as specified in the User Manual, to access and use the Services.
8.2. You shall use the Services, and all data you receive through proper use of the Services, only as expressly permitted by this Agreement, in compliance with the User Manual on the basis of fair usage, and solely for your legitimate and lawful business purposes.
8.3. If and as permitted by the Order Form or a separate agreement between you and Talkwalker, you may allow one or more of your Business Counterparts to use the Services for their own business purposes; provided that you shall: (a) require any Business Counterpart to comply with the terms of this Agreement in connection with their use of the Services as if such Business Counterpart were itself a party to this Agreement; and (b) indemnify the Talkwalker Indemnitees with respect to the Business Counterpart’s use of the Services pursuant to Section 15. Any use of the Services by a Business Counterpart shall be deemed to constitute part of your use under this Agreement, and any breach by any Business Counterpart will be deemed to be a breach of this Agreement by you. We reserve the right to require that you obtain and provide to us a written agreement of compliance with any Business Counterpart pursuant to clause (a) of this Section 8.3.
8.4. You are responsible for taking all appropriate measures to prevent harmful agents or components from entering your or our systems or the Services, and to ensure the security of your access to and connection with the Services.
8.5. You are responsible for the privacy and security of data you provide to us that is subject to your confidentiality or privacy obligations.
8.6. To the extent that Talkwalker may be required, as part of the Services, to process any personal data on your behalf, you are responsible for obtaining all approvals and consents to enable such processing.
8.7. You shall comply with all your other obligations stated elsewhere in this Agreement.
9. PROHIBITED ACTS 9.1. You shall not use, and not knowingly permit any Person to use, any data you enter into to the Services or access as a result of your use of the Services, or Third-Party Platforms, or Query Results
(i) in violation of any applicable local, state, federal or foreign laws, statutes, ordinances, rules or regulations or any judicial or administrative orders,
(ii) in any way that infringes on, misappropriates or violates any Intellectual Property Rights or publicity, privacy or other right of Talkwalker or its Affiliates or any other Person;
(iii) in any way that Talkwalker reasonably determines is unacceptable, immoral or offensive, such as spamming, hacking, phishing, harassment, etc.;
(iv) contrary to the terms and conditions of this Agreement, the User Manual, or of any terms of service of any Person applicable to you as a result of your use of Third-Party Content or of Third-Party Platforms;
(v) for the business needs of another Person, except as expressly permitted by Talkwalker.
9.2. You shall not give access to your Account or to any Query Results to any Person except your authorized personnel, and Business Counterparts if and as specifically permitted by Talkwalker.
9.3. You shall not, and shall not knowingly permit any Person to, in whole or in part:
(i) alter, adapt, merge, modify, port, translate, decompile, disassemble, create derivative works from, or reverse engineer any of the Services, or otherwise attempt to derive the source code or engage in any other activities to obtain underlying information that is not visible to a user in connection with normal use of the Services;
(ii) engage in any activity that: (a) interferes or attempts to interfere with the proper functioning, or disrupts, diminishes the quality, of the Services; (b) circumvents, disables, or otherwise interferes with security-related features of the Services or features that enforce limitations on use of the Service; or (c) imposes or may impose, in Talkwalker’s reasonable determination, an unreasonable or disproportionately large load on the Service or Talkwalker’s infrastructure.
(iii) transfer, license, rent, lease, distribute, sell, or grant any rights to the Services to anyone, except as expressly permitted by Talkwalker;
(iv) publicize or distribute any registration code algorithms, information or registration codes used by the Services or knowingly take any action that would cause any element of the Services to be placed in the public domain;
(v) gain or attempt to gain unauthorized access to the Services; (vi) remove any proprietary notices or marks from the Services;
(vii) engage in any other activity reasonably determined by Talkwalker to be in conflict with the intent of this Agreement.
9.4. We reserve the right to notify any competent authority of any action or conduct by you while using the Services or User Data or Third-Party Content that we deem to be unlawful or infringing, without any prior notification to you.
10.1. The Fees for the Services are stated in the Order Form. You agree to pay these Fees pursuant to the payment terms stated in Section 11.
10.2. We reserve the right to adjust the Fees starting with the next Renewal Term. We agree to notify you timely of a Fee increase, and you then have the right to terminate this Agreement by written notice at least thirty (30) days prior to the expiration of the then current Term. If you fail to timely terminate the Agreement, you shall be deemed to have agreed to the increased Fee.
10.3. You may at any time during the Term subscribe to additional Services via an additional Order Form. In this event, we have the right to deduct the additional amounts due based on your subscription to additional Services from any prior advance payments for Services.
11. PAYMENT TERMS
11.1. Upon your subscription to the Services using an Order Form, we will send you one or more periodic invoices (as may be agreed in the Order Form) listing the Services you subscribed to and any applicable Fee plus any Tax we are required to collect. You agree to pay us the invoiced amounts pursuant to the conditions specified in the invoice(s), without deducting or offsetting any amounts from your payments.
11.2. We may in our sole discretion at any time offer the option, or request, that you pay our invoices by specific payment methods, such as wire transfer, ACH debit, credit card or PayPal®. In the event of payment by credit card, you shall provide us with valid and up-to-date credit card information. In the event of payment via ACH debit, you agree to execute, or otherwise provide your consent to in a legally binding way, a debit authorization form and to abide by the rules and regulations governing the ACH network. In the event of payment via other service providers you agree to abide by their procedures and terms and conditions. In any case you authorize us and the financial institution or service provider, as the case may be, to debit for our benefit your relevant account and collect and remit to us the amounts due, at the frequency and pursuant to the conditions determined in the Order Form. Subject to different terms agreed to in an Order Form, we may change to payment methods offered or required any time and notify you of the new payment methods offered or required, and you agree to take the necessary steps to ensure continued timely payment of our invoices.
11.3. Any check you send for payment of amounts due to us that is returned to us for insufficient funds will result in a $100 (one hundred dollar) service fee due to us, which will be added to your account.
11.4. We reserve the right to add a financing charge on past due accounts, at a rate of 1.0% per month, calculated on a daily basis.
11.5. If your payment of any invoice is overdue, we will send you a notice of past due account. Any such notice will incur a $50 (fifty dollar) late fee, which will be added to your account.
11.6. If your payment of any invoice is overdue, we may in our discretion, with or without the prior sending of a notice of past due account, suspend or limit your access to and use of the Services without any credit to you until we have received payment in full.
11.7. If you fail for more than 14 (fourteen) days from issuance of a notice of past due account] to make payment of any past due accounts, we reserve the right to terminate this Agreement and block your access to and use of any and all Services. A termination shall not affect the application of additional late payment fees and your obligation to pay all outstanding invoices.
11.8. Talkwalker may in its discretion outsource the invoicing and/or the collection of amounts due to a third party or assign some or all of its rights to payment to a third party.
11.9. You shall pay all costs incurred by us in collecting any amounts due under this Agreement, including without limitation reasonable attorneys’ fees and costs.
11.10. Any dispute relating to an invoice must be raised in writing within 30 calendar days of the date of the invoice; otherwise you shall be deemed to have accepted our invoices as final.
11.11. If you subscribe to the Talkwalker API Service, you agree to abide by the specific payment terms for such Service as will be made available to you.
12. TERM AND TERMINATION
12.1. This Agreement shall be in force from the time when you expressed your consent pursuant to Section 1.3 until the expiration of the Term or earlier termination of this Agreement. If you consented to an Order Form, the terms stated in the Order Form shall also be in force from the date of your consent through the expiration date stated in the Order Form (the “Initial Term”) or the earlier termination of this Agreement. After expiration of the Initial Term and unless otherwise specified in the Order Form, this Agreement shall be renewed automatically for successive periods equal to the Initial Term (each a “Renewal Term” and, collectively with the Initial Term, the “Term”) unless previously terminated in accordance with the terms below.
12.2. You and we have the right to terminate this Agreement by written notice not later than thirty (30) days before the expiration of the then current Term, unless specified otherwise in the Order Form.
12.3. You have the right to terminate this Agreement pursuant to Section 20.10.
12.4. We have the right to terminate this Agreement at any time, with or without prior notice, effective immediately: (a) in the event of your continued payment default as described in Section 11.7; (b) if you breach any other provision of this Agreement; (c) if we receive a Claim pursuant to Section 15.2; or (d) if we are so ordered by a court or government agency, or if we learn that a regulation or law prevents us from lawfully providing the Services to you. Before terminating the Agreement pursuant to clause (b) of this Section 12.4, if we determine in our discretion that your breach of this Agreement is capable of being cured, we may send you a notice describing the breach and you shall have three (3) days, or such longer time as may be stated in our notice (in each case, the “Cure Period”) to notify us of how you have cured the breach. If at the end of the Cure Period we are not satisfied in our sole determination that you have cured the breach, we may terminate your use of the Services and close your Account, with or without further notice. During the Cure Period we have the right to suspend your access to the Services without any credit to you.
12.5. We have the right to terminate this Agreement immediately upon written notice in the event: (a) that you make an assignment for the benefit of creditors; (b) a trustee, receiver, or similar person is appointed for you or for a substantial part of your property, with or without your consent; (c) any bankruptcy, insolvency, reorganization, or liquidation proceedings is instituted against you, which proceedings are not dismissed within 60 days of filing; (d) that you fail generally to pay your debts or contractual monetary obligations as they become due; or (e) that you cease, or threaten to cease, to do business. In addition, if you are a partnership and any event described in this Section 12.5 occurs as against any partner of that partnership, we have the right to immediately terminate this Agreement upon written notice.
12.6. Upon termination of this Agreement your right to use the Services terminates automatically, and we have the right to immediately disable your access to and use of the Services and to delete your Account without additional notice to you. We shall no longer be obligated to give you access to, maintain, store or backup data you entered or retrieved on our systems. All of your payment obligations shall become immediately due and payable and you shall remain liable to Talkwalker for all amounts due under this Agreement and all the costs Talkwalker incurs to collect any amounts due, including collection agency fees, reasonable attorneys’ fees and arbitration or court costs (collectively, “Collection Costs”). Any termination shall not release a Party from liability for a breach by that Party of its obligations under this Agreement prior to or in connection with such termination.
13. REPRESENTATIONS AND WARRANTIES
13.1. Each Party represents and warrants that (i) it has the legal capacity and authority to enter into this Agreement, to perform the obligations and to consummate the transactions contemplated under this Agreement; (ii) this Agreement is valid and binding upon and enforceable against it; (iii) its execution and performance of this Agreement will not result in the violation of any provision of any other agreement or applicable law or any judgment or decree binding upon it; and (iv) it is not the subject of any pending or, to the best of its knowledge, threatened claim, action, judgment, order, or investigation that could adversely affect its ability to perform its obligations under this Agreement or the business reputation of the other party.
13.2. NO WARRANTY. To the fullest extent permitted by law, Talkwalker provides the Services “AS IS” and without any warranty of any kind. Except for the warranties stated in Section 13.1, Talkwalker and its suppliers disclaim all other warranties for the Services, whether written or oral, express, implied, or statutory, including without limitation, any warranty of fitness for a particular purpose or merchantability, and non-infringement. Specifically, Talkwalker and its suppliers do not warrant against human or machine errors, omissions, delays, interruptions or losses, including loss of data, or any harm that may be caused by the transmission of a computer virus, worm or other code that manifests contaminating or destructive properties. Talkwalker and its suppliers do not warrant that the Services will meet your requirements or that the operation, access to, use of or functions of the Services will be uninterrupted or error-free. Talkwalker and its suppliers do not warrant or make any representation regarding the use or the results of the use of the Services or any information, text, graphics, links or other items that may be may be made available via any of the Services with respect to their performance, accuracy, reliability, completeness, security or otherwise. Talkwalker and its suppliers do not warrant that your access to any data via, or as a result of your use of, the Services or your use of any data will not infringe on Intellectual Property Rights of any Person. You assume the risk arising out of your access to and use of the Services. Any information you receive via, or as a result of your use of, the Services is not professional advice of any sort.
14. LIMITATION OF LIABILITY
14.1. In no event will Talkwalker or any of its Affiliates be liable
(a) to you or any Business Counterpart or other Person with respect to claims arising out of or in connection with: any use of the Services or any data entered into, obtained from, or accessed as a result of use of the Services, including without limitation errors or omissions contained therein (whether or not such use or data contains Third-Party Content or User Data); decisions made based on the use of the Services or any data entered into, obtained from, or accessed as a result of the use of the Services; libel; infringement of Intellectual Property Rights, right to publicity or privacy; loss of privacy; moral rights; disclosure of confidential information; breach of security; workflow disturbances; or access to Internet connectivity problems;
(b) for any consequential, special, incidental, punitive, or indirect or other damages (including without limitation damages for loss of income, profits or goodwill; business interruption; corruption or loss of data; and the like), however caused and based on any theory of liability, arising out of or in connection with this Agreement or the use or inability to use the Services or resulting from the use of or reliance on any data obtained via the use of the Services, even if Talkwalker or any of its Affiliates has been advised of the possibility of such damages; or
(c) to any Person for an aggregate amount greater than the amount in Fees you paid or would have paid pursuant to this Agreement during the three (3) months preceding the date on which the underlying claim accrued.
14.2. The damages up to the amount set forth in clause (c) of Section 14.1 shall be your exclusive remedy for any breach by us of this Agreement.
15.1. You shall defend, indemnify and hold harmless Talkwalker, its officers, directors, employees, representatives, agents, contractors, Affiliates and licensors (collectively, “Talkwalker Indemnitees”) from any and all claims, actions, losses, damages, demands, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses (“Claims”), whether a suit or other proceeding is initiated or not, which may arise from: (a) this Agreement; (b) your (or your Business Counterpart’s) use, operation or misuse of the Services or any component thereof; (c) any error, omission, or negligent or intentional act by you (or your Business Counterpart) relating to this Agreement; (d) your (including your Business Counterpart’s) breach or alleged breach of this Agreement; or (e) your (or your Business Counterpart’s) infringement of any Intellectual Property Rights of any Person in any data you enter into, or access as a result of your use of, the Services, except where a Claim arises from our use of such data separate from your use of the Services (by way of example and without limitation of the foregoing: our use, modification and integration into any other derivative works of such data for any purpose other than providing the Services).
15.2. In the event we receive any Claim from a third party, we reserve the right to discontinue your use of the Services, block your access to your Account and/or make inaccessible or delete all or part of the data on our systems that you have entered into the Services or your Account or that have been added to our systems as a result of your use of the Services.
16.1. The following shall be considered “Confidential Information”: The content of any Order Form and/or other supplemental agreement between you and us, including without limitation the financial terms of this Agreement; the existence of any business negotiations, discussions, or consultations in progress between the Parties; any information that is marked as “confidential” or reasonably should be understood to be confidential or proprietary to the disclosing Party; and any information and data that either Party has received or will receive from the other Party concerning matters relating to each Party’s respective business including, without limitation, (a) any technical and non-technical information, including Intellectual Property Rights, techniques, drawings, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services; (b) information concerning research, experimental work, specifications, engineering, financial information, customer/client lists, sales, merchandising, and marketing plans and data; and (c) information regarding customers/clients or customer/client prospects of a Party and/or a Party’s business plans or goals, strategy or targets, are proprietary and confidential information of the disclosing Party.
16.2. 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 this Agreement.
16.3. During the term of this Agreement and at all times thereafter, neither Party will (a) use Confidential Information of the other Party except to fulfill obligations under this Agreement or (b) disclose Confidential Information of the other Party except: (i) to employees, agents, and advisors who have a need to know in order to fulfill their responsibilities in connection with this Agreement and are subject to obligations of confidentiality no less restrictive than those in this Agreement or (ii) if obligated to disclose by law or regulation, subpoena or court order. Each Party will take reasonable measures to protect the confidentiality of Confidential Information disclosed to it by the other Party, including, at a minimum, those measures that it takes to protect its own Confidential Information of a similar nature but in no event less than a reasonable measure of care. If a Party becomes legally compelled to disclose any Confidential Information, it shall promptly notify the other Party in writing and assist the other Party to seek a protective order or other appropriate remedy before making disclosure. Whether or not a protective order or other remedy is obtained, the Party compelled to disclose shall furnish only those portions of Confidential Information which it is legally required to disclose as advised by legal counsel and shall exercise reasonable efforts to obtain reliable assurances that Confidential Information will be treated confidentially.
16.4. Upon request, and no later than termination of this Agreement, each Party will deliver to the other, or certify destruction of, any and all documents and materials constituting Confidential Information of the other Party.
Subject to our confidentiality obligations under Section 16, we may at in our discretion issue a public statement or communication or otherwise disclose that you are a client of Talkwalker. Unless you have objected in writing, you hereby grant us a license to use your name, logo and trademarks for public relations activities, including without limitation, on our client list and website.
18. FORCE MAJEURE
We shall not be liable for any failure to perform or delay in the performance of our obligations under this Agreement due to any cause or event not reasonably within our control, including but not limited to acts of God, natural disasters, war, incidents of terrorism, labor disputes, failure of equipment, carriers, utilities or third parties, compliance with governmental authority, strikes or civil unrest.
19. ACCOUNT AND SECURITY
19.1. As a condition to your initial and continued access to and use of the Services, you will be required to register and establish an Account on our website. You represent and warrant that the information you provided in connection with the registration process is current, true, and complete and accurate, and you shall notify us of any changes to such information so that such information remains current, true, and complete and accurate.
19.2. If any information you provide or provided is untrue, inaccurate, outdated or incomplete, or if we have reasonable reasons to assume that any information provided is untrue, inaccurate, not current or incomplete, we have the right to temporarily suspend your Account and access to the Services without notice or terminate this Agreement with immediate effect and, in our discretion, permanently delete your Account and prohibit you from using the Services.
19.3. You shall use only the Access IDs we make available to you to access and use the Services. You shall keep, and cause your personnel or Business Counterparts (as the case may be) to keep, any Access ID safe and confidential. You are responsible for any and all use of the Services using any Access ID, including payment of all Fees related to such use. You shall promptly notify Talkwalker if know that the security of any Access ID has been compromised.
20.1. This Agreement, together with any Order Form and any other documents incorporated by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. To the fullest extent permitted by law, no term or condition implied by law, trade, custom, practice or course of dealing or stated in any solicitation, order, or other document shall become part of this Agreement or be binding on us unless expressly agreed by us in writing. In the event of any inconsistency between this Agreement and any Order Form the Order Form shall control.
20.2. This Agreement shall be governed by, interpreted, construed and enforced in accordance with, the laws of the State of New York, without regard to choice of law principles thereof.
20.3. Any controversy or claim arising out of or relating to this Agreement shall be adjudicated exclusively in the state or federal courts sitting in the County of New York, State of New York, and the Parties waive any objections to the venue of such courts.
20.4. Each Party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 20.4.
20.5. 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.
20.6. We have the right to assign, transfer or otherwise dispose of any of our rights or obligations under this Agreement to a third party without your consent. You shall not, without our prior written consent, assign your rights or delegate your duties hereunder to any party and any attempt to do so shall be void ab initio.
20.7. Each Party shall act as an independent contractor under this Agreement. This Agreement does not create any actual or apparent agency, partnership, franchise, joint venture, or common undertaking, co-ownership, or relationship of employer and employee between the Parties for any purpose whatsoever. Neither Party will exercise control over the activities and operations of the other party. Each Party will, subject to the terms and conditions of this Agreement, conduct all of its business in its own name and as it deems fit. Neither Party will engage in any conduct inconsistent with its status as an independent contractor, have authority to bind the other with respect to any agreement or other commitment with any third party, or enter into any commitment on behalf of the other.
20.8. In the event any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be illegal and/or unenforceable, the Parties agree to negotiate in good faith in order to agree on a new replacing provision only to the extent necessary to make it enforceable and the other provisions of the Agreement will remain in full force and effect.
20.9. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. If any court determines that any provision of this Agreement or any part thereof is invalid or unenforceable, the court shall limit or modify the provision to the minimum extent necessary to permit enforcement to the greatest extent permitted by law, and the provision, as modified, shall then be enforced.
20.10. We have the right to amend the terms and conditions of this Agreement, in whole or in part, giving you one (1) month’s prior notice of the amended terms and conditions. You have the right to give us notice of termination of this Agreement immediately upon receipt of our notice of amended terms; provided, however, that you shall be deemed to agree to the notified amendment of this Agreement if you fail to exercise your right to terminate the Agreement within fifteen (15) days from our notice as specified above. In the event of termination pursuant to this Section 20.10, we shall refund you pro rata any prepaid Fees for the period from the effective date of your termination through the end of the otherwise then current Term of this Agreement.
20.11. 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 under this Agreement or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No waiver of any provision shall be construed as a waiver of any other provision. Any waiver must be explicitly stated in writing and signed by the Party waiving compliance. Any single or partial exercise of any right, remedy, power or privilege hereunder shall not preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20.12. Notwithstanding the termination of this Agreement for any reason, those provisions of this Agreement that by their nature are meant to survive termination shall continue in full force and effect following such termination. These include, without limitation, the payment obligations pursuant to Section 11, the exclusion of warranty pursuant to Section 13.2, the limitation of liability pursuant to Section 14, the indemnification provision pursuant to Section 15, and the confidentiality obligations pursuant to Section 16.
20.13. The captions and headings in this Agreement are inserted solely for convenience and ease of reference only and shall not constitute any part of this Agreement, or have any effect on its interpretation or construction.
20.14. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted assigns and successors, except as expressly otherwise provided in this Agreement.
20.15. Except where specifically stated otherwise, such as without limitation in Section 6.1, Section 14 , Section 15.1, and Section 20.14, this Agreement shall not create any rights of any Person other than the Parties hereto.
20.16. Any notice, request, consent, demand, offer or other communication required or permitted to be given or made under this Agreement shall be in writing and shall be delivered personally or sent by: (i) e-mail, (ii) an electronic communication feature of the Services designated by us to allow for the exchange of written communication between you and us (for example contained as a feature of your Account, each an “Electronic Services Message”), (iii) facsimile, (iv) overnight courier, (v) regular mail or (vi) certified mail, postage prepaid and, in all cases, addressed and sent to the receiving Party at the relevant address referred to in the Order Form or at such other address as either Party may later communicate to the other Party in accordance with this Section 20.16. Any notice shall be deemed given: (a) if delivered personally or by overnight courier, upon delivery as evidenced by delivery records, (b) if by e-mail, Electronic Services Message or facsimile transmission, upon successful delivery of the transmission as evidenced by transmission records, or (c) if sent by regular mail or certified mail, postage prepaid, five days after the date of mailing or upon actual receipt whichever is earlier.
20.17. For purposes of interpreting this Agreement, both Parties shall be deemed to have drafted this document jointly. The Parties acknowledge that each has had an opportunity to fully consider the terms of this Agreement; that each has been advised by this writing to consult with an attorney in connection with the terms of this Agreement; and that each has independently chosen either to follow or to disregard the advice of the Party’s own attorney.
20.18. Except as provided for in Section 14.2, any remedy specified in this Agreement will be in addition to and not in lieu of, and will be without prejudice to, any other rights and remedies which a Party may have under this Agreement or under applicable law.