Terms USA

Last updated: March 10, 2021

1. Definitions

  • 1.1
    Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party.  For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.

  • 1.2
    Confidential Information has the meaning given to it in Section 4.1.

  • 1.3
    Customer Data means all Data made available by the Customer or its Users to Talon.One or otherwise provided by Customer or its Users in connection with the provision of the Services.

  • 1.4
    Data means text, images, materials, photos, audio, video, and all other forms of data or communication. 

  • 1.5
    Documentation means the documentation for the Subscription Service generally supplied by Talon.One to assist its customers in the use of the Subscription Service, including user manuals and other written materials.

    1.6
    Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Service.

    1.7
    Order Form means each Talon.One order form, statement of work or similar ordering document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Subscription Service ordered by Customer from Talon.One, sets forth the prices for the Subscription Service and contains other applicable terms and conditions.  The initial Order Form entered into by the Parties is attached hereto as Exhibit A.  The initial Order Form need not be separately signed by the Parties.

    1.8
    Professional Services means configuration, implementation, training, consulting and/or custom services to be provided by Talon.One.  All Professional Services will be set forth and described on an Order Form.

    1.9
    Services means the Subscription Service and any Professional Services provided by Talon.One pursuant to Section 2.1 hereof.  

    1.10
    Subscription Service means Talon.One’s proprietary subscription-based software solution set forth and described on the applicable Order Form. 

    1.11
    Subscription Term means the set term designated on an Order Form. 

    1.12
    Talon.One Data means all Data made available by Talon.One to Customer in connection with the Customer’s use of the Services.

    1.13
    Third Party Applications means online, Web-based applications or services and offline software products that are provided by third parties, and interoperate with the Subscription Service. 

    1.14
    Users mean individuals who are authorized by the Customer to use the Services, and, with respect to the Subscription Service, who have been supplied passwords by the Customer (or by  Talon.One at the Customer’s request).  Users consist of any employee of the Customer or its Affiliates and any independent contractor of the Customer or its Affiliates.

2. Services

  • 2.1
    Services.  Talon.One will make available the Services to  Customer for the Subscription Term solely for use by Customer and the Users in accordance with the terms and conditions of this Agreement, the Documentation, and the Order Form. Any conflict between the terms and conditions set forth in this Agreement and any Order Form shall be resolved in favor of this Agreement.  The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Talon.One regarding future functionality or features.

  • 2.2
    License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Talon.One hereby grants to the Customer, solely during the Subscription Term, a non-exclusive, non-transferable (except as set forth in Section 11.2) license to access and use the Subscription Service solely for the Customer’s internal business purposes.  This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Service on behalf of any third party.  The Customer is responsible for procuring and maintaining the network connections that connect the Customer to the Subscription Service.  The Customer agrees: (a) that only authorized Users are permitted to use the Subscription Service; (b) that it is responsible for authorized Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service and the Documentation from unauthorized use and/or access.  

  • 2.3
    Affiliates.  Customer Affiliates may purchase services from Talon.One directly by entering into an Order Form with Talon.One referencing this Agreement. By such Affiliate entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto and for purposes of such Order Form, shall also be deemed “Customer” hereunder. Unless stated otherwise on an Order Form, Customer and its Affiliates who sign Order Forms under this Agreement shall be deemed to be jointly liable for a breach of this Agreement.

  • 2.4
    Third Party Applications. The Subscription Service may interact with and access Customer and third party applications and related information used by Customer in connection with the Subscription Service, including access to Customer Data and Customer Data sources. Customer shall make any such Third Party Applications, data sources, Customer Data and information available to Talon.One and the Subscription Service as necessary to use the Subscription Service as contemplated in this Agreement, including, without limitation, obtaining all required access and credentials. Customer shall be solely responsible for ensuring compliance with third party terms of use, privacy policies and contractual obligations in making such Third Party Applications, data sources, Customer Data and information available to Talon.One.  

3. Fees; Payment Terms

  • 3.1
    Fees.  The fees for the Services and payment terms are as set forth in the applicable Order Form.  Unless otherwise set forth on the Order Form, payment shall be due within thirty (30) days after receipt of Talon.One’s invoice and shall be made in US Dollars.  Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due.    

  • 3.2
    Taxes.  Fees are exclusive of taxes.  The Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Talon.One and any taxes or obligations imposed upon Talon.One under federal, state and local wage laws.

4. Confidentiality

  • 4.1
    Confidential Information.  During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”).  Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature.  The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement.  The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party.  Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used.  The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and the Customer further agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without Talon.One’s prior written approval.  A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights. 

  • 4.2
    Exclusions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.  The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

  • 4.3
    Injunctive Relief.  Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate.  Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

5. Warranties

  • 5.1
    Subscription Service Warranty.  Talon.One warrants that during the Subscription Term that the Subscription Service will conform, in all material respects, with the Documentation.  Talon.One does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free.  Talon.One makes no warranty regarding features or services provided by third parties.  For any breach of the above warranty, Talon.One will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty.  The Customer will provide Talon.One with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.  Such warranty shall only apply if the Subscription Service has been utilized by the Customer in accordance with the Order Form and this Agreement.

  • 5.2
    Professional Services Warranty. Talon.One warrants that any Professional Services provided hereunder shall be provided in a competent and professional manner and in accordance with any specifications set forth in the Order Form in all material respects.  If the Professional Services are not performed as warranted, then, upon the Customer’s written request, Talon.One shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to the Customer.  Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services.  

  • 5.3
    SLA.   In addition to the warranties provided herein, the Subscription Service will also be provided in accordance with the Service Level Agreement attached as Exhibit B hereto.

    5.4
    Data Protection Agreement. The Parties shall comply with the Data Protection Agreement attached as Exhibit C hereto (the “DPA”), which is incorporated herein by this reference and except as expressly stated therein, shall not be modified except by mutual written agreement of the Parties. By signing this Agreement, each party is deemed to have signed the DPA, where Customer shall be deemed the “Controller” and Talon.One shall be deemed the “Processor”.

    5.5
    No Other Warranty. TALON.ONE DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY TALON.ONE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6. Limitations of Liability

  • 6.1
    Consequential Damage Exclusion.  Except for a breach by a Party of its obligations in Section 4 (Confidentiality) and a Party’s willful misconduct or gross negligence, neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages.

  • 6.2
    Limitation of Liability. Except for a breach by a Party of its obligations in Section 4 (Confidentiality), a Party’s indemnification obligations in Section 9 (Indemnification) and a Party’s willful misconduct or gross negligence, the total cumulative liability of a Party to the other Party for any and all claims and damages under this Agreement, whether arising by statute, contract, tort or otherwise, will not exceed the Services fees paid or payable by Customer to Talon.One under the Order Form for the Services which form the subject of the claim during the twelve (12) month period immediately preceding the event giving rise to the claim.  The provisions of this Agreement allocate risks between the Parties.  The pricing set forth in each Order Form reflects this allocation of risk and the limitation of liability specified herein.

7. Terms

  • 7.1
    Term.  This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 7.2 below.  The Subscription Term of each Order Form shall be set forth on the Order Form.  Talon.One reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Form upon providing the Customer with written notice thereof (which notice may be provided by e-mail) at least 30 days prior to the then current renewal date of the Order Form.

  • 7.2
    Termination.  Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  Termination of an Order Form shall not be deemed a termination of this Agreement.  Termination of this Agreement shall, however, terminate all outstanding Order Forms.  Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms then currently in effect.  All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.

  • 7.3
    Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Talon.One shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Services.  The Customer shall pay Talon.One for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.  If the Order Form is terminated for any reason other than a termination as a result of  Customer’s material breach, then Talon.One shall be entitled to all of the Fees due under the applicable Order Form for the entire unexpired terminated portion of the term of such Order Form. If the Order Form is terminated as a result of Talon.One’s material breach, then Customer shall be entitled to a refund of the pro rata portion of any prepaid unused subscription fees or any other prepaid, unused fees paid by Customer to  Talon.One under this Agreement.  Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession. Upon request by Customer within thirty (30) days following termination, Talon.One shall make such Customer Data available to the Customer in a mutually agreed upon format. After such period, Talon.One will have no further obligation to store and/or make available the Customer Data and may delete the same

8. Ownership; Use of Data; Obligations

  • 8.1
    Subscription Service. The Customer acknowledges and agrees that as between Talon.One and the Customer, all right, title and interest in and to the Subscription Service (excluding any Customer Data) and including all modifications and configurations, all Talon.One Data and all of Talon.One’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by Talon.One in providing the Subscription Service and all derivatives thereof are and shall remain Talon.One’s or its licensors’.  The Talon.One name, all Talon.One logos, and the product names associated with the Subscription Service are trademarks of Talon.One or third parties, and no right or license is granted to use them.  The Customer shall not remove any Talon.One trademark or logo from the Subscription Service.  During the term of this Agreement, Talon.One grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.2), royalty-free right to use, display, transmit, and distribute the Talon.One Data solely in connection with the Customer’s permitted use of the Subscription Service.  Talon.One will have the right to generate Aggregate Data, and the parties agree that Talon.One may use Aggregate Data for any business purpose during or after the term of this Agreement.  Talon.One will not distribute Aggregate Data in a manner that personally identifies Customer, customers of Customer or its Users. For purposes of the foregoing, “Aggregate Data” means (a) data generated by aggregating Customer Data with other data so that the results are not personally identifiable with respect to Customer, customers of Customer or Authorized Users, and (b) any anonymous data and learnings regarding use of the Service.    In the event Customer provides Talon.One with Feedback, Customer hereby grants to Talon.One an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed.

  • 8.2
    Customer Data.  The Customer retains ownership of all right, title and interest in and to all Customer Data.  During the term of this Agreement, the Customer hereby grants to Talon.One a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.2), royalty-free right to use, display, transmit, and distribute the Customer Data solely as necessary to provide the Subscription Service to the Customer. Talon.one will provide online access to Customer Data for up to 3 months (3) months. The three (3) month period begins at the time the consumer activity is recorded. At the end of the data retention period, Talon.one may, in its sole discretion, delete or archive any Customer Data from the talon.one platform. 

  • 8.3
    Customer Obligations.  The Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement.  Without Talon.One’s express prior written consent in each instance, the Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service.  Except as expressly permitted in this Agreement, the Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Subscription Service to any third-party.  Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.

9. Indemnification

  • 9.1
    9Talon.One Indemnification.  Subject to Section 9.3 below, Talon.One will defend Customer, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid by under a court-approved settlement of, a Claim Against Customer.  If a Claim Against Customer is brought or is likely, in Talon.One’s sole opinion, to be brought, Talon.One will, at its option and expense (A) obtain the right for Customer to continue using the Services; (B) replace or modify the affected Services so that they becomes non-infringing; or (C) upon notice to Customer, terminate this Agreement or Customer’s use of the affected Services, provided that in the case of (C) Talon.One promptly refunds to Customer the prorated portion of any unearned pre-paid annual subscription fees paid hereunder for the affected Services.  Talon.One’s obligations in this Section 9.1 do not cover third party claims to the extent such claims arise from: (1) any products, services, technology, materials or data not created or provided by Talon.One (including without limitation any Customer Data), (ii) any part of the Services made in whole or in part in accordance to Customer specifications, (iii) any modifications made after delivery by Talon.One, (iv) any combination with other products, processes or materials not provided by Talon.One (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance with this Agreement or any Documentation.

  • 9.2
    Customer Indemnification.  Subject to Section 9.3 below, Customer will defend  Talon.One, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Talon.One Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Talon.One Indemnitees by a third party (i) alleging that the Customer Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, (ii) arising out of or attributable to the Customer’s breach of Sections 8.3 above, or (iii) arising out of or attributable to Customer’s misuse of the Services (each, a “Claim Against  Talon.One”), and will indemnify the Talon.One Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Talon.One Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against Talon.One.

  • 9.3
    Indemnification Procedure.  Each Party’s obligation to indemnify the other party is conditioned on the Party seeking indemnification:  (i) promptly notifying the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (ii) allowing the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim that requires the indemnified Party to admit fault without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed), and (ii) giving the indemnifying Party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.

    9.4
    Sole Remedy.  This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section

10. Insurance

  • Talon.One shall maintain in full force and effect during the term of any Order Form the following insurance:  (a) Workers’ compensation and employers’ liability insurance with limits to conform with amounts required by applicable law; (b) Commercial general liability insurance with limits not less than one million dollars ($1,000,000) per occurrence for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage; and (c) Professional liability (Errors and Omissions) and Cyber Insurance each with limits not less than one million dollars ($1,000,000) annual aggregate for all claims each policy year.  As evidence of insurance coverage, upon request Talon.One shall deliver certificates of insurance issued by Talon.One’s insurance carrier showing such policies in force during the term of this Agreement.  

11. General

  • 11.1
    Entire Agreement.  This Agreement, including all Order Forms, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns.  Only a written instrument that refers to this Agreement or the applicable Order Form and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form.  Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the order is accepted by Talon.One.  This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

  • 11.2
    Assignment.  This Agreement shall be binding upon and for the benefit of Talon.One, the Customer and their permitted successors and assigns.  Either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets.  Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void.  Talon.One may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Talon.One shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.

  • 11.3
    Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions.

    11.4
    Disputes.   Any disputes between the Parties arising out of this Agreement shall be resolved as follows:  Members of the senior management of both Parties shall meet to attempt to resolve such disputes.  If a dispute cannot be resolved within fifteen (15) days, either Party may make a written demand for mediation.  Within fifteen (15) days after such written notification, the Parties shall meet for one day with an impartial mediator.  The costs and expenses of the mediator shall be shared equally by the Parties.  

    11.5
    Headings.  The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. 

    11.6
    Relationship of the Parties.  Talon.One and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.  Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

    11.7
    Force Majeure.  Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party (each a “Force Majeure Event”).

    11.8
    Notices.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Order Form.  Either Party may change its address by giving written notice of such change to the other Party.

    11.9
    Modifications to Subscription Service.  Talon.One may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service.

    11.10
    Publicity.  Unless otherwise set forth in an Order Form, Customer hereby grants Talon.One a non-exclusive license solely during the term of the Services Order to list Customer’s name and display the Customer’s logo in the customer section of Talon.One’s website and to use Customer’s name and logo in Talon.One’s customer lists but only to the extent that other customers of Talon.One are also listed on such list. Any other use by Talon.One of the Customer’s name, logo or trademark requires the Customer’s prior written consent (such consent not to be unreasonably withheld).

    11.11
    No Third Party Beneficiaries.  Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.

    11.12
    Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument.  Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.

    11.13
    Waiver and Severability.  Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.  The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

Exhibit B - Service Level Addendum 

  • 1 Definitions
    Certain capitalized terms not otherwise defined in this Service Level Addendum, will have the meanings set forth in the Agreement.  The following terms will have the definitions set forth below:

  • 1.1
    System Uptime” will mean the total amount of time during any calendar month, measured in minutes, during which customer has the ability to access the features and functions of the Subscription Service according to the terms of the Agreement.

  • 1.2
    Scheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Subscription Service or to deliver Customer Data, according to the terms of the Agreement, due to planned system maintenance performed by Talon.One. Talon.One will provide reasonable prior notice to conduct system maintenance. 

    1.3
    Unscheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the features and functions of the Subscription Service according to the terms of this Agreement, other than Scheduled Downtime, as defined above.

    1.4
    System Availability” will mean, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the total time during such month, and thereafter dividing the difference so obtained by the total time during such month.  Represented algebraically, System Availability for any particular calendar month is determined as follows:
    (Total Monthly Time - Unscheduled Downtime)            System Availability  =_____________________________________________                                                                      Total Monthly Time

    NOTE:  “Total Monthly Time” is deemed to include all minutes in the relevant calendar month, to the extent such minutes are included within the Subscription Term.

    2. System Performance

    2.1
    System Availability:  Talon.One will undertake commercially reasonable measures to ensure that System Availability equals or exceeds ninety-nine point nine percent (99.9%) during each calendar month (the “Service Standard”), provided that any Unscheduled Downtime occurring as a result of circumstances beyond Talon.One’s reasonable control including, without limitation, (i) Customer’s breach of any provision of this Agreement; (ii) non-compliance by Customer with any provision of this Exhibit; (iii) incompatibility of Customer’s equipment or software with the Subscription Service; (iv) poor or inadequate performance of Customer’s systems; or (vi) force majeure (as contemplated in the Agreement), shall not be considered toward any reduction in System Availability measurements.

    2.2
    Access to Support; Response Times:  Customers may report any Unscheduled Downtime by email at support@talon.one 24 hours per day, 7 days per week. Talon.One classifies problems with the Subscription Service using the following problem classification table:

    ClassificationCriterion
    Level 1 (critical): The Subscription Service is not available.
    Level 2 (medium): The Subscription Service is available, but its use is limited
    Level 3 (low): The Subscription Service is available, but its use is slightly limited

    Upon discovery of a problem both Parties shall promptly inform each other on discovery of the problem according to the classifications above.  The following table specifies the reaction steps, which must be performed by Talon.One and Customer by which Talon.One deals with the specific problem reports:

    Step 1 - Identification: Talon.One confirms that the problem exists and starts to collect information and performs an analysis.
    Step 2 – Temporary Solution: Talon.One processes the problem and provides a temporary work around, if possible, as soon as possible, in order to make the Subscription Service at least partially available.
    Step 3 – Problem Resolution: Talon.One provides a final solution to the problem, so that the Subscription Service is fully available again.

    3.1
    System Monitoring and Measurement:  Talon.One will provide for monitoring of System Availability on an ongoing basis.  All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Subscription Term.

    Terms & Conditions US

    Both Parties shall inform each other regularly on the status of the error.

  • 3. Measurement and Reports
    3.1
    System Monitoring and Measurement:  Talon.One will provide for monitoring of System Availability on an ongoing basis.  All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Subscription Term.
    3.2
    System Performance Reports:  Upon Customer’s request, Talon.One will provide reports to Customer on a quarterly basis setting forth measurements of Unscheduled Downtime and a calculation of System Availability for the relevant preceding quarter.  If Customer disagrees with any measurement or other information set forth in any such report, it must so inform Talon.One in writing within five (5) calendar days after receipt thereof, provided that the accuracy of any such report shall be deemed conclusive unless such notice is provided by Customer.  Any such notice must indicate specific measurements in dispute and must include a detailed description of the nature of the dispute.  Talon.One and Customer agree to attempt to settle any such disputes regarding System Availability and/or related measurements in a timely manner by mutual good faith discussions.

    4.  Customer Requirements
    4.1
    Minimum System Requirement:  The service standards set forth in this Exhibit assume that Customer, as applicable, meets the minimum system standards established by Talon.One. 
    4.2
    Additional Customer Obligations:  Except as otherwise agreed between the Parties in a separate written agreement, Customer is responsible for (i) maintenance and management of its computer network(s), servers, software, and any equipment or services related to maintenance and management of the foregoing; and (ii) correctly configuring Customer’s systems in accordance with the terms of this Agreement.
    4.3
    Reporting of Unscheduled Downtime: Customer must promptly notify Talon.One in the event Unscheduled Downtime occurs.  Unscheduled Downtime will be deemed to begin when Talon.One receives accurate notification thereof from Customer, or when Talon.One first becomes aware of such Unscheduled Downtime, whichever first occurs.
    4.4
    Non-Performance by Customer: The obligations of Talon.One set forth in this Exhibit will be excused to the extent any failures to meet such obligations result in whole or in part from Customer’s failure(s) to meet the foregoing requirements. 
    4.5
    Suspension: If the Customer endangers the security, integrity or availability of networks, the Talon.One’s servers or the Subscription Service, or if Talon.One has an objective reason to suspect so, then Talon.One may temporarily suspend Customer’s access to the Subscription Service. In case of deliberate actions by the Customer, Talon.One may terminate the contract with immediate effect: (a) if the Customer’s system or Subscription Service becomes an object of Denial of Service attacks by Customer; (b) if Customer is responsible for sending spam mails or text/multimedia messages (SMS/MMS) via the Subscription Service; or (c) if the Customer saves content on the Talon.One’ servers, which violates any laws or infringes on the rights of third parties.

    5. Remedies
    In the event Unscheduled Downtime occurs, Talon.One will undertake commercially reasonable efforts to remedy such Unscheduled Downtime within a commercially reasonable timeframe.  If Talon.One is unable to meet the System Availability standards set forth in Section 2.1 of this Exhibit, Customer shall be entitled to the following service credits (“Service Credits”), provided that the maximum number of Service Credits to be issued by Talon.One to Customer for any and all Unscheduled Downtime shall not exceed one month of service.

    System Availability Talon.One T&C US

    Exhibit C - Data Processing Agreement 

    Preamble
    This Exhibit details the parties’ obligations on the protection of personal data, associated with the processing of personal data on behalf of Controller as a data controller, and described in detail in the Agreement and the Order Form. Its regulations shall apply to any and all activities associated with the Agreement, in whose scope Processor’s employees or agents process Controller’s personal data (hereinafter, “Data”) on behalf of Controller as a controller (hereinafter, “Contract Processing”).

    §1 Scope, duration and specification of contract processing of Data
    (1) The scope and duration and the detailed stipulations on the type and purpose of Contract Processing shall be governed by the Agreement. Specifically, Contract Processing shall include, but not be limited to, the following Data: 

    Data Clusters Talon.One T&C US


    (2) Except where this Exhibit stipulates obligations beyond the term of the Agreement, the term of this Exhibit shall be the term of the Agreement.

    §2 Scope of application and responsibilities
    (1) Processor shall process Data on behalf of Controller. The data processing shall involve carrying out the management and validation of promotions as agreed upon in the Principal Agreement. Within the scope of this Exhibit, Controller shall be solely responsible for compliance with the applicable statutory requirements on data protection, including, but not limited to, the lawfulness of disclosing Data to Processor and the lawfulness of having Data processed on behalf of Controller. Controller shall be the “controller” in accordance with Article 4 no. 7 of the GDPR. 

    (2) Controller’s individual instructions on Contract Processing shall, initially, be as detailed in the Agreement. Controller shall, subsequently, be entitled to, in writing or in a machine-readable format (in text form*), modifying, amending or replacing such individual instructions by issuing such instructions to the point of contact designated by Processor. Instructions not foreseen in or covered by the Agreement shall be treated as requests for changes to the statement of work. Controller shall, without undue delay, confirm in writing or in text form any instruction issued orally.

    §3 Processor’s obligations
    (1) Except where expressly permitted by Article 28 (3)(a) of the GDPR, Processor shall process data subjects’ Data only within the scope of the statement of work and the instructions issued by Controller. Where Processor believes that an instruction would be in breach of applicable law, Processor shall notify Controller of such belief without undue delay. Processor shall be entitled to suspend performance on such instruction until Controller confirms or modifies such instruction.Data transfer control

    (2) Processor shall, within Processor’s scope of responsibility, organize Processor’s internal organization so it satisfies the specific requirements of data protection. Processor shall implement technical and organizational measures to ensure the adequate protection of Controller’s Data, which measures shall fulfil the requirements of the GDPR and specifically its Article 32. Processor shall implement technical and organizational measures and safeguards that ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services. Controller is familiar with these technical and organizational measures, and it shall be Controller’s responsibility that such measures ensure a level of security appropriate to the risk.

    Processor reserves the right to modify the measures and safeguards implemented, provided, however, that the level of security shall not be less protective than initially agreed upon.

    (3) Processor shall support Controller, insofar as is agreed upon by the parties, and where possible for Processor, in fulfilling data subjects’ requests and claims, as detailed in chapter III of the GDPR and in fulfilling the obligations enumerated in Articles 33 to 36 of the GDPR.

    (4) Processor warrants that all employees involved in Contract Processing of Controller’s Data and other such persons as may be involved in Contract Processing within Processor’s scope of responsibility shall be prohibited from processing Data outside the scope of the instructions. Furthermore, Processor warrants that any person entitled to process Data on behalf of Controller has undertaken a commitment to secrecy or is subject to an appropriate statutory obligation to secrecy. All such secrecy obligations shall survive the termination or expiration of such Contract Processing.

    (5) Processor shall notify Controller, without undue delay, if Processor becomes aware of breaches of the protection of personal data within Processor’s scope of responsibility. Processor shall implement the measures necessary for securing Data and for mitigating potential negative consequences for the data subject; the Processor shall coordinate such efforts with Controller without undue delay.

    (6) Processor shall notify Controller the point of contact for any issues related to data protection arising out of or in connection with the Agreement.

    (7) Processor warrants that Processor fulfills its obligations under Article 32 (1)(d) of the GDPR to implement a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing.

    (8) Processor shall correct or erase Data if so instructed by Controller and where covered by the scope of the instructions permissible. Where an erasure, consistent with data protection requirements, or a corresponding restriction of processing is impossible, Processor shall, based on Controller’s instructions, and unless agreed upon differently in the Agreement, destroy, in compliance with data protection requirements, all carrier media and other material or return the same to Controller.

    (9) In specific cases designated by Controller, such Data shall be stored or handed over. The associated remuneration and protective measures shall be agreed upon separately, unless already agreed upon in the Agreement.

    (10) Processor shall, upon termination of Contract Processing and upon Controller’s instruction, return all Data, carrier media and other materials to Controller or delete the same.

    (11) Where a data subject asserts any claims against Controller in accordance with Article 82 of the GDPR, Processor shall support Controller in defending against such claims, where possible.

    §4 Controller’s obligations
    Measures that ensure the establishment of an audit trail to document whether and by whom personal data have been entered into, modified in or removed from the data processing systems. The personal data is being anonymized before the Agent has access to such data.

    Control of instructions
    (1) Controller shall notify Processor, without undue delay, and comprehensively, of any defect or irregularity with regard to provisions on data protection detected by Controller in the results of Processor’s worker. 

    (2) Section 3 para. 11 above of this Exhibit shall apply, mutatis mutandis, to claims asserted by data subjects against Processor in accordance with Article 82 of the GDPR. 

    (3) Controller shall notify to Processor the point of contact for any issues related to data protection arising out of or in connection with the Agreement.

    §5 Enquiries by data subjects
    Where a data subject asserts claims for rectification, erasure or access against Processor, and where Processor is able to correlate the data subject to Controller, based on the information provided by the data subject, Processor shall refer such data subject to Controller. Processor shall forward the data subject’s claim to Controller without undue delay. Processor shall support Controller, where possible, and based upon Controller’s instruction insofar as agreed upon. Processor shall not be liable in cases where Controller fails to respond to the data subject’s request in total, correctly, or in a timely manner.

    §6 Options for documentation
    (1) Processor shall document and prove to Controller Processor’s compliance with the obligations agreed upon in this Exhibit by appropriate measures.

    (2) Where, in individual cases, audits and inspections by Controller or an auditor appointed by Controller are necessary, such audits and inspections will be conducted during regular business hours, and without interfering with Processor’s operations, upon prior notice, and observing an appropriate notice period. Processor may also determine that such audits and inspections are subject to prior notice, the observation of an appropriate notice period, and the execution of a confidentiality undertaking protecting the data of other customers and the confidentiality of the technical and organizational measures and safeguards implemented. Processor shall be entitled to reject auditors which are competitors of Processor. 

    Controller hereby consents to the appointment of an independent external auditor by Processor, provided that Processor provides a copy of the audit report to Controller.

    Processor shall be entitled to request a remuneration for Processor’s support in conducting inspections where such remuneration has been agreed upon in the Agreement. Processor’s time and effort for such inspections shall be limited to one day per calendar year, unless agreed upon otherwise.

    (3) Where a data protection supervisory authority or another supervisory authority with statutory competence for Controller conducts an inspection, para. 2 above of this Exhibit shall apply mutatis mutandis. The execution of a confidentiality undertaking shall not be required if such supervisory authority is subject to professional or statutory confidentiality obligations whose breach is sanctionable under the applicable criminal code.

    §7 Subcontractors (further processors on behalf of Controller)
    (1) Processor shall use subcontractors as further processors on behalf of Controller only where approved in advance by Controller.

    (2) A subcontractor relationship shall be subject to such consent of Processor commissioning further Processor or subcontractors with the performance agreed upon in the Agreement, in whole or in part. Processor shall conclude, with such subcontractors, the contractual instruments necessary to ensure an appropriate level of data protection and information security.

    Processor will conduct the performance agreed upon, or the parts of the performance identified below, using the subcontractors enumerated below:

    Subcontractors Talon.One T&C US


    Controller hereby consents to Processor’s use of subcontractors. Processor shall, prior to the use or replacement of subcontractors, inform Controller thereof.

    (3) Where Processor commissions subcontractors, Processor shall be responsible for ensuring that Processor’s obligations on data protection resulting from the Agreement and this exhibit are valid and binding upon subcontractor.

    §8 Obligations to inform, mandatory written form, choice of law
    (1) Where the Data becomes subject to search and seizure, an attachment order, confiscation during bankruptcy or insolvency proceedings, or similar events or measures by third parties while in Processor’s control, Processor shall notify Controller of such action without undue delay. Processor shall, without undue delay, notify to all pertinent parties in such action, that any data affected thereby is in Controller’s sole property and area of responsibility, that data is at Controller’s sole disposition, and that Controller is the responsible body in the sense of the GDPR.

    (2) No modification of this Exhibit and/or any of its components – including, but not limited to, Processor’s representations and warranties, if any – shall be valid and binding unless made in writing or in a machine-readable format (in text form), and furthermore only if such modification expressly states that such modification applies to the regulations of this Exhibit. The foregoing shall also apply to any waiver or modification of this mandatory written form.

    (3) In case of any conflict, the data protection regulations of this Exhibit shall take precedence over the regulations of the Agreement. Where individual regulations of this Exhibit are invalid or unenforceable, the validity and enforceability of the other regulations of this Exhibit shall not be affected.

    §9 Liability and damages
    Controller and Processor shall be liable to data subject in accordance with Article 82 of the GDPR. 

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