SCHEDULE 1 – TERMS AND CONDITIONS FOR SERVICES
1. GENERAL
1.1 Whispr offers insights as a service (IaaS) provided through its platform and related third party services combined with specific insight analysis.
1.2 These terms and conditions shall apply for Whispr’s provision the Service to the Client. The terms and conditions apply unless provided otherwise in the main body of the Agreement
2. DEFINITIONS
2.1 Unless the context or circumstances clearly dictate otherwise, the following words and phrases shall be defined as follows:
Add-on Services
Support services and other services not included in the Service.
Agreed Start Date
The date on which the Service is made available to the Client in accordance with the Agreement.
Client Data
Data or other information that the Client, or another party on the Client’s or a user’s behalf, puts at Whispr’s disposal through the Service.
Deliverables
All Client specific intelligence reports that are produced as a result of the provision of the Service to the Client, and with the content agreed by the parties from time to time.
Service
The service to be provided by Whispr under this Agreement, comprising of the Whispr Platform together with Client specific qualitative customer insight analysis.
Whispr Platform
All software that is reasonably considered to be a component of the insight analysis platform that Whispr uses and offers to its customers from time to time.
3. THE SERVICE
3.1. As from the Agreed Start Date, Whispr grants the Client the non-exclusive right to (i) access the Service and (ii) copy, use and display Deliverables.
3.2 The Deliverables shall be made accessible to the Client through the Whispr Platform. Deliverables will be updated by Whispr as specified in the Agreement.
3.3 Whispr shall provide the Service with due skill and care and in accordance with applicable professional standards.
3.4 Whispr may engage sub-contractors for performance of the Service. Whispr has the same responsibility for work performed by sub-contractors as for Whispr’s own work.
3.5 The Parties may agree to include Add-on Services. The terms and conditions for Services, as set of in this Agreement, shall apply for the Add-on Services.
4. CLIENT’S OBLIGATIONS
4.1 Client shall provide Whispr with such information concerning its operations and activities as Whispr may reasonably require to provide the Service in accordance with this Agreement.
4.2 Client is responsible for using the equipment and software required to use the Service. The Client is responsible for any fault or defect in its own software.
4.3 Client must ensure that (i) Client Data are free from viruses, Trojans, worms or other malicious software or code; (ii) Client Data are in the agreed format; (iii) Client Data otherwise cannot damage or interfere with the Whispr Platform or the Service.
4.4 The Client may not copy software that is included in the Service.
4.5 If the Deliverables require external data from the Client’s suppliers, including third party media monitoring services, the Client must ensure that the required third party agreements are maintained and that Whispr can access the data, unless otherwise agreed. Whispr will provide reasonable resources to connect and interact with such third party providers. Additional troubleshooting or adaption which is required due to the Client or the third party will be charged as an Add-on Service.
4.6 The Client will ensure that Whispr can freely use data from third party agreements in the Deliverables, and will indemnify and hold Whispr harmless from any direct costs, expenses, damages and/or losses resulting from a third party claiming that Whispr’s use of such data in the Deliverables infringes a third party’s intellectual property rights.
5. CHANGES TO THE SERVICE
5.1 Whispr may, without prior notification to the Client, make changes to the Service which do not affect its functionality or otherwise do not impact the Service to a more than insignificant extent.
5.2 Whispr may make other changes to the Service or the method of providing it than those set out in clause 5.1, three months after notifying the Client to this effect. The Client may, at the latest when the change enters into force, terminate the Agreement with effect from the date the change enters into force.
6. SUSPENSIONS OR RESTRICTION OF ACCESS TO THE SERVICE
6.1 If the Client’s use of the Service entails harm or risk of harm to Whispr, Whispr may, without violating any of its obligations under this Agreement, suspend or restrict access to the Service. Whispr may, in so doing, not take any other action than is justifiable in the circumstances. The Client shall be informed as soon as it is possible if the access to the Service is suspended or restricted.
6.2 Whispr may, in addition, take measures that affect the accessibility of the Service if this is required for technical, maintenance, operational or security reasons. Whispr shall take such measure promptly, and in such a way as to limit any disturbances. Whispr undertakes to inform the Client within a reasonable period of time before such action and, if possible, to plan such action to be carried out outside of normal office hours.
7. DATA PRIVACY
7.1 Whispr takes its customer’s privacy seriously and is committed to the protection of personal data.
7.2 Whispr is a data controller and ensures that the personal data it holds is processed in accordance with the standards set by the General Data Protection Regulation (GDPR). It does not process personal data on behalf of the Client and consequently, no data processing agreement is entered into between Whispr and the Client.
7.3 To offer the Service, Whispr may collect and use certain personal data of the Client and its employees. Such information may include information provided by the Client or its employees when using the Whispr Platform, such as name, email, credentials, and information generated by the use of the Whispr Platform (IP addresses, browser information, usage and similar information). Whispr process such personal data in order to fulfil its obligations under this Agreement.
7.4 If requested by the Client, the Deliverables may also include personal data concerning data subjects whose data has been discovered in the qualitative customer insight analysis. Whispr and the Client are both data controllers in relation to their respective processing activities concerning such personal data.
7.5 If the Client requires that Whispr evaluates marketing collaborations between the Client and “influencers” (individuals) who are paid or otherwise compensated, the Client is responsible for notifying and, if need be, to collect consent of said individuals on behalf of Whispr, in accordance with the GDPR, since Whispr lacks the contact information of the individuals.
7.6 The latest privacy policy, which describes the rights of data subjects and the processing activities of Whispr, can be found at https://whisprgroup.com/privacy-policy.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Whispr and/or Whispr’s licensors hold all rights, including intellectual property rights to any software included in the Service, including the Whispr Platform.
8.2 The Client obtains a non-exclusive, worldwide, perpetual right of use to the Deliverables, however solely for its internal business purposes. The Client may not transfer or allow access to the Deliverables to third parties.
8.3 Whispr shall defend, fully indemnify and hold the Client harmless from any direct costs, expenses, damages and/or losses resulting from a third party claiming that Client’s use of the Service (or part thereof) infringes such third party’s intellectual property rights.
8.4 In the event of actual infringement, Whispr shall promptly at its own expense either (a) secure Client’s right to continue to use the Service, or (b) replace the infringing item to the extent required to ensure non-infringement, provided that following such replacement the provisions of the Agreement remain fulfilled.
8.5 The indemnification obligations in clause 8.3 shall only apply if:
(a) Whispr is informed by the Client in writing within a reasonable time of the claim that has been made, or the action that has been brought; and
(b) Whispr may solely determine the defense against such an action and conduct negotiations for an agreement or settlement.
8.6 Whispr shall not be obliged to indemnify the Client or to defend any claims to the extent that such obligation would arise as a result the Client using the Service in breach of this Agreement, or in relation to data provided by the Client or its suppliers under clause 4.5.
9. CONFIDENTIALITY
9.1 The Parties hereby undertake, during the term of the Agreement and thereafter, not to disclose to any third party information regarding the Agreement, nor any other information which the Parties have learned as a result of the Agreement, whether written or oral and irrespective of form (“Confidential Information”). The Parties agree and acknowledge that the Confidential Information may be used solely for the fulfilment of the obligations under the Agreement and not for any other purpose.
9.2 This confidentiality undertaking does not apply to information which
(a) at the date of its disclosure is in the public domain or at any time thereafter comes into the public domain (other than by breach of this Agreement); or
(b) the receiving Party can evidence was in its possession or was independently developed at the time of disclosure and was not obtained, directly or indirectly, by or as a result of breach of a confidentiality obligation.
(c) the receiving Party are obliged to disclose by applicable law, rule, regulation, stock exchange rules, judicial or governmental order, legal or regulatory process, judicial, administrative or regulatory proceedings, or other similar process.
9.3 Unless otherwise agreed, Whispr shall be entitled to refer to the Client as a client in external communication, and to publish the Client’s name and logo on its website and in other external communication, unless otherwise agreed upon in writing by both Parties.
10. PRICE AND PAYMENT TERMS
10.1 For Whispr’s performance of the Service, the Client shall pay the fee set out in the Agreement. The fee shall be invoiced yearly in advance, as of the Agreed Start Date. Payments shall be made within 20 days from the date of invoice, unless otherwise agreed upon by both Parties in writing.
10.2 Add-on Services are charged in accordance with Whispr’s at any time applicable price list, or at the prices offered by Whispr in each case. Whispr’s reasonable costs for travel and accommodation related to the Service or Add-on Services will be reimbursed by the Client. Travel time to and from the Client is charged at Whispr’s regular hourly rate.
10.3 Work outside the agreed scope of the Deliverables which is ordered by the Client will be charged as an Add-on Service. This may include additional presentations and preparation of new templates for Deliverables based on the Client’s request. Any additional work due to change of the scope of the Deliverables will also be charged as an Add-on Service.
10.4 The fees are exclusive of VAT, other taxes and duties, and charges.
10.5 In case of a delay in payment, default interest and other compensation shall be paid in accordance with law. In addition, if the Client is late in making payment and Whispr has requested in writing that the Client must pay the amount due, Whispr may, thirty (30) days after a written request to the Client withhold further provision of the Service until the Client has paid all amounts due and outstanding or, at Whispr’s discretion, terminate the Agreement with immediate effect.
10.6 Whispr may assign or sell Client invoices to third parties.
10.7 As from the start of each calendar year, Whispr may adjust all fees under the Agreement in accordance with the changes in the Labour Cost Index (LCI) for office workers, private sector, according to SNI 2007, preliminary figures for Category J (Information and communication enterprises), published by Statistics Sweden (SCB) (or, if this index no longer exists, the closest comparable index to replace the above).
10.8 Whispr reserves the right to adjust the fees under this Agreement to account for any extra cost or increased cost incurred in providing the Services as a result of any change of applicable rules or regulations or price increases by suppliers of third party applications included in the Whispr Platform.
11. CLIENT DATA
11.1 In the relationship between the Client and Whispr, the Client is the holder of all rights pertaining to Client Data. Whispr is granted a right to use Client Data to perform and, for Client Data that is not personal data do develop the Services.
11.2 The Client is liable for, and shall indemnify and hold the Supplier harmless from and against, any infringement by Client Data of any third party right or any other noncompliance with applicable law.
12. TERMINATION
12.1 Either Party shall be entitled to terminate this Agreement with immediate effect where:
(i) the other Party materially breaches its obligations under this Agreement and has failed to remedy the breach within thirty (30) days after written notice to it from the other Party with reference to this clause; or
(ii) the other Party is placed into bankruptcy, commences composition proceedings, or is insolvent.
12.2 Whispr will store Client Data for 30 days after termination, after which Whispr will delete the Client Data. If requested by the Client before this time, Whispr will assist with exporting Client Data from the Whispr Platform.
12.3 For the termination to be valid, it needs to be terminated by either Party with written notice to the other Party.
13. WARRANTY AND LIMITATION OF LIABILITY
13.1 Apart from what is explicitly set forth in the Agreement, Whispr makes no warranties, representation or guarantees, explicit or implied, relating to the Service.
13.2 Unless otherwise follows from the Agreement, Whispr’s liability for faults or non- performance does not include faults or defects caused by the circumstances set out below:
(c) Client’s use of the Service in breach of the Agreement,
(d) Other circumstances for which the Client is responsible under the Agreement,
(e) Circumstances beyond Whispr’s area of responsibility for the Service, including circumstances under clause 13;
(f) A virus or other security interference provided that Whispr has implemented security measures in accordance with any agreed requirements or, in the absence of such requirements, in accordance with professional standards.
13.3 Neither Party shall be liable under this Agreement to compensate the other Party for any indirect damages, including but not limited to loss of profits or business. Whispr shall not be liable for any loss of data, except in respect of possible loss of data caused by Whispr’s negligence in performing its agreed commitments regarding backup copying.
13.4 The liability of either Party under the Agreement is limited, per calendar year, to a total sum equal to 100 percent of the annual fee for the Service.
13.5 The limitation of liability in this clause does not apply in the event of intent or gross negligence.
13.6 A Party does not have the right to make a claim for damages, unless such claim is made within six (6) months from the time the damage occurred.
14. FORCE MAJEURE
Whispr shall be entitled to forthwith suspend performance of its obligations under this Agreement to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the control of Whispr such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this clause.
15. MISCELLANEOUS
15.1 During the term of the Agreement and for a period of six months thereafter, the Client undertakes to refrain from attempting to solicit any individual who is employed by Whispr and with whom the Client had contact in connection with the provision of the Service.
15.2 Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party.
15.3 Changes or amendments to this Agreement shall, to be valid, be agreed upon in writing and signed by authorized signatories of both Parties.
15.4 Any omission by either Party to exercise its rights and remedies under this Agreement on any occasion shall not constitute a waiver of such rights and remedies on other occasions. Any waiver must be made in writing in order to be valid.
15.5 This Agreement constitutes the entire agreement between the Parties on the subject matter of this Agreement and supersedes any previous written or oral agreement between the Parties in relation to the subject matter dealt with herein.
15.6 If any term or provision in this Agreement shall be held to be illegal or unenforceable, in whole or in part, such term or provision or part shall to that extent be deemed not to form a part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected, provided that the remaining terms of the Agreement shall be reasonably adjusted to redress any imbalance caused by such unenforceability.
16. GOVERNING LAW
The Agreement shall be governed by and construed in accordance with Swedish law, without any reference to its conflict of law principles.
17. DISPUTES
Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce.
The place of arbitration shall be Stockholm, Sweden, if Whispr’s Party is Whispr Group Sverige AB (556700-6613).
If Whispr’s Party is Whispr’s Norwegian or US subsidiaries, the place of arbitration will be in either Oslo, Norway or New York City, USA, respectively, and the arbitration shall be held in English.