Last Updated: May 25, 2018
THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND NEWSWHIP (AS DEFINED IN SECTION 15 BELOW) AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU AND YOUR AGENTS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.
By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any Agent to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to NewsWhip that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
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:
Account: means any accounts created by or on behalf of Subscriber or its Agents within the Service.
Affiliate: 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.
Agent: means an individual authorized to use the Service through Your Account as an agent and/or administrator as identified through a unique login.
Analytics: means the NewsWhip Analytics service, and the applicable Software, Service Data, updates, and documentation associated therewith.
API: means the application programming interfaces 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.
Chrome Extension: means a plugin for the Chrome web browser that provides NewsWhip data for the websites You visit.
Confidential Information: means all information disclosed by You to NewsWhip or by NewsWhip to You which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to NewsWhip’s security policies and procedures, any scientific or technical information, invention, design, device, process, compilation of information, record, specification, procedure, formula, improvement, technology, code, software code, hardware or method, any concepts, reports, data, know how, works in progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets, and these Terms as well as all Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
Contracting Party: means the NewsWhip entity with which You are contracting with under Section 15 of these Terms.
Directive: means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
Form: means any of our generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.
NewsWhip: means the NewsWhip entity with which You are contracting with under Section 15 of these Terms; which is either NewsWhip Media Ltd., an Irish limited company or any of its successors or assignees, OR NewsWhip US Inc., a Delaware corporation or any of its successors or assignees.
NewsWhip Group: means NewsWhip Media Ltd, an Irish limited company together with all its Affiliates.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Service: means any service provided to You by NewsWhip, as applicable, together with all applicable Associated Services that You have purchased or deployed or to which You have subscribed, whether made available to You on a trial, beta, or paid basis. Services include, but are not limited to, Spike, Analytics, APIs (GET and POST), and the Chrome Extension.
Service Data: means all data received by You or Your Agents through a NewsWhip Service, including data received through software or an API, communications, or other materials stored within the Service.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith for the Service, as applicable, to which You subscribe.
Site: means www.newswhip.com, as well as the other websites that the NewsWhip Group operates.
Software: means software provided to You by NewsWhip (either by download or access through the internet) that allows You or Your Agent to use any functionality in connection with the applicable Service.
Spike: means the NewsWhip Spike service, and the applicable Software, Service Data, updates, and documentation associated therewith.
Subscription Term: means the period during which You have agreed to subscribe to the NewsWhip Service.
“We,” “Us” or “Our”: means NewsWhip, as described in Section 15.
- GENERAL CONDITIONS: ACCESS TO AND USE OF THE SERVICE
During the Subscription Term and subject to compliance by You and Your Agents with these Terms, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to for Your internal business purposes.
The Services are licensed, not sold, and NewsWhip retains and reserves all rights not expressly granted in these Terms. You expressly acknowledge that NewsWhip retains all worldwide right, title and interest in and to the Services and Service Data, including all rights in patents, trademarks, trade names, copyrights, trade secrets, know-how, data (including all applications therefor), and all proprietary rights under the laws of any jurisdiction. You agree not to do anything inconsistent with such ownership, including without limitation, challenging the validity of the licenses granted herein.
NewsWhip owns all rights, title, and intellectual property in the Services. The Services do not provide any copyright or permissions to You for use of the content associated with the information the Services present. All data presented by the Services is presented “as-is” and NewsWhip disclaims all warranties to the content, data, links, and information presented in the Services, including any warranties of merchantability, non-infringement, specifically non-infringement of copyright or other intellectual property rights, and fitness for a particular purpose. NewsWhip grants You a limited, revocable, non-exclusive, non-transferable, and non-assignable license to access the Services in accordance with Your Service Plan and to make use of the data contained in the Services for intelligence gathering purposes.
You are responsible for procuring and maintaining the network connections that connect Your network to the Service. We are not responsible for notifying You or Your Agents of any upgrades, fixes or enhancements to any software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by NewsWhip. We assume no responsibility for the reliability or performance of any connections as described in this section.
In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with NewsWhip, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s or entity’s intellectual property rights; (g) use the Service in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (h) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (i) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (j) use the Service to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (k) attempt to use the Service in violation of these Terms.
You are responsible for compliance with the provisions of these Terms by Your Agents and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service to store, access, and/or transmit data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with third parties. You also maintain all responsibility for determining whether the Service(s) or the information generated thereby is accurate or sufficient for Your purposes. Access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. The foregoing shall not be deemed to limit Your use of the features of the Service. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.
In addition to Our rights as set forth below, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service: (a) during planned downtime for upgrades and maintenance to the Service (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; (c) if We suspect or detect any Malicious Software connected to Your Account or misuse of the Service by You or Your Agents; or (d) if you breach these Terms or fail to make the applicable payments for Your Service.
This Site or the Services may link to other websites operated by third parties. We have no control over these linked sites, each of which have separate privacy and data collection practices independent of NewsWhip. We are not responsible for and do not endorse or accept any responsibility for the availability, contents, products, services or use of any third party site, any website accessed from a third party site or any changes or updates to such sites. You acknowledge that you bear all risks associated with access to and use of content provided on a third party site and agree that we are not responsible for any loss or damage you may incur from dealing with such a third party site.
NewsWhip’s Chrome Extension (“Extension”) will provide NewsWhip data and/or Service Data related to the website that you are visiting. This Extension is provided to assist you in gathering information, obtaining NewsWhip data, and incorporating your NewsWhip experience on other websites.
Upon accepting these Terms and accessing the Services, You agree to also be bound by Twitter’s Terms of Service, which can be found at http://twitter.com/tos and are incorporated herein by this reference.
NewsWhip utilises the YouTube API Services within its Services. Upon accepting these Terms and accessing the Services, You agree to also be bound by YouTube’s Terms of Service, which can be found at https://www.youtube.com/t/terms and is incorporated herein by this reference.
- DATA PRIVACY AND SECURITY; CONFIDENTIALITY
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.
NewsWhip has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Service at reputable third-party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that the Personal Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Personal Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by NewsWhip, whether by accident or otherwise. If Customer’s use of the Service involves processing personal data pursuant to Regulation 2016/679 (the “GDPR”) and/or transferring personal data outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the Data Processing Addendum shall apply to such personal data and be incorporated into the Agreement upon the execution and submission of the Data Processing Addendum to NewsWhip in accordance with its terms. NewsWhip Data Processing Addendum is attached and incorporated hereto as Exhibit A.
You agree that We and the service providers that We utilize to assist in providing the Service to You 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, in response to Your support requests. Any third party 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.
- INTELLECTUAL PROPERTY RIGHTS
Each Party shall maintain 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”). The rights granted to You and Your Agents to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the Service and all hardware, Software and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with the NewsWhip Group and belong exclusively to the NewsWhip Group. The NewsWhip Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service 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.
By using NewsWhip’s Services, You give us permission to use Your company’s name and/or logo on our website and other marketing materials identifying you as one of our customers. No endorsement or affiliation is implied and your trademarks and copyrights remain your property.
- BILLING, PLAN MODIFICATIONS AND PAYMENTS
Unless otherwise indicated on a Form referencing these Terms or in any Additional Terms (as defined in Section 10.2) and subject to Section 5.2, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term, or with respect to any additional Services added to Your Account, at the time such additional Services are purchased, subscribed to or otherwise deployed. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You and Your Agents.
If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use the Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and the NewsWhip Group does not accept any liability for such loss.
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.
If You pay by credit card or certain other payment instruments, the Service provides an interface for the Account owner to input and change credit card information. The Account owner hereby authorizes the card issuer to pay the Subscription Charges and authorizes NewsWhip (or a billing agent acting on NewsWhip’s behalf) to continue automatically charging the Subscription Charges to Client’s credit card account in advance on a monthly basis, or on a periodic basis in accordance with the terms of Your Service Plan for periodic Subscription Charges. You further understand that the Subscription Charge shall continue to be charged to the Your credit card until the Services are properly terminated pursuant to these Terms, or until the balance on Your Account is paid in full, whichever is later. You must provide current, complete, and accurate billing and credit card information to NewsWhip, and You agree to promptly update your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. If payment is not received from Your credit card issuer, You agree to pay all amounts due upon demand. You further agree to pay all costs of collection, including but not limited to reasonable attorney’s fees and costs, on any unpaid outstanding balance. In certain instances, the issuer of Client’s credit card may charge a foreign transaction fee or related charges, which Client will be responsible to pay. Client is responsible for checking with its bank and/or credit card issuer for details regarding any foreign transaction fees or other bank fees. The Account owner will receive a receipt upon each receipt of payment by NewsWhip, or they may obtain a receipt from within the Service to track subscription status. The NewsWhip Group uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
- CANCELLATION AND TERMINATION
Either Party may elect to terminate Your Account and subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Services is so terminated, Your subscription to the Service (including any and all additional Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and additional Services to which You have subscribed or which you have deployed, as applicable, as of the time such subsequent Subscription Term commences.
No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Service Data in the normal course of operation. Service Data cannot be recovered once Your Account is cancelled.
If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation, in addition to other amounts You may owe NewsWhip, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or 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 afford NewsWhip not less than thirty (30) days to reasonably cure such breach.
We reserve the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Agents’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You or Your Agents have violated these Terms. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You or Your Agents may be referred to law enforcement authorities at Our sole discretion.
- DISCLAIMER OR WARRANTIES
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 SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
- LIMITATION OF LIABILITY
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.
The NewsWhip Group does not provide You with any license, copyright, or permissions regarding the information accessed through the Services, 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 and/or data accessed through links within the Services, nor shall We be liable for any alleged copyright/intellectual property infringement arising from Your external use of the data accessed through the Services or for any use of data accessed through links in the Services.
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 WOULD HAVE BEEN 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.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, THE NEWSWHIP GROUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Any claims or damages that You may have against NewsWhip shall only be enforceable against NewsWhip and not any other entity or its officers, directors, representatives or agents.
We will indemnify and hold You harmless, from and against any claim against You by reason of Your internal business use of the Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). This indemnification provision is limited to IP Claims relating to the Service itself, and does not indemnify You in relation to Your use of any information or data obtained by You through the Service. 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 defense, provided that (a) You promptly notify NewsWhip of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with NewsWhip in connection therewith.
The provisions of this Section state 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.
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 wilful misconduct by You; or (e) matters which You have expressly agreed to be responsible pursuant to these Terms.
- ASSIGNMENT; ENTIRE AGREEMENT; AMENDMENT
You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of the NewsWhip Group or in connection with any merger or change of control of NewsWhip or the NewsWhip Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill 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.
These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and NewsWhip with regard to the subject matter hereof. These Terms and any Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services We offer as part of or distinct from the Service (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by NewsWhip as Your consent to any such amendment. 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.
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.
- EXPORT COMPLIANCE AND USE RESTRICTIONS
The Service and other Software or 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, Software and such other components by You and Your Agents. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other 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.
- RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 1, 2.3, 3, 4, and 6-17 shall survive any termination of our agreement with respect to use of the Service by You or Agents. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
- WITH WHOM YOU ARE CONTRACTING
For the purposes of these Terms, the NewsWhip Contracting Party and the terms and conditions upon which each of the Parties contracts will vary depending on the Service. It is agreed that the table below sets out and determines (a) the entity within the NewsWhip Group with which You are contracting pursuant to these Terms with respect to Your Service; (b) to whom You should direct notices to for NewsWhip; (c) the law that will apply in construing or interpreting any dispute arising out of or in connection with these Terms as it relates to such Service; and (d) the courts which You and NewsWhip have agreed shall have exclusive jurisdiction over any final determination or interpretation in relation to these Terms with respect to such Service.
If You are subscribing to: Any NewsWhip Service and You are NOT located within the United States
The NewsWhip Contracting Party Is: NewsWhip Media Ltd.
Notices Should Be Addressed To: NewsWhip Media Ltd., Attn: Legal Department, 47 Merrion Square, Dublin 2, Ireland
The Governing Law Is: New York and controlling United States federal law (see Section 17)
If You are subscribing to: Any NewsWhip Service and You are located within the United States
The NewsWhip Contracting Party Is: NewsWhip US, Inc.
Notices Should Be Addressed To: NewsWhip US Inc., Attn: Legal Department, 25 Broadway, New York, NY 10004
The Governing Law Is: New York and controlling United States federal law (see Section 17)
Payments made by credit card, debit card or certain other payment instruments for the NewsWhip Service are billed and processed by a payment agent. To the extent the payment agent is not NewsWhip, the payment agent is acting solely as a billing and processing agent for and on behalf of NewsWhip and shall not be construed to be providing the applicable Service.
All notices to be provided by NewsWhip to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Form; or (b) electronic mail to the electronic mail address provided for Your Master Account. You must give notice to NewsWhip in writing by Courier or U.S. 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.
- GOVERNING LAW
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be submitted to binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association, incorporating and including the rules for emergency measures of protection. The judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The seat of the arbitration shall be in Dublin, Ireland. The language of the arbitration shall be English. You understand that Your agreement and acceptance of these Terms constitute a written agreement to arbitrate. These Terms, and any Additional Terms, shall be governed by and interpreted in accordance with the substantive laws, including the contract laws, of the state of New York, USA and the controlling United States federal laws.
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 company identified as the “Client” in this Addendum (the “Client“) on _________________ (the “Effective Date“). From the date of the last signature below, the Addendum shall form part of the agreement executed between NewsWhip and the Client governing the services provided by Client (the “Agreement“). This Addendum applies to the personal data received by NewsWhip from or on behalf of the Client in connection with the performance of the services under the Agreement including the personal data set out in Schedule 1 (“Client Personal Data“).
- Definitions. The following definitions apply in this Addendum (unless the context requires otherwise):
- “Data Protection Legislation” means the Data Protection Acts 1988 and 2003 (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 Client 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 Client 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.
- Interpretation. 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.
- Data Processing. In respect of any Client Personal Data processed by NewsWhip under this Addendum, the Parties acknowledge that the Client shall be the controller and NewsWhip shall be a processor.
- Client Obligations. Client, as the controller or primary processor (as applicable), is solely responsible for establishing the lawful basis for the processing of Client 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 Client Personal Data to NewsWhip for the duration and purposes of this Addendum. Client, as the controller, is further solely responsible for the accuracy and quality of the Client Personal Data.
- NewsWhip Obligations. To the extent that NewsWhip processes Client Personal Data pursuant to this Addendum, NewsWhip shall:
- process the Client Personal Data in accordance with the terms of the Agreement and the instructions of the Client (unless NewsWhip is required to process the Client Personal Data by applicable European Union (“EU“) or EU Member State law in which case NewsWhip shall notify the Client 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 Client Personal Data are party to confidentiality obligations in respect of the Client Personal Data;
- cooperate as reasonably requested by the Client (at the Client’s sole expense):
- to enable the Client to comply with any exercise of rights by a data subject under the Data Protection Legislation in respect of Client Personal Data; and
- where the Client conducts a data protection impact assessment;
- notify the Client 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 Client;
- implement and maintain appropriate technical and organisational measures in place to ensure the security of the Client Personal Data taking into account: (i) the state of the art; (ii) the costs of implementation; (iii) the nature, scope, context and purposes of the processing; and (iv) the inherent risk of the processing activities to data subjects;
- notify the Client 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 Client, any other supervisory authority) in the performance of its tasks where required.
- International Transfers. The Client hereby agrees to the transfer of Client Personal Data processed under this Addendum outside of the EU PROVIDED that in effecting any international transfer of Client 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 Client 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.
- Sub-Processors. The Client hereby authorises NewsWhip to use third parties (“sub-processors”) to provide the Services provided:
- NewsWhip shall notify the Client in advance of any proposed use of a sub-processor, and any replacement or addition to them and the Client shall have the right to object on reasonable grounds to the use of or change to any sub-processor within 14 days of Client notifying the Client of the change. In the event of the Client 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 Client consents to the use of the sub-processors listed at Schedule 2.
- Audit. NewsWhip shall make available all information reasonably requested by the Client to satisfy itself that NewsWhip is complying with its data protection obligations under this Addendum. Client (and its third-party representatives) shall be permitted to audit NewsWhip’s premises, systems, and facilities during normal business hours PROVIDED THAT:
- Client shall provide at least 14 days’ prior written notice of its intention to carry out an audit;
- Client 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 Client;
- NewsWhip may request that any third party representative performing an audit on behalf of Client 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 Client 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 Client shall appoint another auditor or conduct the audit itself); and
- nothing in this Addendum shall entitle Client to access or inspect any records which contain information relating to any other client 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 clients or customers.
NewsWhip will inform Client 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 Client.
- 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 Client, delete or return Client Personal Data and copies thereof to the Client save to the extent that NewsWhip is required by applicable law to retain the Client Personal Data.
- General. 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.
- Client 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.
IN WITNESS WHEREOF, the parties’ authorised signatories have duly executed this Agreement:
|Name:||Name: Paul Quigley|
|Client Contact email (for breach notifications):||NewsWhip Contact email (for breach notifications):|
Schedule 1- Personal Data
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