Brandwatch Partner Agreement Terms and Conditions

Co-marketing

The parties agree to the co-marketing set out on the PDD (if any). All co-marketing is subject to each party’s final approval before publication of the co-marketing, such approval not to be unreasonably withheld or delayed. As part of any co-marketing, or its own marketing, each party may hold itself out only as an “Official Partner” of the other party.

Referrals

This section applies if the referral option is selected on the PDD.

1. During the Term, each party appoints the other as a non-exclusive referrer of the other party’s Services to potential customers (each a “Prospect”). The party that refers the other party’s Services is the “Referring Party”. The party whose Services are referred is the “Selling Party”.
2. The Referring Party will comply with any advertising and marketing materials that the Selling Party makes available to it as part of its referral activities (“Advertising Materials”).
3. The Referring Party does not have any authority to: (a) set or amend the Selling Party’s prices for its Services; or (b) contractually bind the Selling Party to a Prospect.
4. The Referring Party will refer Prospects by sending an email to the email address identified by the Selling Party that includes: the name and contact information of the Prospect; the Services the Prospect is interested in purchasing (if known); the nature of the relationship between the Referring Party and the Prospect; and any other information the Selling Party reasonably requests.
5. Upon receipt of a Prospect’s information, the Selling Party determines whether to pursue the Prospect. The Selling Party is not under any obligation to provide its Services to a Prospect. The Selling Party will pay to the Referring Party the referral fee set out on the PDD if, subject to point 6 below, the Selling Party signs a written contract with a Prospect to provide it Services within 12 months of receipt of an email introducing the Prospect.
6. The Referring Party is not entitled to a referral fee where the Prospect: (a) had a previous relationship with the Selling Party; (b) was previously referred to the Selling Party by a third party; (c) is domiciled or otherwise based in a territory outside of the territory in which a Referring Party is eligible to refer the Selling Party’s Services (if any limitation is set out on the PDD); (d) is a current Prospect of the Selling Party; (e) is not an end-user of the Services (e.g. is a reseller or marketing agent); or (f) does not pay the fees to the Selling Party. If there is a dispute about whether a referral fee is due, the Selling Party has the sole authority to decide the dispute.
7. The Selling Party will inform the Referring Party in writing if it is due a referral fee. The Referring Party will then submit a legally valid invoice to the Selling Party for the amount of the referral fee. Unless specified otherwise on the PDD, the Selling Party will pay the referral fee within 60 days of its receipt of a valid invoice. The referral fee is exclusive of any legally applicable taxes, levies, duties or similar governmental assessments of any nature, including goods and services, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.

Software integration

This section applies only if software integration is selected on the PDD.

1. Partner will use commercially reasonable endeavours to build an integration between our API (which forms part of the Brandwatch Services) and Partner Services (“Integration”). Partner will dedicate sufficient resources to build and support the Integration (including technical support and account management support) throughout the Term, at Partner’s sole cost and expense. Partner will not charge us any fees in respect of the Integration, now or in the future. Partner may charge Partner’s own clients fees for the Integration.
2. We will provide Partner with free access to our API and resources on how to use the API.
3. Partner owns all of the intellectual property rights, if any, in the Integration. Partner does not obtain any ownership to any of our intellectual property rights that Partner accesses as part of building the Integration, including our API.

Training

Each party will provide the other party with free, online training that a party reasonably requires to perform its obligations under and/or utilize the benefits of this Partner Agreement.

Test accounts

During the Term, each party may provide the other party with a test account to use its Services or to build and Integration (“Test Account”). The Test Account is provided for the other party’s internal use only to allow it to demonstrate the Selling Party’s Services or to build the Integration. Each party’s use of a Test Account is subject to the acceptance of the Selling Party’s standard terms and conditions as set out on the PDD, which supersede any conflicting terms in this Partner Agreement related to use of the Test Account.

Vizia for Developers

This section applies if Vizia for Developers is selected on the PDD.

1. Access to the Vizia for Developers framework is a software licence. We give Partner access to software modules (each a “Module”). Partner will use the Modules to develop a software application (each an “Application”). We will also provide Partner with a test environment to test the Application (“Test Harness”) for use in connection with “Vizia”, which is our customizable application that displays and visualizes data. Collectively, the Modules and the Test Harness are the “Framework”.
2. Subject to the terms of this Partner Agreement, we grant Partner a limited, worldwide, revocable, non-transferable, non-assignable, and non-exclusive licence to download and use the Framework for the sole purpose of developing Applications for use in Vizia.
3. We (or our licensors) own all right, title, and interest in the Framework, including any intellectual property rights that subsist in the Framework. Unless expressly stated otherwise in this Partner Agreement, Partner does not have any rights to use our intellectual property rights.
4. Other than our intellectual property rights in the Framework, and subject to point 1 above, Partner is the owner of all intellectual property rights in the Application that Partner develops using the Framework, including any intellectual property rights that subsist in an Application.
5. We may change any part of the Framework at any time, including stopping providing the Framework at all, without prior notice to Partner. Any version of the Framework may be incompatible with an Application that Partner developed on any other version of the Framework.
6. Except to the extent required by applicable third party licences or as expressly permitted elsewhere under this Partner Agreement, Partner may not copy (except for reasonable backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the Framework (in whole or in part), provided that we will make available to Partner, upon written request and payment of our reasonable administrative fees, interface information necessary to achieve interoperability with independently created computer programs.
7. Partner will not use the Framework or an Application to engage in any activity that interferes with, disrupts, damages, or accesses in an unauthorised manner ours or a third party’s servers, networks, or other properties or services. This includes hacking, spamming, and similar activities. Partner also will not use the Framework or an Application to violate applicable law.
8. Partner will not remove or alter any proprietary rights notices that may be affixed to or contained within the Framework. Any part of the Framework licensed under an open source licence is also governed by the terms of that open source licence (and, in the event of a conflict, the terms of that open source licence prevail). It is Partner’s responsibility to ensure that the Application complies with the terms of any applicable open source licences.
9. Partner will protect the privacy and legal rights of an Application’s users. If an Application’s users provide Partner with any personally identifiable information, Partner will provide privacy notices to those users and store any information the users give to Partner or otherwise make available to Partner in compliance with applicable law.
10. Partner – and not us – is solely responsible for any data, content, or resources that Partner creates, transmits, or displays via the Application (“Partner Data”). We do not agree to host, process, store, or otherwise use Partner Data.
11. Partner is responsible for maintaining the confidentiality of any developer credentials used to access the Framework. Partner is responsible for any Application developed under its developer credentials.
12. Partner will submit an Application for our review before we allow it to run in Vizia. If we decide not to allow an Application to run in Vizia, we will endeavour to inform Partner of the reasons why and give Partner an opportunity to fix any issues with the Application or its functionality. Notwithstanding our review of the Application, we take no responsibility for any part or use of the Application.
13. If we have approved an Application for use in Vizia and we host the Application on our infrastructure, Partner grants to us a worldwide, revocable, and non-exclusive licence to host the Application.

Brand use

If brand use is selected on the PDD, during the Term each party gives to the other party a non-exclusive, revocable, royalty-free, non-sub-licensable license to use the designated trade names, trademarks, service marks, logos, and domain names of the other party in accordance with that party’s Advertising Materials.

Confidential Information

Confidential Information means any information that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is expressly marked as confidential or that a reasonable person under the circumstances would understand to be confidential. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

Strict confidence

Each party will hold in strict confidence for two years after the end of the Term, and will not use other than for the sole purpose of performing its obligations or utilizing its benefits under this Partner Agreement, all Confidential Information of the other party. Nothing in this section 3 prevents the Receiving Party from disclosing the Confidential Information of the Disclosing Party to its corporate affiliates, legal advisers, accountants, or other professional advisers where required (collectively, “Permitted Recipients”), provided that (i) the party so disclosing will remain responsible for its obligations and for the Permitted Recipients’ use (and any disclosure) of the Confidential Information.

Term

The “Initial Term” of this Partner Agreement is the period designated as such on the PDD. Unless stated otherwise on the PDD, the Agreement automatically renews for successive periods equal to the Initial Term (each a “Renewal Term”), unless a party gives at least 30 days’ written notice of intent to terminate prior to the expiration of the then-current Initial Term or Renewal Term (as applicable), such notice to be effective at the end of the then-current term. The Initial Term and any Renewal Term together are the “Term”.

Mutual termination

A party may terminate this Partner Agreement by written notice to the other party at any time if: (a) the other party is in material breach and, if remediable, following being notified in writing of such breach, the breach is not remedied within 30 days; (b) if the other party becomes the subject of a petition in liquidation or any other proceeding relating to insolvency, receivership, administration, liquidation or assignment for the benefit of creditors; (c) if a party breaches the Referrals (specifically point 2) above or fails to comply with the Advertising Materials; or (d) at any time on 30 days’ written notice to the other party.

Accrued rights and liabilities and consequences

Termination of this Partner Agreement, however arising, does not affect the accrued rights and liabilities of the parties as at termination. Subject to the previous sentence, upon termination of this Partner Agreement, all rights under it cease immediately.

Surviving termination

The sections of this Partner Agreement that by their nature or intent should reasonably be viewed to termination of this Partner Agreement, survive such termination.

Liability

Nothing in this Partner Agreement excludes or limits a party’s liability for any liability that cannot be excluded or limited under applicable law (such as fraud).

Losses neither party is liable for

Subject to section 1, each party excludes all liability, whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution or otherwise, direct or indirect, whether foreseeable, known, foreseen, or otherwise, for any: (a) loss of revenue or profits (of any kind); (b) loss of goodwill; (c) loss of business; (d) failure to process data adequately; (e) loss or corruption of data or information; or (f) for any special, indirect, or consequential loss, costs, damages, charges, or expenses, however arising.

Liability cap

Subject always to the Scope of this Partner Agreement, the Liability Cap, and the Entire Agreement (in the General section below), each party’s total liability, however arising, will under no circumstances exceed in aggregate, the greater of: (1) £15,000; or (ii) 110% of the total amount of referral fees paid or payable to a party pursuant to this Partner Agreement for the 12 months immediately preceding the date any first claim arose.

Each party agrees to defend, indemnify and hold the other party, its officers, directors, employees, agents, and corporate affiliates, harmless against any claims, demands, actions, proceedings, losses, liabilities, damages, expenses and costs (including court costs and reasonable attorneys’ fees), whether direct or indirect, arising out of, related to, or in connection with: (a) a third party claim that the other party’s Services violate the intellectual property rights of a third party; and (b) a breach by a Referring Party of its obligations as per point 2 under Partner Activities>Referrals above.

Rules of interpretation

The following rules of interpretation apply to this Agreement: (a) the words “include” or “including” are deemed to have the words “without limitation” following them; (b) references to the singular include the plural and vice versa; and (c) references to “will” are to be construed as having the same meaning as “shall”.

Force Majeure

Neither party is liable for a breach caused by an event beyond its reasonable control, including a natural disaster, disease outbreak, war, riot, terrorist action, civil commotion, malicious damage, government action, industrial action or dispute, fire, flood, storm, or failure of third party telecommunications, or other services.

Invalidity

If any term of this Partner Agreement is found invalid, illegal or unenforceable, the rest of the Agreement remains in effect.

No waiver

Either party’s delay or failure to enforce a term of the Partner Agreement is not a waiver of that right and does not prevent that party from later enforcing that or any other term.

Notice

Each party will deliver all notices in respect of legal service or material breach by recorded delivery: in respect of Brandwatch, to our registered office address as set out above; and in respect of Partner, to Partner’s address as set out in a PDD. Any notices in respect of any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, Partner will send such notices to [email protected] and we will send such notices to Partner to via an email address listed in any PDD. Notice sent by recorded delivery is received three London, UK business days after posting and email notice is received 24 hours after it is sent.

Assignment

Neither party may assign or transfer this Partner Agreement or any right, benefit or interest under it, without other party’s prior written consent, and any such assignment or transfer without the other party’s prior written consent is void. Notwithstanding the previous sentence, either party may assign this Agreement without the other party’s consent pursuant to a merger, acquisition, change in control or similar transaction.

Subcontracting

Neither party may subcontract its obligations under this Partner Agreement without the prior written consent of the other party. Notwithstanding the previous sentence, either party may subcontract the provision of its own Services.

Anti-bribery

The parties will: (i) comply with all applicable law relating to anti-bribery or anti-corruption; (ii) not engage in any act which, if it had occurred in the United Kingdom or the United States would have violated applicable law relating to anti-bribery or anti-corruption; and (iii) promptly report to the other party any request or demand for any undue financial or other advantage of any kind it receives in connection with the performance of this Agreement.

Entire agreement

This Agreement, including materials incorporated by reference, constitutes the exclusive statement of agreement and understanding between the parties. This Agreement excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written about its subject matter. You agree that no representations were made prior to entering into this Agreement and that, in entering into this Agreement, you do not rely on, and will have no remedy in respect of, any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as set out in this Agreement. Nothing in this Agreement excludes or limits our liability for fraudulent misrepresentations or excludes (but this Agreement does limit) our liability for any fundamental misrepresentation.

Third party rights

Nothing in this Partner Agreement creates or confers any rights or other benefits in favour of any person other than the parties to this Partner Agreement even if that person has relied on any such term or has indicated to any party its assent to any such term.

No agency

This Partner Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

Governing law and jurisdiction

Each party agrees to the applicable governing law and to the exclusive jurisdiction of the applicable courts, as set out below:

If you live in Australia, New Zealand, or a country in Europe (which includes countries in the European Economic Area and the U.K.), the Middle East, Africa, Central America, South America, or the Caribbean, the governing law is in England. The courts having exclusive jurisdiction are in England.

If you live in the U.S.A., Mexico, or Canada, the governing law is New York (without regard to choice or conflicts of law rules). The courts having exclusive jurisdiction are in New York City.

If you live in countries in Asia or the Asia Pacific, the governing law is in Singapore. The courts having exclusive jurisdiction are in Singapore.