Terms of service
Terms of Service
These
Terms of Service are a contract between you and datawalk. By using the Services
of datawalk you are bound to agree to the following Terms of Use. If a user
invalidates any of the terms outlined below, we reserve the right to cancel
accounts or suspend access to accounts without notice. If you do not agree to
these terms, please do not use our Services. datawalk reserves the right to
update and modify the Terms of Use at any time without notice. New features that
may be added to the Service shall be subject to the Terms of Use. Should you
continue to use the Service after any such modifications have been made, this
shall constitute your agreement to such modifications.The datawalk logo is a
trademark of datawalk.
1
– Account Terms
You
must complete all details required in the order form as part of the onboarding
process. You are responsible for maintaining the privacy and security of your
account. datawalk will not be held liable for any damage or loss that may result
from your failure to protect your login information, including your password.
datawalk may communicate with you via email regarding your account, system
updates, or other issues related to your account.You are responsible for all
content when creating your account. You may not use datawalk for any illegal or
unauthorized purpose.datawalk may refuse service to anyone for any reason at any
time.
2 – Payment and Access
Direct
Debit, Standing Order and Credit Card are our accepted forms of payment. Unless
otherwise stated, upon order, the first months service is due, along with any
quoted set up fees upfront to proceed with the order. Should you upgrade or
downgrade the number of licences required, you will be charged your new billing
rate immediately for upgrades and at your next billing date for downgrades.The
datawalk service is billed in advance in accordance with our pricing schedule and
all monthly payments are non-refundable.There will be no refunds or credits for
partial months of service, upgrade/downgrade refunds, or refunds for months unused
with an open account. In order to treat everyone equally, no exceptions will be
made.All fees are exclusive of all taxes, levies, or duties imposed by taxing
authorities, and you shall be responsible for payment of all such taxes, levies,
or duties. You agree to pay for any such taxes that might be applicable to your
use of datawalk and payments made by you herein.
3
– Modifications to the Service and Fee
datawalk
reserves the right to modify, suspend, or discontinue the Service at any time for
any reason with or without notice. datawalk reserves the right to change our
monthly/annually fees upon 30 days notice from us. Fee changes will be notified by
email to all our subscribers.datawalk reserves the right to update and change the
Terms of Service from time to time without notice. Any new features that augment
or enhance the current Service, including the release of new tools and resources,
shall be subject to the Terms of Service.
4
– Cancellation and Termination
An
email to info@dwalk.co.uk
is required to cancel the service 30 days before the end of the agreed licence
term. Should this term have expired and you are now on a rolling contract, the
licence shall be cancelled 30 days after receipt of the email. You will remain
liable for all charges accrued up to that time and to the end of the given period
stated. Any cancellation of your account will result in the deactivation or
deletion of your account on the specified date given in response to your
cancellation email, and you will forfeit and relinquish all content in your
account. This information cannot be recovered from datawalk once your account is
cancelled. datawalk reserves the right to (i) modify or discontinue, temporarily
or permanently, the Service (or any part thereof) and (ii) refuse any and all
current and future use of the service, suspend or terminate your account (any part
thereof) or use of the Service and remove and discard any of your content in the
service, for any reason, including if datawalk believes that you have violated
these Terms of Use.datawalk will use all reasonable efforts to contact you
directly via email to warn you prior to suspension or termination of your account.
Any suspected fraudulent, abusive, or illegal activity that may be grounds for
termination of your use of service, may be referred to appropriate authorities.
datawalk shall not be liable to you or any third party for any modification,
suspension or discontinuation of the service.
5
– Copyright and Ownership
datawalk
or its suppliers own the intellectual property rights to any and all protectable
components of the service, including but not limited to the name of the service,
artwork and end-user interface elements contained within the service, and many of
the individual features. You may not copy, modify, adapt, reproduce, distribute,
reverse engineer, decompile, or disassemble any aspect of the service which
datawalk or its suppliers own.datawalk claims no intellectual property rights
over the content you upload or provide to the service.
6
– General Conditions
Your
use of the service, including any content, information or functionality contained
within it, is provided “as is” and “as available” with no representations or
warranties of any kind, either expressed or implied, including but not limited to,
the implied warranties of merchantability, fitness for a particular purpose, and
non-infringement. You assume total responsibility and risk for your use of these
service.You agree not to resell, duplicate, reproduce or exploit any part of the
service without the express written permission of datawalk.You agree not to
export or collect, by any electronic or other means, email addresses or other
information of other users of the service for the purpose of sending emails or
other unsolicited correspondence unless they have given you this data for that
purpose.You agree not to act in a way that risks damaging, deactivating, or
overloading the service or its infrastructure.You agree not to distribute anything
containing a computer virus or any code, file or software program intended to
interrupt, destroy or limit the functionality of the service or its
infrastructure.You agree to comply with all applicable legal terms and conditions
of other products and services offered in datawalk.datawalk makes no warranties
regarding (i) your ability to use the service, (ii) your satisfaction with the
service, (iii) that the service will be available at all times, uninterrupted, and
error-free (iv), the accuracy of mathematical calculations performed by the
service, and (v) that bugs or errors in the service will be corrected. datawalk
and its affiliates and its sponsors are neither responsible nor liable for any
direct, indirect, incidental, consequential, special, exemplary, punitive or other
damages arising out of or relating in any way to your use of the service. Your
sole remedy for dissatisfaction with the service is to stop using the service.To
the extent that datawalk processes any personal data that is subject to the
General Data Protection Regulation (or GDPR), on your behalf, in the provision of
the services, the terms of the datawalk Data Processing Section shall apply.If
any provision of the Terms of Use is held invalid or otherwise unenforceable, the
enforceability of the remaining provisions shall not be impaired thereby.datawalk
may, but have no obligation to, remove content and accounts containing content
that we determine in our sole discretion are unlawful, offensive, threatening,
libelous, defamatory, pornographic, obscene or otherwise objectionable or violates
any party’s intellectual property or these Terms of Use.The failure of datawalk
to exercise any right provided for herein shall not be deemed a waiver of any
right hereunder. The Terms of Use sets forth the entire understanding between you
and datawalk as to the service and supersedes any prior agreements between you
and datawalk (including, but not limited to, prior versions of the Terms of
Use).Any questions regarding the Terms of Use should be addressed to info@dwalk.co.uk
7
– Law
Unless
otherwise required by law – and which shall only be applied strictly for its
intended purpose, it is expressly agreed that UK law shall be the law applicable
to these Terms of Use and any litigation between you and datawalk related to the
use of the datawalk service shall be submitted to a court in the UK. If for any
reason a court finds any provision or portion of the Terms of Service to be
unenforceable, the remainder of the Terms of Service will continue in full force
and effect.
8 – Data Processing
This
section is intended to satisfy the requirements of Article 28(3) of the GDPR and,
prior to the date on which the GDPR takes effect, the requirements of Article
17(3) of the EU Data Protection Directive (95/46/EC).
Data
Processing Statement
1.1. Definitions
1.1
For the purposes of this section:
1.1.1. “Customer Personal Data” means the Personal Data described under appendix i
of this section, in respect of which the Customer is the Controller;
1.1.2. “Data Protection Legislation” means all applicable legislation relating to
data protection and privacy including without limitation the EU Data Protection
Directive 95/46/EC and Directive 2002/58/EC and all local laws and regulations
which amend or replace any of them, including the GDPR, together with any national
implementing laws in any Member State of the European Union or, to the extent
applicable, in any other country, as amended, repealed, consolidated or replaced
from time to time;
1.1.3. “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the
European Parliament and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data and on the free
movement of such data; and
1.1.4. “Personal Data”, “Data Subject”, “Personal Data Breach”, “Process”,
“Processor” and “Controller” will each have the meaning given to them in the
GDPR.
1.2. Capitalized terms not otherwise defined herein shall have the meaning given
to them in the Agreement.
2.
Processing of Customer Personal Data
2.1.
For all solutions, the parties acknowledge and agree that Customer is the
Controller of Customer Personal Data and datawalk is the Processor of that data.
datawalk will only Process Customer Personal Data as a Processor on behalf of and
in accordance with the Customer’s prior written instructions and for no other
purpose. datawalk is hereby instructed to Process Customer Personal Data to the
extent necessary to enable datawalk to provide the Services in accordance with
the Agreement.
2.2.
If datawalk cannot process Customer Personal Data in accordance with Customer’s
instructions due to a legal requirement under any applicable European Union or
Member State law, datawalk will (i) promptly notify the Customer of such
inability, providing a reasonable level of detail as to the instructions with
which it cannot comply and the reasons why it cannot comply, to the greatest
extent permitted by applicable law; and (ii) cease all Processing of the affected
Customer Personal Data (other than merely storing and maintaining the security of
the affected Customer Personal Data) until such time as the Customer issues new
instructions with which datawalk is able to comply. If this provision is invoked,
datawalk will not be liable to the Customer under the Agreement for failure to
perform the Services until such time as the Customer issues new instructions.
datawalk will immediately inform Customer if, in its opinion, an instruction from
Customer infringes the Data Protection Legislation.
2.3 Each of the Customer and datawalk will comply with their respective
obligations under the Data Protection Legislation. Customer shall ensure that
Customer has informed its data subjects and obtained (or will obtain) all rights
and consents (if required by the applicable Data Protection Legislation) to allow
datawalk to Process Customer Personal Data to provide the Services in accordance
with this Section and the Agreement.
2.4. In connection with the performance of the Agreement, Customer authorizes
datawalk to transfer Customer Personal Data from the European Economic Area
(“EEA”) to the United States. datawalk has certified to the EU-U.S. and
Swiss-U.S. Privacy Shield frameworks as administered by the U.S. Department of
Commerce and commits to comply with its obligations for the Customer Personal Data
transferred under the Privacy Shield throughout the term of this
section.
3.
Confidentiality
3.1.
datawalk will ensure that any person whom datawalk authorizes to Process
Customer Personal Data on its behalf is subject to confidentiality obligations in
respect of that Customer Personal Data.
4.
Security Measures
4.1.
datawalk will implement appropriate technical and organisational measures to
protect against accidental or unlawful destruction, loss, alteration, unauthorized
disclosure of, or access to Customer Personal Data.
4.2. datawalk will, at the Customer’s request and subject to the Customer paying
all of datawalk’s fees at prevailing rates, and all expenses, provide the
Customer with reasonable assistance as necessary for the fulfilment of the
Customer’s obligation to keep Customer Personal Data secure.
5.
Sub-Processing
5.1.
Customer authorizes datawalk to appoint sub-Processors to perform specific
services on datawalk’s behalf which may require such sub-Processors to Process
Customer Personal Data. If datawalk engages a sub-Processor to Process any
Customer Personal Data, it will:
inform Customer of any intended changes concerning the addition or replacement of
such sub-Processors and Customer will have an opportunity to object to such
changes on reasonable grounds within thirty (30) calendar days after being
notified. If the parties are unable to resolve such objection, either party may
terminate the agreement by providing written notice to the other party;
and
enter into a binding written agreement with the sub-Processor that imposes on the
sub-Processor the same obligations that apply to datawalk under this Addendum.
Where any of its sub- Processors fails to fulfil its data protection obligations,
datawalk will be liable to the Customer for the performance of its
sub-Processors’ obligations.
6.
Data Subject Rights
6.1.
datawalk will, at the Customer’s request and subject to the Customer paying all
of datawalk’s fees at prevailing rates, and all expenses, provide the Customer
with assistance necessary for the fulfilment of the Customer’s obligation to
respond to requests for the exercise of Data Subjects’ rights. datawalk shall not
respond to such requests without Customer’s prior written consent and written
instructions. Customer shall be solely responsible for responding to such
requests.
7.
Personal Data Breaches
7.1.
datawalk will notify the Customer as soon as practicable after it becomes aware
of any of any Personal Data Breach affecting any Customer Personal Data. At the
Customer’s request and subject to the Customer paying all of datawalk’s fees at
prevailing rates, and all expenses, datawalk will promptly provide the Customer
with all reasonable assistance necessary to enable the Customer to notify relevant
security breaches to the competent data protection authorities and/or affected
Data Subjects, if Customer is required to do so under the GDPR. Customer is solely
responsible for complying with data incident notification requirements applicable
to Customer and fulfilling any third-party notification obligations related to any
data incidents.
8.
Data Protection Impact Assessment; Prior Consultation
8.1.
datawalk will, at the Customer’s request and subject to the Customer paying all
of datawalk’s fees at prevailing rates, and all expenses, provide the Customer
with reasonable assistance to facilitate:
conduction of data protection impact assessments if the Customer is required to do
so under the GDPR; and
consultation with data protection authorities, if the Customer is required to
engage in consultation under the GDPR,in each case solely to the extent that such
assistance is necessary and relates to the Processing by datawalk of the Customer
Personal Data, taking into account the nature of the Processing and the
information available to datawalk.
9.
Deletion of Customer Personal Data
9.1.
datawalk will return or delete, at Customer’s choice, Customer Personal Data to
the Customer after the end of the provision of Services relating to the
Processing, and delete existing copies unless the applicable European Union or
member state law requires storage of the data.
10.
Information
10.1.
datawalk will, at Customer’s request and subject to the Customer paying all of
datawalk’s fees at prevailing rates, and all expenses, provide the Customer with
all information necessary to enable the Customer to demonstrate compliance with
its obligations under the GDPR, and allow for and contribute to audits, including
inspections, conducted by the Customer or an auditor mandated by the Customer, to
the extent that such information is within datawalk’s control and datawalk is
not precluded from disclosing it by applicable law, a duty of confidentiality, or
any other obligation owed to a third party, and provided that such audits shall be
carried out with reasonable notice during regular business hours not more often
than once per year.
11.
Liability
11.1.
Each party’s liability towards the other party under or in connection with this
Addendum will be limited in accordance with the provisions of the
Agreement.
11.2. The Customer acknowledges that datawalk is reliant on the Customer for
direction as to the extent to which datawalk is entitled to Process Customer
Personal Data on behalf of Customer in performance of the Services. Consequently
datawalk will not be liable under the Agreement for any claim brought by a Data
Subject arising from any action or omission by datawalk, to the extent that such
action or omission resulted directly from the Customer’s instructions or from
Customer’s failure to comply with its obligations under the applicable data
protection law.
12.
General Provisions
12.1.
With regard to the subject matter of this section, in the event of inconsistencies
between the provisions of this section and the Agreement, the provisions of this
section shall prevail (except
with WhatsApp messaging services, whereby customer-to-ISV provider will
prevail).
Appendix
i – Details of the Processing Activities
Categories of Data Subjects:
Prospects
and customers of the Customer;
Customer’s Users authorized by Customer to use the Services;
Employees or contact persons of Customer’s prospects, customers, business partners
and vendors; and
End users: individuals who interact with the Customer by way of the datawalk
communication platform.
Type
of Personal Data:
Customer may submit Personal Data to the Services, the extent of which is
determined and controlled by Customer in its sole discretion
Subject-Matter
and Nature of the Processing:
The subject-matter of Processing of Customer Personal Data is the performance of
the Services pursuant to the Agreement. Customer Personal Data will be stored by
datawalk and subject to those Processing activities which are necessary for the
performance of the Services pursuant to the Agreement.
Purpose
of the Processing:
Customer Personal Data will be Processed by datawalk for purposes of providing
the Services set out into the Agreement and any applicable statement of
work.
Duration
of the Processing:
Customer Personal Data will be Processed for the duration of the Agreement,
subject to Section 9 of this section.