Essentials Terms and Conditions

2.1. License.  Subject to compliance with this Agreement, Company grants Customer a limited, non-exclusive, revocable, non-transferable (other than as set forth in this Agreement), non-sublicensable right to allow Users to access and use the Platform for Customer’s own internal business purposes in accordance with this Agreement and Customer’s Subscription.  

2.2. Restrictions.  Except as may be expressly permitted by this Agreement, Customer shall not (a) license, sublicense, sell, resell, rent, transfer, assign, or otherwise commercially exploit or make the Platform available to, or use the Platform for the benefit of, any third party; or (b) access the Platform (i) in order to build a competitive product or service, (ii) in order to build a product using similar features, functions or graphics of the Platform; (iii) in order to copy any features, functions or graphics of the Platform; or (iv) for any other competitive purposes.

2.3. System Requirements.  Customer is responsible for meeting the then-current hardware, operating system, browser and other technical requirements necessary to properly use and access the Platform, as described in the Help Center.

2.4. Usage Metrics.  Access to the Platform may be subject to usage limits, including, for example, to the categories and quantities of Usage Metrics specified in the applicable Order Form.  If a category of Usage Metric is not included in the Order Form, the default quantity is zero (0).  Company may monitor Customer’s usage and bill Customer for any usage beyond the Usage Metrics specified in the applicable Order Form, provided that Company shall notify the Customer in advance of any such billing.  

2.5. Users.  The Platform may be used solely by the number of Users specified in the applicable Order Form and may not be used by more than that number of Users concurrently.  Each User account is personal to the individual to whom such account has been assigned (e.g., a User’s password may not be shared with any other individual); however, a User seat may be reassigned to a new individual replacing one who no longer requires ongoing use of the Platform.  For the avoidance of doubt, a generic User account, e.g., [email protected], even if only accessed by a single individual, is not a valid User account.    

2.6. Customer Obligations. Customer will (a) be responsible for all activities that occur under Customer’s account; (b) be responsible for Users’ compliance with these Terms; (c) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data; (d) in its capacity as a data controller, be responsible for ensuring that processing of personal data by or using the Platform complies with applicable laws and government regulations; (e) ensure that the use of any personal data extracted by Customer from the Platform complies with applicable laws and government regulations; (f) and (g) use the Platform only in accordance with the Documentation and all applicable laws and government regulations.  

2.7. Acceptable Use. Customer shall not  (a) use the Platform to upload, store or transmit infringing, libelous, abusive, inflammatory, fraudulent, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, or otherwise unlawful or tortious material, including material harmful to children, or to upload, store or transmit material in violation of third-party privacy, publicity or intellectual property rights; (b) use the Platform to store or transmit Malicious Code; (c) interfere with or disrupt the integrity or performance of the Platform or any Third-Party Services; (d) circumvent any limitations or security features included by Company in the use of the Platform or attempt to gain unauthorized access to the Platform or its related systems or networks; (e) permit direct or indirect access to or use of any Platform in a way that circumvents a contractual usage limit; (f) frame or mirror any part of any Platform, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; (h) use commenting or messaging functionality, functionality that allows posting or transmitting Company Data to outward facing, social or public platforms available via the Platform to post Company Data that violates any terms or conditions, policies, or guidelines of any social media platform or other platform or service to which it is posted; (i) use the Platform to transmit unsolicited commercial communications; (j) modify, create derivative works of, translate, reverse engineer, decompile, or disassemble the Platform or otherwise recreate or gain access to the source code (to the extent such restriction is permitted by law); or (k) use the Platform to perform systematic monitoring of individuals or groups of individuals for the purpose of unlawful surveillance.

2.8. Third-Party Services.  If Customer enables the Platform to access any Third-Party Services, Customer acknowledges that its use of such Third-Party Services shall be governed solely by the terms of use and privacy policies of such Third-Party Services (including, but not limited to, the Facebook Terms of Service located at https://www.facebook.com/terms.php, the Twitter Terms of Service located at https://twitter.com/en/tos, the Twitter Privacy Policy located at https://twitter.com/en/privacy, the YouTube Terms of Service located at https://www.youtube.com/t/terms and the WhatsApp Business Solution Terms located at https://www.whatsapp.com/legal/business-solution-terms/) and that it shall comply with all such terms and policies.  By enabling the Platform to access such Third-Party Services, Customer is expressly permitting Third-Party Services to access or otherwise process Customer Data solely as required for the operation of the Third-Party Services.  Company makes no representations and shall have no liability or obligation whatsoever to Customer in relation to any aspect of such Third-Party Services, nor shall Company be liable for disclosure, use, changes to, or deletion of Customer Data by Third-Party Services, or any damage or loss Customer may suffer in connection with Customer’s enablement, access or use of any such Third-Party Services.  If the provider of Third-Party Services ceases to make the Third-Party Services available for interoperation with certain features and functionality of the Platform, Company may stop providing access to such features or functionality without liability to Customer and Customer irrevocably waives any claim against Company with respect to such Third-Party Services.  To ensure optimal delivery and prevent unfair exploitation of the Platform, fair usage limits may apply to the number of accounts with Third-Party Services that Customer may manage via the Platform, as determined by Company in its reasonable discretion, taking into account the observed usage across Company’s entire customer base; provided that Company shall notify the Customer in advance in the event that any such limits affect the Customer’s costs or usage hereunder. 

2.9. Free Trials.  If Customer registers for a free trial for an Essentials Solution, Company will grant Customer access thereto on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered; (b) the start date of any Subscription purchased by Customer; or (c) termination of the trial by Company in its sole discretion. ANY CUSTOMER DATA ENTERED INTO THE PLATFORM, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME ESSENTIALS SOLUTION AS COVERED BY THE TRIAL OR EXPORTS SUCH CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD.

2.10. Beta Modules.  From time to time, Company may invite customer to try Beta Modules, which Customer may accept or decline in its sole discretion.  Beta Modules are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms that will be provided to Customer.  Beta Modules are not considered the “Platform” hereunder and are provided solely and exclusively “AS IS” with no express or implied warranty of any kind; however, all restrictions, reservation of rights and the Customer obligations concerning the Platform and use of any Third-Party Services shall apply equally to the Customer’s use of Beta Modules.  Company may discontinue the Beta Modules at any time in its sole discretion.  Company does not promise or represent that Beta Modules will be made generally available.  CUSTOMER ASSUMES AND UNCONDITIONALLY RELEASES COMPANY FROM ALL RISKS ASSOCIATED WITH THE USE OF ANY BETA MODULES.   

2.11. Future Functionality. Customer acknowledges that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.

2.12. Modifications. Company reserves the right to alter the functionality of the Platform. 

2.13. Support. Customer support services will be provided as described in the Help Center.

3.1. Reservation of Rights.  All rights not expressly granted by one Party to the other hereunder are expressly and unconditionally reserved by such Party and may not be implied by or inferred from any provision of this Agreement or by the conduct of the Parties. 

3.2. Company IP.  As between Company and Customer, Company owns all Intellectual Property Rights in the Company Data and Platform (including all derivatives or improvements thereof).  Customer shall not remove or obliterate any copyright, trademark or proprietary rights notices from the Company Data and shall reproduce all such notices on all authorized copies of the Company Data and materials generated using the Company Data.  

3.3. Customer IP.  As between Company and Customer, Customer owns all Intellectual Property Rights in Customer Data.  Customer grants Company a worldwide, non-exclusive, royalty-free license to use, host, copy, distribute, perform, transmit, display and prepare derivative works of the Customer Data solely for the purpose of providing access to the Platform to Customer during the term of this Agreement.  

3.4. Company Affiliates & Third Parties. Company may share Customer Data or Customer’s Confidential Information (as defined below) with Company’s Affiliates or third-party vendors (“Vendors”) that work on Company’s behalf or provide services to Company in relation to Company’s provision of the Platform to Customer, including but not limited to necessary hardware, software, networking, storage, and technologies required to run the Platform, solely as required in connection with the provision of the Platform to Customer and provided those Affiliates or third-parties are subject to confidentiality restrictions regarding Customer Data and Customer’s Confidential Information (as defined below) no less stringent than those set forth herein. Customer hereby consents to such use of Customer Data and Customer’s Confidential Information (as defined below) by Affiliates and third parties.  For the avoidance of doubt, Company shall remain fully liable for all acts or omissions of any of its Affiliates or Vendors.  

3.5. Customer Feedback.  Customer grants to Company and its Affiliates a royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback relating to the Platform provided by Customer or Users.

3.6. Statistical Information.  Company may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information related to the usage and performance of the Platform based on Aggregated Data (collectively, “Statistical Information”).  Statistical Information will be owned solely by Company and may be used for any lawful business purpose, including, but not limited to, the provision and improvement of the Platform.  “Aggregated Data” means Customer Data that is: (a) anonymized and not identifiable to any person or entity; (b) combined with the data of other customers or additional data sources; and (c) presented in a manner that does not reveal Customer’s identity.

3.7. Customer Marks.  Company may use Customer’s trade name and logo in Company’s marketing materials (including its website, promotional presentations and client lists) for the limited purpose of identifying Customer as a customer of Company.

4.1. Fees.  Customer will pay all fees set forth on an Order Form.  Except as otherwise specified in these Terms or on an Order Form, (a) fees are based on the package subscribed to and not actual usage; and (b) except as set forth in Section 6.5, payment obligations are non-cancelable and fees paid are non-refundable.  Customer shall also pay for any additional usage charges that the Customer may incur related to the excess use of the Platform, as more fully set forth above.  All payments will be made in the currency specified on the Order Form unless otherwise agreed to by the Parties in writing.  Except as otherwise expressly specified on an Order Form, all fees set forth on an Order Form are payable in full, in advance.  

4.2. Payment Method.  Payment shall be made with a valid credit card or other payment method accepted by Company (“Payment Method”).  If Customer’s Payment Method expires and Customer does not provide Company with updated Payment Method information or cancel its account, Customer authorizes Company to continue charging, and Customer will remain responsible for any uncollected amounts.  By submitting its credit card information to Company, Customer authorizes Company to store such information with Company’s third-party payment service providers and to charge the credit card for payments due according to this Agreement until the Agreement is terminated according to Section 6 below.  

4.3. Monthly Billing.  For monthly Subscriptions, Customer will be charged on the first day of the Subscription Period and automatically on the same date of each subsequent month (“Monthly Billing Date”).  Customer will continue to be charged for its Subscription, including any upgrades, on a monthly basis unless the Agreement is terminated according to Section 6 below.  If the Customer cancels during the monthly Subscription Period, the Customer will not be entitled to any refunds or credits of prepaid and unused fees for the remainder of such monthly Subscription Period and will continue to have access to the Platform until the following Monthly Billing Date.

4.4. Annual Billing.  For annual Subscriptions, Customer will be charged on the first day of the Subscription Period and automatically on the same date of each subsequent year (“Annual Billing Date”).  Customer will continue to be charged for its Subscription, including any upgrades, on an annual basis unless the Agreement is terminated according to Section 6 below.  If the Customer cancels during the annual Subscription Period, Customer will not be entitled to any refunds or credits of prepaid and unused fees for the remainder of such annual Subscription Period and will continue to have access to the Platform until the following Annual Billing Date.  Notwithstanding anything to the contrary set forth herein, if agreed to by Company, Company shall invoice Customer for fees due in connection with annual Subscriptions, in which case such fees shall be invoiced in advance and due thirty (30) days from the invoice date, unless otherwise specified on the Order Form.  

4.5. Late Fees.  Any payment not received from Customer by the due date may accrue late fees at the rate of 1.5% of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.6. Payment Disputes.  If Customer, in good faith, reasonably disputes any invoiced amounts, Customer may withhold such disputed amounts, provided that Customer (a) timely pays the undisputed portion of the invoice; and (b) provides Company with prompt written notice (which may be by email) of the dispute and commences discussion with Company to promptly resolve the dispute. Company will not exercise its rights under Section 6.4 below if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.7. Taxes.  Fees are exclusive of all local, state, federal or foreign taxes, VAT, levies or duties of any nature.  Customer is responsible for payment of all taxes due to a governmental authority, if any, except for taxes imposed on Company’s net income.  Customer shall provide to Company any certificate of exemption or similar document required to exempt any transaction under an Order Form from sales tax or other tax liability.

4.8. Promotions.  Except as otherwise expressly specified on an Order Form, if Company offers Customer a promotion (e.g., promotional pricing) in connection with its Subscription, which Customer accepts, any such promotions shall only be applicable to the initial Subscription Period for which they are offered, and not to any future Subscription Periods.  

4.9. Upgrades.  If Customer chooses to upgrade its subscription during a Subscription Period, any incremental fees associated with such upgrades will be prorated over the remaining period of the then-current Subscription Period, billed to the Customer’s account and due and payable upon implementation of such upgrades.  In any future Subscription Periods, the fees billed Customer will reflect any such upgrades.

5.1. Confidential Information.  For the purposes of this Agreement, “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or proprietary, or that reasonably should be understood to be confidential or proprietary given the nature of the information and the circumstances of disclosures, including but not limited to business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information of Customer includes Customer Data.  Confidential Information of Company includes the Company Data, Documentation and the terms and conditions of this Agreement (including pricing).  Confidential Information will not, however, include any information that (i) was publicly known or made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party other than as a result of a violation of this Agreement by the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party; (iv) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations under this Agreement, and shall take actions reasonably necessary and appropriate to prevent the unauthorized disclosure of the Confidential Information, at all times exercising the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Except as otherwise permitted herein, each Party agrees to restrict access to the Confidential Information of the other Party to those employees, advisors, agents and other representatives who require access in order to perform its obligations under this Agreement.  Notwithstanding the foregoing, Receiving Party reserves the right to use or disclose Disclosing Party’s Confidential Information if required by law and/or to comply with a judicial proceeding, court order, or legal process; provided, however, that in each instance, to the extent legally permissible, Receiving Party shall provide Disclosing Party with prior written notice (which may be by email) of such compelled disclosure.

5.2. Security. Customer shall use commercially reasonable efforts to prevent unauthorized access to the Platform and shall employ security measures consistent with current best industry standards to adequately safeguard any Company Data downloaded to Customer’s systems.  Access to the Platform is password-controlled. Customer is responsible for maintaining the security of user passwords and will instruct its Users as to the importance of maintaining the confidentiality of passwords and/or user identifications. Further, Customer is solely responsible for determining whether or not to require its Users to utilize two-factor authentication or any other multi-factor authentication method as may be available in order to enable an additional layer of security beyond Company’s default security settings.  If Customer elects to use its own identity provider system (“IdP”) to authenticate its Users, Customer must periodically review and ensure proper security of such IdP at Customer’s sole expense.  Customer acknowledges that the security of its systems may be compromised if Users do not follow applicable security policies and procedures and take other appropriate steps to maintain the security of the Platform, including, without limitation, maintaining the confidentiality of user identifications and passwords, frequent changing of passwords and maintaining appropriate internal controls to monitor access to and use of the Platform.  If Customer becomes aware of the unauthorized use of a password or other security breach, Customer will promptly notify Company in writing.  Customer is responsible for enforcing its own internal information security governance framework with respect to its Users’ access to Customer’s account, including assigning roles and specifying access rights. Customer is further responsible for the identity management of its Users and must ensure that only authorized Users have access to the Customer’s account.  In the event that Customer grants Company access to Customer Data via any web portal or other non-public websites or extranet services on Customer’s or a third party’s website or system, Customer is responsible for information security governance in connection with such access, including the creation and management of user accounts and access rights.

5.3. Data Processing Terms.  The “Data Processing Terms” available at https://www.brandwatch.com/legal/data-protection-addendum/ shall govern to the extent applicable with respect to the protection of personal data processed in connection with this Agreement.  

6.1. Subscription Period.  Customer’s Subscription shall commence on the date specified on the Order Form and continue until the earlier of (a) expiration or non-renewal of all Subscription Periods, or (b) termination of this Agreement as more fully set forth below.

6.2. Auto-Renewal.  Except as otherwise specified on an Order Form, Subscriptions will automatically renew for additional periods equal to the expiring Subscription Period (i.e., on a monthly or annual basis depending on Customer’s Subscription), unless (a) for monthly Subscriptions, either Party gives the other written notice of non-renewal at any time before the end of the then-current monthly Subscription Period, or (b) for annual Subscriptions, either Party gives the other written notice of non-renewal  least thirty (30) days before the end of the then-current annual Subscription Period.  If expressly stated on an Order Form, the fees for each renewal period shall automatically increase in accordance with the terms set forth on such Order Form, unless (a) the pricing in the expiring Subscription Period was promotional or one-time; (b) Customer subscribes to different and/or additional services; or (c) unless otherwise agreed to by the Parties in an Order Form. Discounts may not carry over from year to year.

6.3. Termination for Breach. If either Party believes that the other Party has failed in any material respect to perform its obligations under this Agreement, then that Party may provide written notice to the breaching Party describing the alleged failure in reasonable detail. If a breach has occurred and if the breaching Party does not cure or begin to cure the material failure within thirty (30) days after receiving such written notice, then the non-breaching Party may terminate this Agreement immediately by written notice to the breaching Party. Termination of this Agreement will be in addition to, and not in lieu of, other remedies available to the terminating Party. Notwithstanding the foregoing, Company may terminate this Agreement immediately if Customer or any Users breach Section 2.2, Section 2.7, Section 5.1 or Section 5.2 of this Agreement.

6.4. Suspension. In addition to those conditions, rights, and remedies set forth in this Agreement, Company may suspend access to the Platform if, in Company’s reasonable determination: (a) payment cannot be completed via the Payment Method or Customer fails to pay an undisputed, overdue invoice within ten (10) days after Company gives Customer notice of such failure (which may be by email or telephone); (b) Customer’s use of the Platform or Company Data violates applicable local, state, federal, or foreign laws or regulations; (c) Customer fails to use the Platform in accordance with this Agreement, including violating Section 2.7 above; (d) Customer’s use of the Platform degrades performance of the Platform; or (e) there are repeated complaints of Customer posting or uploading material that infringes or is alleged to violate the intellectual property rights of any person or entity.  Company will provide notice (which may be by email) of such suspension; and when commercially possible, will work in good faith with Customer to help Customer resolve the issue causing the suspension so that access to the Platform may be restored.

6.5. Refund or Payment on Termination. If this Agreement is terminated by Customer in accordance with Section 6.3 above, Company will refund Customer any prepaid fees covering the remainder of the Subscription Periods of all applicable Order Forms after the effective date of termination. If this Agreement is terminated by Company in accordance with Section 6.3 above, Customer will pay any unpaid fees covering the remainder of the Subscription Periods of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees due or payable to Company for the period prior to the effective date of termination.

6.6. Effect of Termination. Upon any expiration or termination of this Agreement: (a) Customer’s right to use the Platform shall cease, and Company shall have no further obligation to make the Platform available to Customer; (b) except as otherwise expressly stated herein, all rights, licenses and/or access granted to Customer under this Agreement will immediately cease; (c) Customer shall return, delete or destroy any Company Data and shall certify in writing to Company that it has done so; and (d) Company will have no obligation to maintain or provide any Customer Data or other Company Data to Customer, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation or as Company routinely does such deletions and destructions in the ordinary course of its business (currently within fourteen [14] days following expiration of termination), unless legally prohibited from doing so.

6.7. Survival.  All provisions of this Agreement relating to disclaimers of warranties, remedies, damages, confidentiality, payment obligations, restrictions on use, and any other terms that either expressly or by their nature should survive, shall survive any termination of this Agreement, and shall continue in full force and effect.

7.1. Mutual Representations.  Each Party represents that each individual entering into this Agreement has full authority to bind the respective Party to this Agreement.  Each Party further represents that (a) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement and (b) it shall comply fully with all applicable laws (including, without limitation, [i] export laws and regulations relating to use of the Platform in its place of business and [ii] privacy laws and regulations [e.g., the GDPR, the California Consumer Privacy Act, etc.]), regardless of country or jurisdiction.  

7.2. Customer Representations & Warranties.  Customer represents and warrants that (a) Customer understands that the Subscription is being provided on a business-to-business (B2B) basis (i.e., for business use), as opposed to a business-to-consumer basis (B2C) (i.e., for personal use as an individual consumer) (b) the information provided in registering for Customer’s Subscription is accurate, complete and rightfully Customer’s to use, (c) it has valid title or license to all Customer Data, (d) it has all rights necessary to grant Company the rights set forth in this Agreement, and (e) that Customer Data will not contain any content that is obscene, libelous, slanderous or otherwise defamatory, false or misleading or that violates any copyright, right of privacy or publicity or other right of any person or party. 

7.3. Company Warranties.  Company warrants that the Platform will (a) under normal conditions of use, perform materially in accordance with the applicable Documentation and (b) be available to Customer on an average of at least 99.5% of a calendar year, not including any downtime due to planned or critical updates to the Platform.  

7.4. Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM IS OFFERED “AS IS.”  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE (INCLUDING NON-INFRINGEMENT), AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM COMPANY OR THROUGH THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.  UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES.  

8.1. Indemnification by Company. Company will defend any Covered Parties of Customer (“Customer Covered Parties”) against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Platform infringes or misappropriates such third party’s intellectual property rights under the laws of the United States or Denmark (a “Claim Against Customer”), and will indemnify Customer Covered Parties from any damages, attorney fees and costs finally awarded against Customer Covered Parties as a result of, or for amounts paid by Customer Covered Parties under a court-approved settlement of a Claim Against Customer. Company’s indemnification obligation does not cover third party claims arising from: (a) modifications to the Platform by anyone other than Company or its authorized agents and contractors; (b) use of the Platform by Customer in combination with other software or equipment not recommended by Company where the Platform, but for such combination, would not be infringing; or (c) Customer’s failure to use the Platform in accordance with the terms and conditions of this Agreement. If a claim regarding the Platform and alleging infringement is brought or is likely, in Company’s sole opinion, to be brought, Company may, at its option and expense (x) obtain the right for Customer to continue using the Platform; (y) replace or modify the Platform so that it becomes non-infringing; or (z) upon notice to Customer, terminate this Agreement or Customer’s use of the Platform or any portion thereof, provided that Company promptly refunds to Customer the prorated portion of any pre-paid annual subscription fees paid hereunder for the Platform. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer Data, Company Data, or Customer’s breach of this Agreement.

8.2. Indemnification by Customer. Customer will defend any Covered Parties of Company (“Company Covered Parties”) against any claim, demand, suit or proceeding made or brought against such Company Covered Parties by a third party alleging that the Customer Data, or Customer’s use of any Platform or Company Data in breach of this Agreement, infringes or misappropriates such third party’s intellectual property, proprietary or personality rights or violates applicable law, including violation of privacy or spamming laws or regulations (a “Claim Against Company”), and will indemnify Company Covered Parties from any damages, attorney fees and costs finally awarded against Company Covered Parties as a result of, or for any amounts paid by Company Covered Parties under a court-approved settlement of a Claim Against Company.

8.3. Indemnification Requirements. Indemnification by a Party is conditioned upon the following: (a) the indemnitee promptly notifying the other Party of any claim; (b) the indemnitor having sole control of the defense and all related settlement negotiations; and (c) the indemnitee cooperating, at the indemnitor’s expense, in the defense and furnishing the indemnitor with all related evidence in its control.

8.4. Exclusive Remedy. This Section 8 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this section.

9.1. Exclusion of Damages.  IN NO EVENT WILL EITHER PARTY OR ANY OF THEIR DIRECTORS, AGENTS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR (A) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD-PARTY CLAIMS COVERED BY SECTION 8); OR (B) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, HOWSOEVER ARISING, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

9.2. Limitation of Liability. EXCEPT FOR A MATERIAL BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 5 OR CLAIMS RELATED TO PERSONAL INJURY OR PROPERTY DAMAGE CAUSED SOLELY BY COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO CUSTOMER’S ACTUAL, AWARDED DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE.

10.1. Contracting Entity.  Unless otherwise indicated on an Order Form, (a) if Customer is based in the Americas, Customer is entering into this Agreement with Falcon.io US, Inc., and (b) if Customer is based in any territory other than the Americas, Customer is entering into this Agreement with Falcon.io ApS.  

10.2. Governing Law & Jurisdiction.  The Parties agree that (a) this Agreement and any disputes arising out of or related hereto, will be governed exclusively by the laws specified in the table below for the applicable Company contracting entity, (b) any suit hereunder will be brought in the courts of the region specified in the table below for the applicable Company contracting entity, and the Parties submit to the personal jurisdiction thereof, and (c) the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  

10.3. Disputes.  Customer and Company agree that in the event of litigation, the prevailing Party shall have the right to collect from the other Party its reasonable costs and attorneys’ fees.  Except for actions for non-payment, breach of confidentiality, or indemnities under Section 8, no action, regardless of form, arising out of or related to this Agreement may be brought by either Party more than two (2) years after the accrual of the cause of action.

11.1. Export Compliance. The Platform and Company Data and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Company and Customer each represents that it is not named on any U.S. government denied-party list.  Customer will not permit any User to access or use any Platform or Company Data in a U.S.-embargoed country or in violation of any export law or regulation.

11.2. OFAC. Customer represents and warrants that neither it nor any of its employees is a person or entity with whom U.S. entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order or other governmental action.

11.3. Government Customers. If Customer is the U.S. Government or any agency or instrumentality thereof, then any software provided pursuant to this Agreement is delivered with RESTRICTED RIGHTS only. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR 52.227-19 Commercial Computer Software—Restricted Rights or DFAR 252.227-7013 Rights in Technical Data and Computer Software.

11.4. Anti-Corruption & Business Conduct. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify Company’s Legal Department at [email protected].  Further, as a company within the Cision group, Company shall comply exclusively with the codes and policies applicable to such group, available at https://investors.cision.com/governance-documents. 

11.5. Force Majeure. Except for Customer’s obligation to pay for access to the Platform that Customer has already obtained, neither Party will be responsible for failure to perform contractual duties caused by events beyond such Party’s reasonable control, including but not limited to: (a) failures of utility services or transportation networks; (b) acts of public enemies; (c) terrorism; (d) war; (e) insurrection or riot; (f) natural disasters; (g) a serious accident, strike, labor trouble, or work interruption; (h) compliance with any newly-enacted applicable law; or (i) any other events beyond a Party’s reasonable control; provided, however, the affected Party provides the other with prompt notice thereof (which may be by email) and uses commercially reasonable efforts to promptly resume performance.

11.6. Relationship of the Parties. The Parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Parties.

11.7. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

11.8. Assignment. Customer may not assign this Agreement without Company’s written consent, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.

11.9 Notices. All notices must be in writing and addressed to the other Party’s legal department and primary point of contact. The email address for notices being sent to Company’s legal department is [email protected]. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).  Notices to Customer other than notices of material breach of the Agreement, may also be sent via the Platform or to any email address provided by Customer in connection with Customer’s account.  E-mails sent to DO-NOT-REPLY e-mail addresses, or e-mail addresses prompting a MAILER DAEMON/BOUNCE message, are not considered valid notices.   

11.10. Waiver. No failure or delay by either Party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If either Party waives any right, power or remedy, such waiver will not waive any successive or other right, power or remedy the Party may have under this Agreement.

11.11. Severability. The provisions of this Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the Parties shall substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the Parties.

11.12 Prevailing Language.  The English-language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any. 

11.13. Amendments.  Company may revise these Terms (including any terms or documents incorporated by reference in these Terms) from time to time, in its sole discretion, by posting the revised Terms at the link provided on the applicable Order Form, and the continued use of the Platform after the effective date of the updated Terms shall constitute acceptance of the updated Terms. The updated Terms will be effective as of the time of posting, or on such later date as may be specified in the updated Terms, and will apply to use of the Platform from that point forward.  Except for revisions by Company as set forth in this Section 11.13, this Agreement may be modified only by a writing signed by both Parties.    

11.14. Entire Agreement. This Agreement represents the entire agreement between Customer and Company with respect to the subject matter, superseding all previous or contemporaneous oral or written communications, representations, or agreements or proposals, including but not limited to any Customer-issued purchase order or other Customer-issued order documentation (collectively, the “Customer Purchasing Documents”), and Customer acknowledges that it has not relied on any representation that is not expressly set forth in this Agreement.  The Parties further expressly acknowledge and agree that any term or condition stated in any Customer Purchasing Documents is void, even if (a) submitted following the execution of this Agreement, (b) expressly stating otherwise, (c) Company accepts or does not otherwise reject the Customer Purchasing Documents, (d) Company accepts payment hereunder and/or (e) Company performs its obligations hereunder.  For clarity, acceptance of this Agreement is expressly limited to the terms set forth herein and any additional or different terms contained in any Customer Purchasing Documents are rejected by Company.  In the event of any conflict or inconsistency within the Agreement, the order of precedence shall be: (a) the applicable Order Form, (b) these Terms and (c) the Documentation.