Date: 29 March 2019
1.1 — By using the Achoo services, the Customer is agreeing to be bound by these terms of services, unless the terms have been expressly deviated from or modified through another written agreement between both Parties. A final agreement between the Customer and Achoo is considered to have been finally concluded on these terms when the Customer has accepted the terms electronically or otherwise accepted to Achoo in writing. None of the Customer rights and entitlements in these terms and conditions shall however apply for free trial programs and pilots as the rights and entitlements are considered valid for purchasing subscriptions only.
1.2 — Achoo reserves the right to update and modify these terms and in such case the Customer may subscribe to the new terms or maintain their notice period corresponding to their subscription period, limited to 12 months after which the new terms apply.
2 Achoo services
2.1 — Achoo provides on-line cloud services, included in the Achoo Influencer Platform, as described on the website of Achoo, enabling the Customer to work insightfully and effectively with different processes within the influencer marketingworkflow. The Achoo Influencer Platform includes different applications:
(a) Listening: Monitor brand and competitor mentions on influencer platforms. Currently, listening is applicable on Blogs, Instagram and YouTube.
(b) Influencer Discovery: Discover relevant influencers from a continuing growing pool of millions of profiles using powerful filters including audience demographics and influencer data such as country, gender, active social media platforms, reach, engagement, impact and topics of interests.
(c) Influencer Groups: Set up customised groups to manage both existing collaborating influencers but also prospects. Monitor influencers’ activities and add notes to individual influencers for easy tracking of relationship status.
(d) Campaigns: Set up campaigns with brief and requirements. Hereafter, invite and activate relevant influencers. Then track the individual influencers’ as well as overall campaign performance and posts.
(e) Measure: Build customised insightful reporting with a selection of a wide range of reporting modules or simple look at Influencer Insights and Demographic Reports.Reports can be auto-scheduled and downloaded as PDF for easy sharing.
2.2 — Depending on the subscription, Achoo includes different monthly usage limits of the above applications, delivered as a software as a service application: (i) Number ofListening Mentions; (ii) Number of Influencers showing up in each search; (iii)Number of Demographic Reports extracted; (iv) Number of Managed Influencers inGroups; (v) Number of Activated Influencers in Campaigns; and (vi) Number ofReport Exports.
2.3 — At any time Achoo reserves the right to develop and improve its services and product features, including their functionality in such a way as deemed appropriate or necessary by Achoo. Achoo may not suspend or discontinue the subscribed service without informing the Customer with a notice corresponding to their subscription period, unless it’s a matter of short-term maintenance, support and service communicated to the Customer. Achoo may, however, for necessary support or maintenance and/or ongoing innovation and development, limit, change, suspend or discontinue any product feature in relation to the services for any reason, at any time, including the availability of any product feature at its sole discretion without notice or liability. Any changes will be notified to the Customer.
2.4 — Achoo assumes no responsibility for any failure in providing the services and Achoo reserves the right to change any information about Achoo’s services and products or third-party's services and products on the websites of Achoo and others, including partner's websites, in brochures and other materials. Achoo does not warrant the correctness of any images, descriptions of products and servicesand specification of data in Achoo’s material on websites or elsewhere.
3 pricing and payment
3.1 — The use of Achoo Services requires payment of a license subscription based on agreed usage. The following pricing and payment terms are binding, unless the terms have been expressly deviated from or modified through another written agreement between both Parties.
3.2 — All prices are default in Euro (EUR). All prices are exclusive of any taxes, VAT, fees, levies or duties imposed by tax authorities. Achoo reserves the right to change its prices but shall adapt notice to the remaining subscription period.Any price increase at subscription renewal will be agreed upon with the Customer.All payments and billing are non-refundable. Customer purchased services other than the agreed license subscription, are aligned to the price and terms of the purchase. Any separate hours purchased outside of the Achoo default services will be invoiced at EUR 200 per commenced hour.
3.3 — Terms of subscription payment are net cash, yearly up front and in advance of the commencement of the subscription period unless other is agreed. Alternatively, Customers may request different subscription or payment period compared to an annual plan, which will lead to a premium on the annual subscription price. If payment is made through credit card services or similar transaction services, fees will be billed to the Customer.
3.4 — In the event of late payment, Achoo may charge interest from the due date at a rate of 2.5 % per month. Achoo reserves the right to close the Customer's access to Achoo without notice if payment has not been made in time, and after one reminder plus seven working days. If the access is closed, the Customer is still under an obligation to pay until the Customer could have terminated the agreement at the notice specified in clause 12. If the Customer payment is received within the subscription period, and there are no other amounts outstanding, Achoo is obligated to re-open the access.
4 Fair use policy?
4.1 — The use of Achoo is unlimited within the agreed subscription, unless Customer is using the services in an unusual way outside the purpose of the services. In such case Achoo retains the right to limit or halt service to a Customer and the Customer may be contacted by Achoo with a tailored commercial proposal. Achoo acknowledges, that an unusual way outside the purpose of the services might not be intentional and Achoo is obligated to invoke the fair use policy to the Customer if an instance occurs, with one-week notice, to find a mutually agreeable solution, as well as Achoo must document the point of over usage. In the case that there will be no agreeable solution or plan arranged, Achoo can limit or halt services until the situation is resolved.
5.1 — Customers will have access to online support through intercom on Achoo’s website within the Achoo Influencer Platform. Requests shall include a detailed description of the issue. Achoo creates a support case with feedback directly to the sender. Achoo support undertakes to respond and initiate a corrective action process within a reasonable time and no later than the next business day, defined as Monday toFriday Danish time zone from 9:00am to 5:00pm excluding Danish public holidays.
5.2 — Achoo will notify Customers on ongoing roadmap and product launches.
6 Data processing
6.1 — The Customer is Data Controller and has the sole responsibility for the data when using the Achoo services, including to observe the acts on the processing of personal data, and that the actual use of services does not infringe the rights of a third-party, including the employees of the Customer and other data subjects. Achoo is the Data Processor. The subject matter and the purpose of the processing by Achoo is delivery of the service. The personal data processed, and types of data subjects comprises ordinary personal data like names and email addresses of users from the Customer in order to create login details to the Achoo Influencer Platform for the Customer’s users. The processing operations/activities include transfer of data from/to Customer from/to Achoo.
6.2 — Achoo has implemented appropriate technical and organizational measures in such a manner that its processing of personal data will comply with applicable data protection law, in particular Regulation (EU) 2016/679 of the EuropeanParliament and the Council of 27 April 2016 (GDPR) and ensure the protection of the rights of the data subject. Achoo undertakes only to process personal data in accordance with documented instructions communicated by the Customer as DataController, unless required to do so pursuant to the applicable law. In such case Achoo shall, to the extent permitted by law, inform the Customer of that legal requirement before such processing takes place. Achoo shall inform the Customer if Achoo does not have an instruction for how to process personal data in a particular situation or if any instruction infringes the applicable data protection law.
6.3 — Achoo shall, taking into account the nature of the processing, assist the Customer with the fulfilment of the Customer obligation to respond to requests for exercising the data subject's rights, through appropriate technical and organizational measures as possible, given the nature of the processing. The data subject’s rights include hereunder the rights to request information and for personal data to be corrected, blocked or erased at their request. Achoo shall assist the Customer in fulfilling specific obligations under applicable data protection laws, taking into account the nature of the processing and the information available to Achoo. Specific obligations are hereunder pursuant toGDPR art. 32 regarding security of the processing, art. 33 – 34 regarding notification of data breaches and art. 35 – 36 regarding data protection impact assessments and prior consultations.
6.4 — Achoo undertakes to make available to the Customer all information and all assistance necessary to demonstrate compliance with its obligations according to this clause 6 and allow for and contribute to audits, including on-site inspections, conducted by Customer or another auditor mandated by the Customer. Achoo has the obligation to report a personal data breach immediately to the Customer within no later than 48 hours from the breach.
6.5 — Achoo shall maintain adequate security for the personal data hereunder and protect the personal data against destruction, modification, unlawful dissemination, or unlawful access. The personal data shall also be protected against all other forms of unlawful processing. Achoo shall prepare and keep an updated description of its technical, organisational and physical measures to be and maintain compliance with the applicable data protection law. Achoo ensures that any persons involved in the processing of personal data have committed themselves to confidentiality or are under proper statutory obligation of confidentiality.
6.6 — Customer approves that Achoo has retained Google and Amazon as sub processors to host the services. Achoo shall inform the Customer of any intended changes concerning the addition or replacement of sub processors, with a right for the Customer to object. Achoo ensures that sub processors are bound by written agreements that require them to comply with corresponding data processing obligations to those contained in this section. Achoo remains fully liable to the Customer for the performance of the sub processor's obligations regarding data protection.The Customer may request that Achoo audits the sub processor or provides confirmation that such an audit has occurred, or, where available, obtains or assists the Customer in obtaining a third-party audit report concerning sub processor’s operations to ensure compliance with applicable data protection laws. Sub processors of Achoo are always defined as Achoo hosting partners. The data processor gives the possibility for the data controller to link and play content and data in the solution from third-party sub-contractors. In such case the Data Controller decides to make use of this, the Data Processer cannot be the responsible party and data processor responsible.
6.7 — The undertaking of the agreed processing of personal data shall be carried out exclusively within a member state of the European Union (EU) or within a member state of the European Economic Area (EEA). Each and every transfer of personal data to a state which is not a member state of either the EU or the EEA requires the prior written consent of the Customer and shall only occur if the specific conditions in applicable data protection law hereunder of articles 44- 50 of the GDPR have been fulfilled. The Customer can at any time withdraw its consent to third country transfers.
6.8 — This clause 6 shall apply during such time Achoo processes personal data on behalf of the Customer. Upon Customer’s request, termination or expiry of the service,Achoo shall cease its processing activities, and, at the choice of the Customer delete or return all the personal data to the Customer and deletes existing copies of such data, unless otherwise required under the applicable data protection law.
7 Third party services
7.2 — Achoo uses YouTube API Services to access some of the data provided by the AchooInfluencer Platform, as such, by agreeing to Achoo Terms and Conditions, theCustomer also agree to YouTube’s Terms of Services (https://www.youtube.com/t/terms).
8 Intellectual property rights
8.1 — TheCustomer acknowledges and accepts that Achoo is the owner of all rights to the Achoo software and the service used and other intellectual property rights, and that this agreement does not entail an assignment of such rights, but only entails that the Customer can use such rights in compliance with the assumed use in the contract terms and if the Customer pays therefore.
9 Limited liability
9.1 — Irrespective of the basis on which a claim is advanced, hereunder defects, delay, product liability etc. and irrespective the degree of negligence, Achoo and its management and employees are not liable for the Customer’s direct or indirect losses or consequential losses such as, but not limited to, business interruption, loss of profits, loss of data, software, costs in connection with re-establishment and/or updating thereof, loss of goodwill, distortion of messages, loss of expected savings etc. Achoo’s liability for any loss or damage is limited to the amount paid by the Customer for the Achoo services or lack of same, on which the claim is based, however, no more than the sum of six months' subscription payments from the Customer to Achoo.
9.2 — Achoo and its management and employees are under no circumstances liable to the Customer when the following events occur after the conclusion of the agreement and which prevent or postpone the performance of the agreement: Force majeure, such as war and mobilisation, revolution and unrest, acts of terrorism, natural disasters, strikes and lockouts, or other circumstances beyond Achoo’s direct control. In such case, Achoo is entitled to postpone delivery until the performance impediment has ceased or alternatively cancel the agreement without liability/without having to pay damages.
10 Assignments of rights
10.1 — Achoo is entitled to assign all rights and obligations under these terms and any concluded agreement with a Customer to a new contractor, in such case the assigned contractor acquires the majority of Achoo and fullfills the agreement with the Customer. The Customer is not entitled to assign its rights and obligations under the parties' agreement to a third-party without Achoo’s prior acceptance.
11.1 — All communication with Achoo must be in English.
12.1 — Either Party may terminate the agreement at one month's written notice before the end of the subscription period. Payments already made by the Customer, including prepayments or billing, are not reimbursed in the event of termination. If the subscription is not terminated with one month's written notice before the end of the subscription period, Customer accepts that Achoo continues to charge the subscription regardless whether the services are used or not, and automatically renews the subscription if not terminated timely.
12.2 — After expiry of the subscription period, Achoo has the right to delete the Customer data.
13.1 — The Parties undertake for an indefinite period of time to otherwise keep all circumstances secret vis-a-vis any unauthorised third party to which a Party has obtained knowledge about the other Party or its activities as a result of the cooperation.
13.2 — Achoo is entitled to publish Customer logos and confirm to other Parties that the Customer is a Customer of Achoo, if the Customer relationship remains in force.
14 Law and venue
14.1 — Any dispute must be determined in accordance with Danish Law. Each Party submits to the jurisdiction of the District Court of Copenhagen, Denmark. Any dispute will be carried out in Danish and/or the English language.
15.1 — If any part of these terms is deemed to be unlawful and invalid and thus unenforceable, this will not affect the validity and the enforcement of the remaining parts of these terms.
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