Talkwalker Free Services - Terms of Service (Effective as of July 31, 2018)

TERMS AND CONDITIONS FOR THE ACCESS AND USE OF THE TALKWALKER FREE SERVICES, THAT ARE FREE OF CHARGE AND FREE OF OBLIGATION TO PURCHASE, AS OF JULY 31 2018, PLEASE READ BEFORE USE.

These Terms of Service (hereinafter the “Agreement”) are entered into by:

The beneficiary of the Talkwalker Free Services or user who is granted access to Talkwalker Free Services (hereinafter “You” or “User” or a “Party”); and Talkwalker Sàrl, a société à responsabilité limitée company, incorporated under the laws of Luxembourg, registered with the RCS Luxembourg under number B205483, with its registered office at 12-16 avenue Monterey, L-2163 Luxembourg (hereinafter “Talkwalker”, “we” or “us” or a “Party”). You and Talkwalker are hereinafter together referred to as the “Parties”.

BY CLICKING ON THE “I AGREE” BUTTON BELOW THE FORM AND/OR BY USING THE FREE SERVICES, YOU ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN. USE OF THE FREE SERVICES IS NOT ALLOWED FOR THOSE UNDER THE AGE OF EIGHTEEN. FURTHER, YOU WARRANT THAT YOU ARE ACTING IN A PROFESSIONAL CAPACITY.

1. DEFINITIONS

1.1. “Talkwalker Alerts Service” means the publicly accessible alerting system made available by Talkwalker at www.talkwalker.com/en/alerts that monitors various online and social media sources such as blogs, news, forums, and social networks.

1.2. “Talkwalker Free Search Service” means the software application and related services that can be accessed through the internet, which consists of a social-media and online media search tool, and which searches, analyzes, and provides links to a limited set of Query Results.

1.3. “Talkwalker Free Services” or ‘Free Services” means Talkwalker and its licensors’ proprietary software as a service application and associated technologies, notably the Talkwalker Free Search Services and Talkwalker Alerts Service.

1.4. “Third-Party Content” means any data, information, or content originating from or belonging to any Third-Party Platform.

1.5. “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 as part of the query made in connection with the Free Services, and to which User may access discretionarily through the provision of the Free Services.

 2. CONDITIONS OF USE OF THE TALKWALKER FREE SERVICES

2.1. As of the date of the first log on to the Talkwalker Platform accessible at www.talkwalker.com, you agree to be bound by and comply with this Agreement.

2.2. The Free Services are provided free of charge exclusively to you on an as-is and as-available basis. As such, you understand and acknowledge the Free Services are dependent upon the availability, completeness, and accurateness of content, decided on a discretionary basis, by Third-Party Platforms and you further understand and acknowledge that Talkwalker may decline access to the Free Services at any time and at its sole discretion.

2.3. Talkwalker may, at any time, change the conditions of provision of the Free Services in any form whatsoever, without prior notification and with immediate effect, including to restrict, expand, and/or partially or entirely discontinue the Free Services, in general or to specific users.  The then-updated version of these terms and conditions, if any, shall be enforceable as from the date they are displayed on Talkwalker’s webpage. Your continued use of the Free Services after the above-mentioned display shall be deemed to constitute your acceptance of the then-updated version of the terms and conditions.  

2.4. Restrictions

2.4.1. You may not access and use the Free Services in breach of certain limitations attached to the content accessible through the Free Services that can be found at https://www.talkwalker.com/content-limitations (“Content Limitations”), certain rules applicable to the access and use of the Free 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 Free Services for a purpose other than brand monitoring and brand analytics. You shall not sell, resell, re-publish, or distribute the Free Services.

2.4.2. You cannot breach any term of any Third-Party Platform’s terms of use while accessing Third Party Content.

2.4.3. You shall not use the Free 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.

2.5. You acknowledge and agree that Talkwalker has the right to monitor any use of the Free Services for the purposes of (i) the performance of the Free Services including support, maintenance, and account management services if any; (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 use of the Free Services 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 Free Services and the Agreement.

2.6. You hereby authorize Talkwalker to use, technically modify, and technically integrate into any other derivative works any data or information you provide during your use of the Free Services, including intellectual property rights, if any. You further grant Talkwalker a worldwide, perpetual, irrevocable, sublicensable to our affiliates, and royalty-free license to use and incorporate any correction, improvement request, recommendation, suggestion, or other feedback provided by you.

 3. WARRANTIES 

3.1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE FREE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Talkwalker and its licensors and suppliers disclaim all warranties of any kind, whether express, implied, statutory, or otherwise, including without limitation, any warranty of merchantability, fitness for a particular purpose, title, non-infringement, quiet enjoyment or from a course of dealing, course of performance or usage in trade. Further, Talkwalker does not warrant that (i) the Free Services will meet your requirements; (ii) your use of the Free Services will be secure, uninterrupted, or error free; and (iii) any information obtained will be accurate or reliable; and (iv) that the Free Services would comply with any law or regulation applicable to you. Any data or information you receive via, or as a result of its use of, the Free Services is not professional advice of any sort.

 4. LIMITATION OF LIABILITY

4.1. TO THE FULLEST EXTENT PERMITTED BY LAW, TALKWALKER SHALL ONLY BE LIABLE FOR 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, NOR SHALL TALKWALKER BE LIABLE FOR PROBLEMS CAUSED BY OTHERS, INCLUDING BY THE THIRD-PARTY PLATFORMS YOU MAY BE OFFERED TO BE REDIRECTED TO, OR A FORCE MAJEURE EVENT, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR FROM OR IN CONNECTION WITH THE USE OF THE FREE SERVICES, OR IN CONNECTION WITH ANY OTHER SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT.

4.2. TALKWALKER'S TOTAL AND AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO A FIXED AMOUNT OF FIFTY EUROS (€ 50).

4.3. 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 Free Services to no longer be accessible.

4.4. any action against Talkwalker based on or arising out of this Agreement or any other legal theory must be brought within three (3) months after the cause of action arises or after expiration or termination of this Agreement, whichever is earlier.

5. DATA PROTECTION

5.1. You acknowledge Talkwalker may process personal data concerning you, your employees, or points of contact for the purpose of performing the Agreement. You acknowledge and agree that you have carefully read and understood the Privacy Policy (www.talkwalker.com/privacy-policy) incorporated in this Agreement by reference. The Free Services are hosted on data centers located in the European Union. You can update or correct any of your personal data at any time by contacting Talkwalker at dpo@talkwalker.com. Both Parties acknowledge and agree to be bound by the Data Processor Agreement as available at https://www.talkwalker.com/legal (“DPA”).

6. TERMINATION

6.1. This Agreement may be terminated immediately without penalty by either Party at any time subject to a notification to the other party’s email. Upon termination for any reason, you shall immediately cease using the Free Services and Talkwalker reserves the right to block access to your account and to delete any data put in and/or stored by you within such Account. At the end of the Free Services, any data entered by you will be permanently lost, unless you acquire the concerned service before the end of the Free Service period.

7. MISCELLANEOUS

7.1. Applicable Law and Venue. The governing law and forum shall be the laws and courts of Luxembourg.

7.2. Entire Agreement. These Terms of Service, along with the Content Limitations, the Basic Conditions of Use, and the Data Processor Agreement (collectively “Agreement”) constitute the sole and entire agreement of the Parties with respect to the subject matter and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. 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.

7.3. Notwithstanding the termination of this Agreement for any reason, Sections 2.4, 4, 7.1, 7.3, 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.

7.4. All notices, demands, and requests will be deemed given when sent by e-mail (if to Talkwalker: csm@talkwalker.com  with a copy to legal@talkwalker.com) 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.

7.5. You undertake to notify Talkwalker immediately of any change in its contact details by providing its updated contact details at: contact@talkwalker.com.