NewsWhip Terms and Conditions
Last Modified: January 20, 2020
These terms of service (“Terms”) constitute a contract between you and NewsWhip (as defined below) (collectively “NewsWhip”, “we” or “us”) each “a party”, together “the parties” and govern use of and access to the service and site by you and your agents.
Please review these Terms carefully. By accessing or using the Services offered by NewsWhip, you are confirming that you have read, understand and accept these Terms. These Terms can be updated from time to time. You are responsible for regularly reviewing the most current version of these Terms, which are published at https://www.newswhip.com/newswhip-terms-conditions/. We will notify you of any changes that, in our sole discretion, materially impact this Agreement. Your continued use of the Services after any changes have been made to these Terms will constitute you consent to such changes. We will update the “Last Modified” date above when any changes are made. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
The Services are provided as “Software as a Service (SaaS)” subscription services and we will not be delivering copies of software to you as part of the Services.
If you are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to the Terms for that Entity and you are representing to NewsWhip that you have the authority to bind such Entity and its Affiliates to the Agreement, in which case the terms “you,” “your”, “Client” or related terms herein shall refer to such Entity and its Affiliates and you confirm that you are responsible for anyone that uses our Services through your account, such as your employees, consultants or contractors (“Authorized Users”).
When used in these Terms with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
1.1. Account: means any accounts created by or on behalf of you or your Agents for the provision of the Service.
1.2. Account Holder: means you or the individual authorised by you to carry out administration on your Account including but not limited to payment.
1.3. Affiliate(s): means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person or Entity, whether through the ownership of voting securities, by contract, or otherwise.
1.4. Agent: means an individual authorized to use the Service through your Account.
1.5 API: means the application programming interface developed and enabled by NewsWhip that permits you to access certain data provided by the Service, including without limitation, the POST API and GET API. API documentation can be found at http://docs.newswhip.com/?shell#overview.
1.6. Change of Control: means the sale of all or substantially all the assets of a Party; any merger, consolidation or acquisition of a Party with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of a Party in one or more related transactions
1.7. Chrome Extension: means a plugin for the Google Chrome web browser which may be obtained from Google Chrome webstore and is provided by NewsWhip;
1.8. Confidential Information: means information disclosed under this Agreement that is marked confidential or would reasonably be considered confidential under the circumstances; and excludes any information that (i) is or becomes public, through no fault of Recipient; (ii) was rightfully acquired by or already known to Recipient without an existing confidentiality obligation; or (iii) is independently developed by Recipient.
1.9. NewsWhip means NewsWhip Media Limited, its subsidiaries (NewsWhip US Inc.) successors and assigns.
1.10. Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
1.11. NewsWhip Group: means NewsWhip Media Limited and/or NewsWhip US Inc.
1.12. Personal Data: has the meaning ascribed to it under the EU General Data Protection Regulation 2016/679 and means any information relating to an identified or identifiable natural person;
1.13. Renewal Date: means the date on which this Agreement between you and NewsWhip renews and next Subscription Term commences.
1.14. Reports: any reports or similar outputs taken from use of the Services
1.15. Service(s): means any service provided by NewsWhip including but not limited to NewsWhip Products including NewsWhip Spike, NewsWhip Analytics, NewsWhip Syndication, APIs, the NewsWhip Google Chrome Extension and the NewsWhip Google Sheets Extension. Service Data has a consistent meaning and means all data received by you or your Agents via the Service.
1.16. Site: means www.newswhip.com, as well as any other websites that the NewsWhip Group operates.
1.17. Subscription(s): means the packaged service plan(s) and the functionality and services associated therewith for the Service, as applicable, to which you subscribe.
1.18. Subscription Term: means the period for which you have agreed to subscribe to the Service. The Subscription Term shall exist from the first day of the applicable Subscription Term until the Renewal Date or until such time as this Agreement is terminated in accordance with Section 6 of this Agreement, whichever is the earlier.
1.19. Third-Party Sources: are services that are not provided by NewsWhip but that you may access or use in connection with our Service. They include the social network websites and platforms, which are the supported by our Services (including but not limited to as Twitter, YouTube, Facebook, SnapChat and Instagram).
2. Licence From NewsWhip
2.1. NewsWhip gives you a worldwide, royalty-free, non-assignable and non-exclusive right and licence to access and use the Services, on a subscription basis, for the Subscription Term and in the scope designated by the Terms. Further, NewsWhip gives you a worldwide, royalty-free, perpetual and non-exclusive right and licence to access and use, reproduce, display, distribute, and create derivative works of, any Reports that you generate through your use of the Services. The licence granted in this Section 2.1 is for the sole purpose of enabling you to use and enjoy the benefit of the Services, in the manner permitted by the Agreement. You acknowledge that this is a Software as a Service (“SaaS”) agreement and that (i) the Software is not sold, and (ii) we will not be delivering copies of any software to you as part of the Services.
2.2. You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software underlying the Service or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by NewsWhip in writing.
2.3. You may not access and/or use the Service and the underlying Software in order to build a similar or competitive product. You further may not (and you may not permit anyone else to) attempt to gain unauthorized access to the Services, its particular features or third-party content, interfere with or disrupt the integrity or performance of the Services or third-party content contained therein or perform penetration test, denial of service simulation or automated vulnerability scan of the Services.
2.4. Unless NewsWhip has given you specific written permission to do so, you may not assign (or grant a sub-licence of) your rights, grant a security interest in or over your rights, or otherwise transfer any part of your rights granted hereunder.
2.5. You acknowledge that any breach of Section 2 by you or your users shall constitute a material breach of the Terms in accordance with Section 7.2(a).
3. General Conditions: Access to and Use of the Service
3.1. NewsWhip agrees to supply the Services to you for the Term in accordance with the terms of this Agreement and you agree to the following:
3.1.1. to use the Services only for purposes that are permitted by (A) this Agreement; (B) any applicable law, regulation, generally accepted practices, or guidelines in the relevant jurisdictions;
3.1.2. you will not provide access to the Services to any third party unless NewsWhip has given express consent;
3.1.3. you will not use or access the Services in any other way such as by using robots, spiders, crawlers and scraping technologies unless by express consent is obtained;
3.1.4. you are responsible for any and all activities that occur under your account and for compliance with these Terms;
3.1.5. NewsWhip may amend the Services by changing, adding or removing features. We may or may not provide notice of those changes to you;
3.1.6. NewsWhip may temporarily suspend your access to and use of the Services (a) for upgrades and/or maintenance to the Services; (b) during any unavailability caused by circumstances beyond our reasonable control; (c) if we suspect or detect any malicious software connected to your Account;
3.1.7. some of the features and functionality of the Services are enabled through interactions with and links to Third Party Sources. If at any time, a Third-Party Source stops making some or all of its features and functionality available to NewsWhip or available on terms acceptable to NewsWhip then NewsWhip may stop providing access to such features or functionality without prior notice;
3.2. NewsWhip Services may not be used by governments, governments, or private agents acting on behalf of governments or government agencies, to collect any Service Data that may be used to identify or monitor a private individual. For the avoidance of doubt, NewsWhip Services may not be used directly or indirectly as part of any surveillance, intelligence gathering, policing, or law enforcement processes.
3.3. You understand and accept that each Third-Party Source may have terms of service which are independent of NewsWhip. NewsWhip does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third-Party Source that may be accessed via the Services and you agree that you bear all risks associated with access to and use of content provided by a Third-Party Source;
3.4. Some service data is derived from information gathered from third party sources when using service data derived from third party sources, you agree to comply with terms of service required by those third party services. In particular you agree to the following limitations:
3.4.1. Facebook – You agree that Service Data derived from Facebook may not be sold or used for: unlawful, misleading, discriminatory, or fraudulent purposes; to infringe or breach someone else’s rights; to build profiles of, or to identify individual human users of Facebook; to map the behaviour and engagement of individual human users of Facebook across multiple Facebook pages; for surveillance purposes. Furthermore, you agree to maintain diligent safeguards over any private data, compliant with any applicable data privacy laws.
3.4.2. Twitter – If you are a public-sector entity, you must not use Service Data derived from Twitter to access or use content from Twitter for surveillance purposes or if you are a public-sector entity whose primary function includes conducting surveillance/gathering intelligence, you must not use the Services to access or use content from Twitter. In addition, you must not use the Services to access or use content from Twitter for any unlawful, discriminatory purposes or profiling based on sensitive categories of information prohibited by applicable laws (see Section VII.A. User Protection of the Twitter Developer Agreement https://developer.twitter.com/en/developer-terms/agreement)
4. Data Privacy and Security; Confidentiality
4.1. Subject to the express permissions of these Terms, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information (a) solely to those of our respective employees, representatives, subcontractors and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.
4.3. You agree that NewsWhip and the service providers that we use to assist in providing the Service shall have the right to access your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Service, including, without limitation, to respond to your support requests. Any such service providers we utilize will only be given access to your Account, Service Data, or Personal Data as is reasonably necessary to provide the Service and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.1 and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.2.
5. Intellectual Property Rights
5.1. NewsWhip owns and retains all right, title and interest in and to (a) the Services together with any / all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with training or support, and (c) all intellectual property rights related to any of the foregoing and you agree not to do anything inconsistent with this ownership.
5.2. Each Party maintains all rights, title and interest in and to all their respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). Nothing in this Agreement shall be interpreted so as to convey any additional interest in the Services, or any associated Intellectual Property Rights to you.
5.3. NewsWhip will have the right to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, your Agents, or other third parties acting on your behalf.
5.4. NewsWhip may use your company’s name and/or logo on our website and other marketing materials identifying you as one of our users. No endorsement or affiliation is implied and your trademarks and copyrights remain your property.
6. Billing, Plan Modifications and Payments
6.1. You must pay all fees on time in accordance with the Product Order Form.
6.2. If you upgrade your subscription or purchase additional Services then additional fees may be payable. If you cancel or downgrade your Subscription prior to the Renewal Date you must continue to pay the fees for the remaining period of the term and you will not receive a refund.
6.3. Any failure to pay your fees on time or to keep your payment information accurate may result in suspension and / or termination of your access to the Services. This will not constitute a waiver by NewsWhip of any fees still due and owing for the remaining period of the Subscription Term. Late payments will accrue interest on a monthly basis at a rate determined by reference to the LIBOR rate on that date plus five per cent (5%).
6.4. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against NewsWhip based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so and you agree to pay such Taxes if so invoiced.
7. Cancellation and Termination
7.1. Either Party may elect to terminate your Subscription / Account to the Services at the end of the then current Subscription Term by providing notice at least (30) days prior to the final day of your then current Term. If you do not terminate your Account in accordance with this Section your Subscription to the Service (including any and all additional Services) will renew for a further Subscription Term equivalent in length to the then expiring Subscription Term and the same terms will apply.
7.2. We reserve the right to modify, suspend or terminate your and your Agents’ rights to access the Services (or any part thereof and we may remove, disable and discard any Service Data if (a) we believe that you or your Agents have misused the Services or breached the Agreement; (b) you fail to adhere to the payment terms under this Agreement and fail to pay any amount due and owing under the Agreement on time; (c) you become insolvent, bankrupt, or enter receivership, dissolution or liquidation in any jurisdiction; or (d) you undergo a Change of Control in your business. Unless legally prohibited from doing so, we will use reasonable efforts to contact you via email to notify you when taking any of the foregoing actions. We shall not be liable to you, your Agents, or any other third party for any such modification, suspension or termination of access to and use of the Service.
7.3. Upon cancellation or termination of your Subscription you must immediately pay any outstanding fees associated with the remainder of your Subscription Term. Outstanding fees will not be payable where you cancel your Account as a result of a material breach of these Terms by NewsWhip, provided that you provide advance notice of such breach to NewsWhip and provide NewsWhip with not less than thirty (30) days to reasonably cure such breach.
7.4. Upon termination or cancellation of your Subscription to the Service, NewsWhip reserves the right to delete all Service Data associated with your Account. This Service Data cannot be recovered.
8. Disclaimer or Warranties
8.1. The site and the service, including all server and network components are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and we expressly disclaim any and all warranties (including warranties to the content, data, links, and information presented within the service), whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that we do not warrant that the service will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software, and no information or advice obtained by you from us or through the Services shall create any warranty not expressly stated in these terms.
9. Limitation of Liability
9.1. Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to these terms, or their affiliates, officers, directors, employees, agents, suppliers or licensors be liable to the other party or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, lost data, business interruption or any other loss incurred by such party or third party in connection with these terms or the service, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.
9.2. The Services do not provide any licence, copyright or permissions for you to use content owned by Third Party Sources which may be accessed through the Services and which may be subject to copyright protection by third parties. NewsWhip shall not be held liable for any claims by third parties arising from your use of the content accessed through links within the Services, such as alleged copyright/intellectual property infringement arising from your use of content identified through the Services.
9.3. Notwithstanding anything to the contrary in these terms, our aggregate liability to you or any third party arising out of these terms or otherwise in connection with any subscription to, or use or employment of the service, shall in no event exceed the subscription charges for such service paid by you during the twelve (12) months prior to the first event or occurrence giving rise to such liability. You acknowledge and agree that the essential purpose of this section is to allocate the risks under these terms between the parties and limit potential liability given the subscription charges, which could be substantially higher if we were to assume any further liability other than as set forth herein. We have relied on these limitations in determining whether to provide you the rights to access and use the service provided for in these terms.
9.4. Any claims or damages that you may have against NewsWhip shall only be enforceable against NewsWhip and not any other entity nor NewsWhip’s officers, directors, representatives or agents.
10.1. We will indemnify and hold you harmless, from and against any claim brought by a third party alleging that the Service infringes or misappropriates a third party’s valid patent, trade mark or trade secret (an “IP Claim”). This indemnification provision is limited to an IP Claims relating to the Services itself, and does not indemnify you in relation to your use of any information or data obtained by you through the Services. We shall, at our expense, defend such covered IP Claims and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by NewsWhip for such defence, provided that (a) you promptly notify NewsWhip of the threat or notice of such an IP Claim; (b) we will have the sole and exclusive control and authority to select defence attorneys, defend and/or settle any such IP Claim; and (c) you agree to fully cooperate with NewsWhip in connection therewith. The provisions of this section amount to the sole, exclusive and entire liability of NewsWhip to you and constitute your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by you or your Agents.
10.2. You will indemnify and hold NewsWhip harmless against any claim brought by a third party against NewsWhip arising from or related to (a) use of the Service by you or your Agents in breach of these Terms, (b) your internal and external use of the data and information received from the NewsWhip Services, (c) your use of third party data retrieved through links within the Service, (d) any negligence or willful misconduct by you; or (e) matters which you have expressly agreed to be responsible pursuant to these Terms.
11. Assignment; Entire Agreement; Amendment
11.1. You may not, directly or indirectly, by operation of law or otherwise, assign all or any of your rights or duties under the Agreement without our prior consent, such consent not to be unreasonably withheld. We may, without your consent, assign the Agreement to any member of the NewsWhip Group or to any successor in title in connection with any Change of Control of NewsWhip or the sale of all or substantially all of our assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
11.2. This Agreement shall supersede any and all prior agreements between you and NewsWhip with regard to the subject matter hereof unless otherwise agreed by both parties.
11.3. This Agreement shall take precedence over any purchase order or other order documentation you may provide even if signed by the parties after the date hereof, and, except as expressly stated herein, no other agreements, representations or warranties may be relied upon by either party with respect to the subject matter hereof.
11.4. You acknowledge that any subsequent purchase of additional Newswhip products or services (“Additional Services”) may result in you being subject to additional terms (“Additional Terms”). Your resulting use of these Additional Services will be considered acceptance of the Additional Terms and their incorporation into this Agreement. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
12.1. If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
13. Export Compliance and Use Restrictions
13.1. The Service and any other components of the Service that we may provide or make available to you or your Agents may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service and such other components by you and your Agents. You shall not access or use the Services if you are located in any jurisdiction in which the provision of the Services or other components is prohibited under applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) you are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you shall not permit Agents to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; (d) you shall comply with all applicable laws regarding the transmission of technical data exported from the United States and/or the EU and the country in which you, Agents and End-Users are located.
14.1. The obligations of both parties under this Agreement shall survive its termination to the extent necessary to give effect to this Agreement. Termination of such agreement shall not limit you or NewsWhip’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
15.1. All notices to be provided by NewsWhip to you under this Agreement may be delivered in writing (a) by courier or registered mail to the contact mailing address provided by you on the Order Form; or (b) electronic mail to the electronic mail address provided on the Order Form. You must give notice to NewsWhip in writing by courier or registered mail to (a) the applicable address in Section 15.1; or (b) electronic mail to the electronic mail: email@example.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a courier as permitted above.
16. Dispute Resolution
16.1. If you are subscribing to any NewsWhip Service and you are located within the United States your contract is with NewsWhip US, Inc. All notices should be addressed to NewsWhip US Inc., Attn: Legal Department, 25 Broadway, New York, NY 10004. This Agreement shall be governed by, construed, and interpreted in accordance with the laws of the State of New York, without regard to principles of conflict of laws. Any dispute, controversy or claim dispute arising out of or related relating to this Agreement or any breach of this Agreement shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by the American Arbitration Association (AAA) and shall be conducted in accordance with the Commercial Arbitration Rules of the AAA. The number of Arbitrators shall be one. The results of such arbitration proceedings shall be binding upon the parties and judgment may be entered upon the arbitration award in any court having jurisdiction thereof. The seat of the arbitration shall be in New York. The language of the arbitration shall be English.
16.2. If you are subscribing to any NewsWhip Service and you are NOT located within the United States your contract is with NewsWhip Media Limited. All notices should be addressed to: NewsWhip Media Ltd., Attn: Legal Department, 47 Merrion Square, Dublin 2, Ireland. This Agreement shall be governed by, construed, and interpreted in accordance with the laws of Ireland, without regard to principles of conflict of laws. Any dispute, controversy or claim dispute arising out of or related relating to this Agreement or any breach of this Agreement shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by the International Centre for Dispute Resolution and shall be conducted in accordance with the International Arbitration Rules of the American Arbitration Centre. The number of Arbitrators shall be one. The results of such arbitration proceedings shall be binding upon the parties and judgment may be entered upon the arbitration award in any court having jurisdiction thereof. The seat of the arbitration shall be in Dublin, Ireland. The language of the arbitration shall be English.
16.3. You agree that if you sue NewsWhip and do not obtain judgment in your favor, you will pay all of NewsWhip’s costs, including reasonable fees for in-house and outside legal counsel.
17. NewsWhip Data Processing Addendum
This EU Data Processing Addendum (the “Addendum”) is entered into between NewsWhip Media Ltd., and its subsidiaries and affiliates (including but not limited to NewsWhip US, Inc.) with address at 47 Merrion Square, Dublin 2, Ireland (“NewsWhip”) and the party identified as the Customer in the relevant NewsWhip Licensing Order Form and Agreement (the “Customer”). This Addendum shall form part of the agreement executed between NewsWhip and the Customer governing the services provided by Customer (the “Agreement”). This Addendum applies to the personal data received by NewsWhip from or on behalf of the Customer in connection with the performance of the services under the Agreement including the personal data set out in Schedule 1 (“Customer Personal Data”).
The following definitions apply in this Addendum (unless the context requires otherwise):
- “Data Protection Legislation” means the Data Protection Acts 1988 and 2018 (as may be amended from time to time), and as of 25 May 2018, the General Data Protection Regulation (EU) 2016/679 (the “GDPR”);
- “Security Breach” the accidental or unlawful destruction, loss, alternation, unauthorised disclosure or, or access to the Customer Personal Data;
- “Services” has the meaning ascribed to it in the Agreement or, in the absence of any defined term in the Agreement, shall mean the services provided by NewsWhip to the Customer in the manner contemplated by and in accordance with the terms of the Agreement; and
- “controller”, “data subject”, “personal data”, “processing”, “processor” and “supervisory authority” shall have the meanings given to those terms in the GDPR.
The following rules of interpretation apply in this Addendum (unless the context requires otherwise):
- a reference to this Addendum includes its schedules;
- words in the singular include the plural and vice versa;
- any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed without limitation;
- clause, schedule or other headings in this Addendum are included for convenience only and shall have no effect on the interpretation of this Addendum;
- a reference to any statute, statutory provision, rule, regulation or any requirement shall be construed as including references to it as modified, consolidated, re-enacted or superseded from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision;
- a reference to any regulator or regulatory board shall include a reference to any replacement or successor bodies from time to time; and
- in the case of conflict or ambiguity between the terms of this Addendum and the terms of the Agreement as to the subject matter of this Addendum, the terms of this Addendum shall prevail.
17.3. Data Processing
In respect of any Customer Personal Data processed by NewsWhip under this Addendum, the Parties acknowledge that the Customer shall be the controller and NewsWhip shall be a processor.
17.4. Customer Obligation
Customer, as the controller or primary processor (as applicable), is solely responsible for establishing the lawful basis for the processing of Customer Personal Data by NewsWhip under this Addendum and will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to NewsWhip for the duration and purposes of this Addendum. Customer, as the controller, is further solely responsible for the accuracy and quality of the Customer Personal Data.
17.5. NewsWhip Obligations
To the extent that NewsWhip processes Customer Personal Data pursuant to this Addendum, NewsWhip shall:
- process the Customer Personal Data in accordance with the terms of the Agreement and the instructions of the Customer (unless NewsWhip is required to process the Customer Personal Data by applicable European Union (“EU”) or EU Member State law in which case NewsWhip shall notify the Customer of that legal requirement before such transfer or access occurs or is permitted, unless that law prohibits such notification on important grounds of public interest);
- ensure that all personnel authorised to process the Customer Personal Data are party to confidentiality obligations in respect of the Customer Personal Data;
- cooperate as reasonably requested by the Customer (at the Customer’s sole expense):
- to enable the Customer to comply with any exercise of rights by a data subject under the Data Protection Legislation in respect of Customer Personal Data; and
- where the Customer conducts a data protection impact assessment;
- notify the Customer if NewsWhip receives a request from a data subject to have access to that data subject’s personal data. NewsWhip shall not respond directly to such data subject unless it is instructed to do so by the Customer;
- implement and maintain appropriate technical and organisational measures in place to ensure the security of the Customer Personal Data taking into account:
- the state of the art;
- the costs of implementation;
- the nature, scope, context and purposes of the processing; and
- the inherent risk of the processing activities to data subjects;
- notify the Customer without undue delay after becoming aware of any Security Breach; and
- cooperate with the Data Protection Commission (or, to the extent reasonably required by the Customer, any other supervisory authority) in the performance of its tasks where required.
17.6. International Transfers
The Customer hereby agrees to the transfer of Customer Personal Data processed under this Addendum outside of the EU PROVIDED that in effecting any international transfer of Customer Personal Data, NewsWhip shall ensure that:
- it has provided appropriate safeguards in relation to the transfer which may include Privacy Shield certification (in the case of US transferees) or EU standard contractual clauses. The Customer hereby appoints NewsWhip as its agent for the purpose of entering into any EU standard contractual clauses in the context of providing the Services; and
- data subjects continue to have enforceable rights and effective legal remedies following the transfer.
The Customer hereby authorises NewsWhip to use third parties (“sub-processors”) to provide the Services provided:
- NewsWhip shall notify the Customer in advance of any proposed use of a sub-processor, and any replacement or addition to them and the Customer shall have the right to object on reasonable grounds to the use of or change to any sub-processor within 14 days of Customer notifying the Customer of the change. In the event of the Customer raising such an objection, NewsWhip may terminate part or all of the Agreement on 14 days’ notice;
- in engaging any sub-processor NewsWhip agrees adequate data protection arrangements that are in all material respects similar to those set out in this Addendum; and
- NewsWhip shall at all times remain liable for the acts and omissions of any sub-processor as if such acts and omissions were those of NewsWhip.
For the purpose of this Addendum, the Customer consents to the use of the sub-processors listed at Schedule 2.
NewsWhip shall make available all information reasonably requested by the Customer to satisfy itself that NewsWhip is complying with its data protection obligations under this Addendum. Customer (and its third-party representatives) shall be permitted to audit NewsWhip’s premises, systems, and facilities during normal business hours PROVIDED THAT:
- Customer shall provide at least 14 days’ prior written notice of its intention to carry out an audit;
- Customer shall ensure (and shall procure that each of its representatives) minimise the disruption to NewsWhip’s business in the course of such an audit or inspection;
- all expenses incurred by NewsWhip shall be promptly discharged by Customer;
- NewsWhip may request that any third party representative performing an audit on behalf of Customer shall provide written confidentiality undertakings to the reasonable satisfaction of NewsWhip and NewsWhip shall be entitled to refuse access to any of its premises or records until such time as it has received such undertakings;
- NewsWhip need not contribute or allow for an inspection or audit more than once in any calendar year, except for any additional audits or inspections which are required or requested be carried out in connection with the Data Protection Laws or a supervisory authority;
- NewsWhip may object in writing to an auditor or representative mandated by the Customer if the auditor or representative is, in NewsWhip’s reasonable opinion, not suitably qualified or independent, a competitor of NewsWhip, or otherwise manifestly unsuitable (in the event of such an objection, the Customer shall appoint another auditor or conduct the audit itself); and
- nothing in this Addendum shall entitle Customer to access or inspect any records which contain information relating to any other Customer or customer of NewsWhip and NewsWhip shall be entitled to restrict or prevent access to any part of its premises which it considers in its sole discretion could compromise the security of any information or data relating to such other Customers or customers.
NewsWhip will inform Customer if it comes to its attention that any instructions received in respect of this clause 8 infringe the provisions of any applicable EU or EU Member State data protection law. Notwithstanding the foregoing, NewsWhip shall have no obligation to review the lawfulness of any instruction received from Customer.
17.9. Term and Termination
This Addendum shall be effective as and from the Effective Date and shall remain in force until such time as the Agreement is terminated. Following termination of this Addendum, NewsWhip shall, at the written request and at the cost of the Customer, delete or return Customer Personal Data and copies thereof to the Customer save to the extent that NewsWhip is required by applicable law to retain the Customer Personal Data.
The general provisions listed in this clause 10 apply to this Addendum (unless the context requires otherwise).
- Any notice or other communication required to be given to a party under or in connection with this Addendum shall be in writing and shall be delivered by email only to the address set out at the end of this Addendum. Any notice or communication shall be deemed to have been received the first working day after the time of transmission
- The parties’ respective aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any and all claims arising out of or in connection with this Addendum shall be as set out in the Agreement.
- Customer shall not assign or deal in any other manner with any of its rights and obligations under this Addendum without the prior written consent of the NewsWhip (which is not to be unreasonably withheld or delayed).
- No failure or delay by a party to exercise any right or remedy provided under this Addendum or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- This Addendum, together with the Agreement, represents the entire agreement between the parties with respect to its subject matter. Each party confirms that it has not relied upon any representations not recorded in this document inducing it to enter into this Addendum. No variation of these terms and conditions will be valid unless confirmed in writing by authorised signatories of each of the parties on or after the date of this Addendum.
- No variation of this Addendum shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- If any provision or part-provision of this Addendum is or becomes invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. If such amendment is not possible, the relevant provision or part-provision shall be deemed deleted. Any amendment to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Addendum.
- Nothing in this Addendum is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided herein.
- This Addendum may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Transmission of an executed counterpart of this agreement by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this Addendum.
- This Addendum and all disputes arising from this Addendum whether contractual or non-contractual in nature shall be governed by and construed in accordance with the laws of Ireland. The parties irrevocably submit to the exclusive jurisdiction of the Irish courts in relation to all matters arising out of or in connection with this Addendum.
The parties hereby agree that this Addendum supersedes any conflicting or inconsistent provisions in the Agreement related to data protection and, in any event of ambiguity, this Addendum will prevail. The Agreement, as amended and modified by this Addendum, otherwise remains in full force and effect.
Schedule 1- Personal Data1
The personal data transferred concern the following categories of data (please specify):
- Personal master data (including but not limited to name, address, title, company)
- Contact details (including but not limited to telephone number, mobile phone number, email address, fax number, business addresses, shipping address)
Schedule 2 — List of Sub-Processors ²
|Name||Processing||Description of Analysis|
|Gmail||Internal and external communications|
|Dropbox||Files including personal information||Storage of NewsWhip files|
|Slack||Files including personal information||Internal communications|
|Google Analytics||Usage Data including personal information||Site usage analytics|
|Intercom||Usage Data and personal information||Internal and external communications, client account lookups and servicing|
|G Suite / Google||Spreadsheets and Word processing documents that may contain personal information||Internal and external file sharing|
|Marketo||Usage Data||Marketing communications and analytics|
|SumoMe||Usage Data||Marketing communications and analytics|
|Mailchimp||Names, email addresses, company names||Marketing communications|
|Yesware||Names, email addresses and similar personal information||Email analytics|
|Salesforce||Names, email addresses, addresses and similar personal information||Lead, opportunity, account, contract lookups and client servicing|
|Xero||Names, email addresses and similar personal information||Invoicing payments|
|Stripe||Names, email addresses and similar personal information||Credit card payments|
|Logentries||Usage data||Log management|
|Internal NW software
(User Admin panel)
|Names, email addresses, company names||Account lookups and servicing|
² To be reviewed and amended as necessary