Terms of Service
(Effective as of August 1, 2024)

4. Company’s Responsibilities.

4.1. Acceptable Use. For the Term and within the scope provided in the Order Form, the Services will include the right for Company to generate, view and use analytics and reports for internal business use only. The information, reports, and analytics generated, viewed or received by authorized users on the Talkwalker Platform, constitute “Generated Reports” which Company acknowledges may quote or incorporate excerpts of certain material owned by Third-Party Platforms. Company and its authorized users must access and use the Services and the Generated Reports in accordance with the Basic Conditions of Use (located at https://www.talkwalker.com/basic-conditions-of-use), and the Content Limitations (located at https://www.talkwalker.com/content-limitations), and all applicable laws or regulations. Company and authorized users shall not sell, resell, re-publish, or distribute the Generated Reports and/or Services without Talkwalker’s prior express written consent. Company must not breach any Third-Party Platform’s terms of use. In particular, Company agrees to: (i) X (formerly Twitter)’s Terms of Service located at http://twitter.com/tos, X’s privacy policy located at http://twitter.com/privacy, and X’s Rules located at http://twitter.com/rules; (ii) YouTube’s Terms of Service located at https://www.youtube.com/t/terms; and (iii) Meta’s Terms of Service at https://www.facebook.com/legal/terms, Meta’s Data Policy at https://www.facebook.com/privacy/explanation, and Meta’s Platform Policy at https://developers.facebook.com/terms. Company further agrees to be bound by any terms and conditions of all other Third-Party Platforms made available through the Services. Company shall not use the Services as a law enforcement tool or for the tracking of individuals, discrimination of any sort, disciplinary purposes, etc. Further details are provided in the Basic Conditions of Use and Content Limitations.

4.2. Professional Services. If your Order Form includes professional services (such as SCR Services customized analyses, account set-up, provisioning, or training) (“Talkwalker Professional Services”), the Talkwalker Professional Services Terms contained in a statement of work and attached to such Order Form shall govern those Talkwalker Professional Services.

4.3. Social Content Ratings Services. If your Order Form includes Social Content Ratings Services and SCR Information (collectively, the “SCR Services”), you acknowledge that the SCR Services are made available to Company for its confidential internal use within the Licensed Geographic Region as identified in the Order Form, except that Company may disclose “Limited Excerpts'' (meaning SCR Information that is not of sufficient quantity or quality as to have independent commercial value, as determined by Talkwalker in its sole discretion) to advertisers, advertising agencies, media buyers, and external communications having a legitimate business interest in the SCR Information as part of Company’s advertising and sales efforts; provided, however, that any disclosure must be accurately sourced to Talkwalker, not claim Talkwalker as the source of any independently generated information, and not be presented in a misleading manner. The data and information included in Services are referred to as “SCR Information”. Company agrees (i) that the SCR Services are the confidential and proprietary information of Talkwalker, and (ii) to treat the SCR Services provided hereunder and this Agreement as confidential information and not disclose such confidential information, other than as provided in this Agreement, without Talkwalker’s prior written consent. Company may not provide SCR Information to third parties (including X and Meta content) via API, bulk download, export features, or other transferable means. SCR Information (i) does not provide a measure of program or artist popularity per se, as other factors, such as the network or station, time of day, season, weather and competing, preceding and following programs, are also relevant, and (ii) does not provide a measure of network, station or cable network popularity or values per se, because such data also reflect other factors, such as program and artist popularity, time of day, season, weather and competing, preceding and following programs.

4.4. Blue Silk GPT. Company’s use of Blue Silk GPT is subject to the terms and conditions available at: https://www.talkwalker.com/blue-silk-gpt-terms.

4.5. Partner Services. In the event Company acquires the Services through a third-party company authorized to sell and grant access to the Talkwalker Services (“Partner”), Company shall additionally comply with any terms and conditions of that Partner. Company may contact partners@talkwalker.com for more information. In such an event, any payment of fees and the conditions thereof shall be determined exclusively by the Partner.

4.6. API Service. If your Order Form includes the API Service, specific conditions will be provided to Company by Talkwalker, as set out in such Order Form.

4.7. App Directory. Developer Apps may be available for purchase on the Talkwalker Platform, subject to specific conditions as specified in an Order Form.

4.8. Command Center. If your Order Form includes a Command Center, the use of the Command Center is strictly limited to display inside of a private building (i.e. not open-to-the-public, to the exclusion of any display on a Public Screen). Under no circumstances shall Company use the Command Center on a Public Screen. For the sake of clarity and for illustrative purposes, the following displays are not allowed: a display in a visitor’s lobby, airport, trade show, etc. In the event Company wishes to display the Services on a Public Screen, Company must inform Talkwalker and Talkwalker will liaise with X and/or other Third-Party Platforms to seek approval for such Public Screen. Company shall not display the Services on a Public Screen without prior written approval from Talkwalker. Additional terms and conditions may be required as a condition of use.

4.9. Account Information. You are responsible for the completeness and accuracy of the account information you provide to us. You will promptly notify us upon becoming aware of any unauthorized access to or use of your login credentials or account.

5. Intellectual Property.

5.1. Services and Generated Reports. We keep all rights and interests in the Services. Company is made aware of and acknowledges that the Generated Reports may (i) quote or incorporate excerpts of certain material owned by certain Third-Party Platforms as detailed in this Agreement, and as made available discretionarily on and by those Third-Party Platforms, and (ii) analytic extracts of Talkwalker Services that include graphs, statistics and metrics generated by Talkwalker Platform for Company via the Service, to the exclusion of any Third Party Content contained therein (“Talkwalker Metrics”). While the quotation of the Third-Party Content accessed to through the use of the Services and included in the reports shall be for Customer’s internal business use only which excludes the right to publicly display, republish or broadcast or else, During the Term, Talkwalker grants you a limited, worldwide, non-exclusive, non-transferable license, without a right to sublicense, to use the Talkwalker Metrics and Company will be free to reproduce, adapt, or otherwise use on any media or materials, so long as Third-Party Content does not appear on those extracts in such display. Notwithstanding the foregoing, Company acknowledges that the Generated Reports cannot be used for training, in combination with, or as an input to any artificial intelligence or large language model developed by Company or any third party.

5.2. Feedback. Company further grants Talkwalker a fully paid-up, worldwide, non-exclusive, 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 Company.

5.3. Company Data. Company shall own all right, title and interest in and to all of the Company Data and shall have sole responsibility for the legality of such Company Data. You grant us a non-exclusive, worldwide, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, publish, transmit, display and distribute your Company Data solely for the purposes of providing, and supporting and improving the Services.

6. Term and Termination.

6.1. Term of Agreement. This Agreement will commence on the first day of the initial term set forth on your first Order Form and will continue in effect until the earlier of: (a) the expiration of all Order Forms applicable to you (including any renewal periods unless notice of non-renewal is provided as set out in Section 6.2); or (b) the termination of this Agreement in accordance with its terms (the “Term”).

6.2. Term of Order Form. The term of each Order Form will start on the first day of the initial term specified on the Order Form, and will continue for the specified term. Except as expressly stated otherwise in an Order Form, all Order Forms will automatically renew for subsequent one-year renewal periods unless a party gives the other party written notice of non-renewal to the other party (if to Company: the e-mail address as set forth in the Order Form; if to Talkwalker: csm@talkwalker.com with a copy to legal@talkwalker.com (each a “Non-Renewal Notice”)) at least sixty (60) days prior to the end of the then-current term. Talkwalker reserves the right to increase the Fees for Services and/or Partner Services on renewal by giving you written notice thereof (which notice may be given by email) provided that if Talkwalker gives you such notice less than ninety (90) days prior to the end of then-current Term, you will have thirty (30) days thereafter to give us a Non-Renewal Notice.

6.3. Termination. A party may terminate this Agreement for cause (a) immediately if the other party has failed to cure a material breach within thirty (30) days (the “Cure Period”) of receiving written notice of that material breach from the other party; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Where the Company is the party in breach, during the Cure Period, Talkwalker reserves the right to suspend access to the Services. Without affecting any other right or remedy available to it, Talkwalker may immediately 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; (ii) in the event of an adverse judgment, administrative or court order, regulation, or similar, in which case Talkwalker will notify Company immediately of the effective date at which time the Services will be stopped; or (iii) in the event of an actual or potential reputational damage to Talkwalker.

6.4. Effects of Termination. Upon termination of this Agreement for any reason: (a) all Order Forms will automatically terminate; (b) your access to Talkwalker accounts, Services and Partner Services will be terminated and you will immediately cease all use thereof; and (c) you will pay all unpaid amounts you owe to Talkwalker. If you terminate this Agreement in accordance with Section 6.3, Talkwalker will refund any Fees you paid in advance for the Services and Partner Services applicable to the period after termination. If Talkwalker terminates this Agreement in accordance with Section 6.3(a) and (b), then you will pay any unpaid Fees for the remainder of the term of each Order Form. In no event will termination of this Agreement relieve you of your obligation to pay any amounts payable to Talkwalker for the period prior to the date of termination.

6.5. Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 5, 8, and 9 will survive the expiration or termination of this Agreement.

7. Fees and Payment.

7.1. Fees. You will pay all fees as and when described in the Order Form(s) (the “Fees”).

7.2. Invoicing. We will invoice you for the Fees in the currency set forth on the applicable Order Form. All undisputed invoices are payable by the “Due Date” as defined in the Order Form. Any disputed amounts will not affect payment of non-disputed amounts. You will make payments to the entity and address set forth in the invoice.

7.3. Late Payment. If any undisputed amounts invoiced are not received by Talkwalker by the due date, then, at our discretion, such charges may accrue late interest at the lower of: (a) the rate of 12% per year (1% per month per annum); or (b) the maximum rate permitted by law from the date such payment was due until the date paid. In addition, upon fifteen (15) days’ written notice to you provided after the due date of any undisputed amount, we may suspend your access to the Services if we have not received the amounts invoiced in full.

7.4. Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”) associated with your subscription to the Services, which for clarity does not include any taxes based on Talkwalker’s income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 7.4, the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement will be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable will be increased as necessary so that, after making all required deductions and withholdings, we receive an amount equal to the sum we would have received had no such deduction or withholding been made.

8. Confidentiality, Security & Data Protection

8.1. Confidential Information. Talkwalker and Company may exchange confidential information (“Confidential Information”) in the course of your negotiation and use of the Services. Talkwalker’s Confidential Information may include, but is not limited to, non-public information about our pricing, personnel, or partnerships, our product roadmap, our security and data protection documentation, or other non-public information we identify as confidential. Company’s Confidential Information includes non-public information about your policies, personnel (including names and email addresses of your Authorized Users), or plans or strategies (such as marketing plans or social strategies you share with Talkwalker in the course of our delivery of Talkwalker Professional Services), and includes Company Data but does not include any other Content published, communicated, or transmitted to or through a Third-Party Platform. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if (a) it was lawfully in the recipient's possession before receiving it from the discloser; (b) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (ci) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (d) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.

8.2. Security Standards. During the Term, Talkalker will maintain the “Security Standards” described below:

(a). Security Practices. Talkwalker will implement and maintain security practices as described at https://www.talkwalker.com/security-practices.

(b). Upon request, but no more than once annually, Talkwalker will provide Company with (a) a copy of its most recent security audit report (which may include summaries of test results or equivalent measures taken to assess the effectiveness of its control environment), (b) a summary of its most recent penetration testing results, or (c) both.

(c). Disaster Recovery and Business Continuity. Talkwalker has and will maintain a disaster recovery and business continuity plan.

(d). Breach Notification. Talkwalker will notify Company without undue delay (but in any event within 72 hours of becoming aware) of any unauthorized access to Company account (a “Breach”), will promptly take all necessary steps to mitigate the Breach, and will provide Company with reasonable cooperation in investigating the Breach (including, on request and to the extent reasonable, providing with copies of relevant records, logs, or other materials).

8.3. Privacy & Data Protection. Company acknowledges Talkwalker may process personal data concerning its employees or points of contact for the purpose of performing its obligations under this Agreement in accordance with its Privacy Policy (https://www.hootsuite.com/legal/privacy). With the exception of SCR Services, which are hosted with Amazon Web Services in the United States, the Services are hosted on data centers located in the European Union. Both Parties acknowledge and agree to be bound by the Data Processing Addendum, as available at https://www.talkwalker.com/resource/legal/privacy-addendum.pdf.

Warranties, Indemnities & Limitation of Liability

WARRANTIES & DISCLAIMER

9.1. Mutual Warranties. Each of Talkwalker and Company represents and warrants that (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.

9.2. Talkwalker Warranties. Talkwalker warrants that during the Term it will: (a) provide the Services with reasonable skill and care; (b) maintain all known licenses and permissions necessary to perform its obligations under this 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.

9.3. Disclaimer. TALKWALKER AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES FOR THE SERVICES AND/OR THE GENERATED REPORTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. ANY ACCESS BY COMPANY OF ANY THIRD-PARTY PLATFORM OR OTHER WEBSITE VIA HYPERLINK FROM THE SERVICES IS SUBJECT TO THE TERMS OF SERVICE OF SUCH THIRD-PARTY PLATFORM(S) OR WEBSITE(S) AND AT COMPANY’S SOLE RISK. TALKWALKER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE ACCURACY, AVAILABILITY, COMPLETENESS, FUNCTIONALITY, RELIABILITY, SECURITY, TIMELINESS, USEFULNESS, OR ANY OTHER ASPECT OF ANY THIRD-PARTY PLATFORM OR THIRD-PARTY CONTENT OR WEBSITE AND THE DATA AND INFORMATION CONTAINED THEREON OR OBTAINED THEREFROM.

INDEMNITIES

9.4. Indemnification by Talkwalker. Subject to Company’s compliance with Section 9.6, Talkwalker will defend, indemnify, and hold harmless Company and its directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim that the technology that the Talkwalker Platform used to provide the Services directly infringes the third-party’s intellectual property rights (a “Claim”), subject to Company’s compliance with the Agreement.

Talkwalker has no responsibility for any Claim resulting from:

(a) Company’s use of Third-Party Platforms and/or Third-Party Content;

(b) Company Data or conditions or circumstances of collection of the Company Data by Company;

(c) Company’s use of technology not provided or authorized by Talkwalker;

(d) Company’s unauthorized combination of the Services and/or the Generated Reports with other technology that Company uses or decides to add to the Services and/or the Generated Reports, where the infringement would not have occurred but for such combination;

(e) Company’s use of the Services and/or the Generated Reports in non-compliance with this Agreement and/or in violation of applicable law and/or regulation; and

(f) the use of the Services and/or the Generated Reports by Company after notice to Company of the alleged or actual infringement from Talkwalker or any appropriate authority.

If a Claim appears likely or in the event of any actual Claim of infringement, Talkwalker, in its sole discretion, may:

(i) modify the Services;

(ii) procure the necessary rights for Company to continue using the Services; or

(iii) replace the Services or a portion thereof with a functional equivalent.

If Talkwalker determines that none of these options are reasonably practical, Talkwalker may without further formality, terminate the Services or a portion thereof. In case of termination, Talkwalker will refund Company any remaining prorated portion of the prepaid fees. Without limiting this Section 9.4, in the event of any actual or alleged claim of infringement, Talkwalker reserves the right to: (x) discontinue Company’s use of the Services and/or the Generated Reports, (y) block access to the Services and/or the Generated Reports (including blocking access to the Talkwalker Platform), and/or (z) make inaccessible or delete all or part of the data that Company entered into the Services or that have been added to Talkwalker’ systems as a result of Company’s use of the Services.

This Section 9.4 sets forth Talkwalker’s sole liability (and Company’s sole remedy) regarding infringement or misappropriation of third-party intellectual property rights.

9.5. Indemnification by Company. Subject to Talkwalker’s compliance with Section 9.6, Company will defend, indemnify, and hold harmless Talkwalker, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: (a) alleging that Talkwalker’s use of Company Data in accordance with this Agreement infringes or violates the intellectual property rights, privacy rights, or any other rights of a third party or violates any applicable law; or (b) arising from Company’s use of the Services, Third-Party Content, and/or Third-Party Platforms to which the Services provide access, in breach of Section 4.1 of this Agreement, or breach of any applicable law.

9.6. Indemnification Procedure. The indemnified party will: (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.

LIMITATIONS OF LIABILITY

9.7. MAXIMUM LIABILITY. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9.7 THROUGH 9.9, AND NOT INCLUDING COMPANY’S OBLIGATION TO PAY ALL FEES OWED TO TALKWALKER HEREUNDER, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, EXCEED THE FEES PAID BY COMPANY FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. FOR CLARITY, THE CALCULATION OF EACH PARTY’S LIABILITY UNDER THIS SECTION 9.7 EXCLUDES ANY FEES PAID BY COMPANY TO A THIRD PARTY OR FOR ANY PARTNER SERVICES, EVEN WHERE TALKWLAKER’S SERVICES ARE BUNDLED WITH OR OTHERWISE PROVIDED IN CONJUNCTION WITH PARTNER SERVICES.

9.8. EXCLUDED DAMAGES.

(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS, GOODWILL OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT.

(b) UNDER NO CIRCUMSTANCES SHALL TALKWALKER BE LIABLE IN THE EVENT A THIRD-PARTY PLATFORM RESTRICTS, EITHER TEMPORARILY OR PERMANENTLY, ACCESS TO THIRD-PARTY CONTENT. FURTHER TALKWALKER SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACT OR OMISSION MADE BY COMPANY BASED ON THE GENERATED REPORTS OR THE SERVICES IN GENERAL.

(c) COMPANY IS SOLELY RESPONSIBLE FOR OBTAINING, SUBSCRIBING, INSTALLING, MAINTAINING, AND OPERATING ALL ADEQUATE SOFTWARE (SUCH AS A BROWSER), HARDWARE, COMPUTER EQUIPMENT, OR OTHERWISE NECESSARY TO USE THE SERVICES AND/OR THE GENERATED REPORTS. TALKWALKER MAY NOT BE HELD LIABLE FOR ANY DEFECTS OR DELAYS IN THE SERVICES AND/OR THE GENERATED REPORTS ARISING AS A RESULT OF ANY PROBLEM ASSOCIATED WITH THE INTERNET NETWORK.

(d) YOUR EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE SERVICE LEVEL AGREEMENT.

9.9. Exclusions. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF EITHER PARTY FOR (I) INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (II) DEATH OR BODILY INJURY CAUSED BY THE NEGLIGENCE OF THAT PARTY, ITS EMPLOYEES, OR ITS AGENTS; (III) FRAUDULENT MISREPRESENTATION OR WILLFUL MISCONDUCT OF THAT PARTY OR ITS EMPLOYEES; OR (IV) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

9.10. Basis of Bargain. THE ESSENTIAL PURPOSE OF SECTIONS 9.7 THROUGH 9.9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TALKWALKER WERE TO ASSUME ANY FURTHER LIABILITY. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

10.1. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without your consent, to any of our Affiliates, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets.

10.2. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

10.3. Publicity. Unless you provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that we may disclose that you are a customer of the Services and may use your name(s) and logo(s) in: (a) Talkwalker’s digital, online, and printed marketing materials (including on our websites); and (b) external-facing presentations, including to individual clients and prospects and at trade shows, conferences, and similar events.

10.4. Force Majeure. Neither party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such party’s reasonable control, including: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

10.5. Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the Talkwalker website. It is important for you to review this Agreement before using the Services and from time to time, though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Services after any such changes are effective will constitute your consent to such changes. Except for changes made by us as described here, no other amendment or modification of this Agreement will be effective unless set forth: (a) in an Order Form issued by Talkwalker and signed by Company; or (b) in an agreement signed or otherwise agreed in writing by both Company and Talkwalker.

10.6. Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.

10.7. Notices to You. All notices, demands, and requests will be deemed given when sent by e-mail to the Parties’ e-mail addresses (for Company: the e-mail address as set forth in the Order Form) unless otherwise stated. For contractual purposes, Company: (a) consents to receive communications from Talkwalker in electronic form; and (b) acknowledges and agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Talkwalker provides to Company electronically, including in pdf form, satisfy any legal requirement that such communications would otherwise satisfy if they were to be in writing. Company shall notify Talkwalker immediately in the event of a change in contact details by providing the updated information to: contact@talkwalker.com.

10.8. Notices to Talkwalker. All notices, demands, and requests will be deemed given when sent by e-mail to the Parties’ e-mail addresses (for Talkwalker: csm@talkwalker.com, with a copy to legal@talkwalker.com) unless otherwise stated.

10.9. Waivers. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.

10.10. Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.

10.11 Insurance. Talkwalker has and will maintain industry-standard insurance policies. No more than once annually, you can obtain a copy of our current insurance certificate showing our existing coverage upon request.

10.12. Governing Law and Dispute Resolution.

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.

10.12.1. If Company is located in North or South America, or the territories or possessions of the United States, this Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of the State of Delaware and each party irrevocably agrees that the state and federal courts located in Wilmington, Delaware shall have exclusive jurisdiction to settle any claim (including non-contractual disputes or claims) arising out of in connection with this Agreement or its subject matter or formation.

10.12.2. If Company is located in a territory within the Asia-Pacific region (excluding Japan, Australia, or New Zealand), this Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of Singapore, without giving effect to any conflict or choice of law provisions. Any and all disputes arising out of or in connection with this Agreement will be finally settled by binding arbitration under the Arbitration Rules of the Singapore International Arbitration Center (“Rules”) (which Rules are deemed to be incorporated by reference into this 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.

10.12.3. If Company is located in Japan, this Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of Japan, without giving effect to any conflict or choice-of-law provisions. Any and all disputes arising out of or in connection with this Agreement will be finally settled by binding arbitration under the Arbitration Rules of the Singapore International Arbitration Center (“Rules”) (which Rules are deemed to be incorporated by reference into this 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.

10.12.4. If Company is located in a territory other than those listed in Sections 10.12(a) to 10.12(c), this Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with its subject matter or formation shall be governed by the laws of the Grand-Duchy of Luxembourg and each Party irrevocably agrees that the judicial district of Luxembourg-City shall have exclusive jurisdiction to settle any claim (including non-contractual disputes or claims) arising out of in connection with this Agreement or its subject matter or formation.

10.13. Export Compliance. You will not use or access the Services if you are located in any jurisdiction in which the provision of the Services is prohibited under applicable laws (a “Prohibited Jurisdiction”) and you will not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that (a) you are not named on any government list of persons or entities prohibited from transaction with any Canadian, U.S., or EU person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use the Services in violation of any export embargoes, prohibitions or restrictions; and (d) you will comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located.

10.14. Entire Agreement. This Agreement, including the other documents referred to as applicable to the Services in this Agreement, is the entire agreement between you and Talkwalker for your use of the Services. Any prior understandings, statements or and agreements (oral or written) (including any prior non-disclosure or confidentiality agreements or similar) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns. A person who is not party to this Agreement has no right to enforce any of these terms.