1. Your relationship with Emplifi
1.1 Your use of Emplifi’s products, services, content and web sites (referred to collectively as the “Service” or “Services” in this document and excluding any services provided to you or your employees by Emplifi under a separate written agreement) is subject to the terms of a legal agreement between you and Emplifi (as defined below in Section 18.1) contained in this document and/or any other document expressly referred to herein. The Services are accessed through Emplifi’s proprietary software application(s) (referred to as the “Software” below) hosted at our web platform at www.emplifi.io and consist in a single log-in, centralised web dashboard that enables you to access data, metrics and analytics from social profiles on multiple social networks. The Services are provided as “Software as a Service (SaaS)” subscription services and we will not deliver copies of the Software to you as part of the Services. This document explains how the agreement is made up and sets out some of the terms of that agreement. These terms and conditions will not apply if (i) you or your organization (on whose behalf you act pursuant to Section 2.3 and 18.1) have entered into a separate written agreement with us for the Services, such as, for example, a Emplifi Binding Order that references other Emplifi’s terms of Service, or any other written agreement for the provision of our Services, or (ii) you or your organization have purchased the Services through our authorised reseller.
1.2 Unless otherwise agreed in writing with Emplifi, your agreement with Emplifi will always include, at a minimum, the terms and conditions set out in this document (the “General Terms”).
1.3 Your agreement with Emplifi will also include all subscription rates and payment terms applicable to the Services chosen by you (the “Payment Terms”). The Payment Terms, including any related additional terms applicable to your subscription, are published on Emplifi website or are otherwise made available to you either within, or through your use of, the Service you subscribe to.
1.4 The General Terms, together with the Payment Terms, form a legally binding agreement between you and Emplifi in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
2. Accepting the Terms
2.1 In order to use the Services, you must firstly agree to the Terms. You may not use the Services if you do not accept the Terms.
2.2 You can accept the Terms by (A) clicking to accept or agree to the Terms, where this option is made available to you by Emplifi in the user interface for any Service; (B) by payment for the Services; or (C) by actually using the Services. By performing one of these three options, you understand and agree that Emplifi will treat your use of the Services as acceptance of the Terms from that point onwards.
2.3 You may not use the Services and may not accept the Terms if (A) you are not of legal age to form a binding contract with Emplifi; or (B) when contracting on behalf of an entity, you are not authorized to legally bind your company or organization to such terms; or (C) you are a person or entity barred from receiving the Services under the laws of the Czech Republic or other countries including the country in which you are resident or from which you use the Services.
2.4 If you accept the Terms in the user interface for a Service, by making a payment, or by commencing the use of the Service, we recommend that you print off or save a local copy of the Terms for your records before you continue.
2.5 The Services are provided by Emplifi for consideration. The up-to-date prices applicable to your use of the Services are published on the Services website www.emplifi.io for configurations of the Services eligible for online purchase and by using the Services at a particular moment you agree to the prices published as of that moment.
2.6 You can pay for the Services either by entering your credit card information, or by any other means as published, from time to time, on the Services website. Alternatively, you can contact us to agree on other methods of payment (such as invoicing). If you sign up for the Services online in the user interface for the Service, you agree that you will be charged periodically by Emplifi pursuant to the payment conditions specified at checkout. In addition, you expressly acknowledge and agree that the initial price may change if you upgrade or change your subscription plan within the Service. You will always be informed about the price modification prior to making the upgrade or changing your subscription.
2.7 Emplifi is not responsible for the payment processing provided by any third party.
2.8 The prices exclude any and all applicable taxes and similar fees (other than taxes solely based on Emplifi’s income) now in force or imposed in the future on provision of the Services, including any sales, use or value added taxes, services tax or withholding tax, and you shall be responsible for payment of all such taxes.
3. Language of the Terms
3.1 The Terms are provided in English. If Emplifi has provided you with a translation of the English language version of the Terms, you agree that the translation is provided only for your convenience, and that the English language versions of the Terms will govern your relationship with Emplifi.
3.2 If there is any contradiction between what the English language version of the Terms says and what a translation says, then the English language version shall take precedence.
4. Provision of the Services by Emplifi
4.1 Emplifi may have subsidiaries and affiliated legal entities in other countries. At times, these companies or their employees may serve as contact points with respect to the Services provided to you by Emplifi. Even where Emplifi’s subsidiaries or affiliates are your primary contact points, Emplifi as the Services provider will remain ultimately responsible for the provision of Services hereunder.
4.2 Emplifi is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services may change from time to time without prior notice to you as long as such change does not result in material degradation of the Services.
4.3 As part of this continuing innovation, you acknowledge and agree that Emplifi may permanently or temporarily stop providing the Services (or any features within the Services) to you or to users generally at Emplifi’s sole discretion, without prior notice to you.
4.4 You understand and agree that Emplifi may at its full discretion, without any liability to you and subject to giving you a prior notice, suspend access to your account for (i) delay with any payment (including delay resulting from your failure to provide valid billing details) or (ii) other breach of the Terms if such breach is material, and that in such case you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account. If we suspend your access to the Services for delayed payment or other (material) breach of the Terms, and subsequently reactivate it (e.g. after the breach has been cured), you still remain obliged to pay the Services fees for the entire subscription term including the period for which you could not access the Services as a result of your default; you will not be entitled to any compensation or refunds (whether monetary or in the form of an extended subscription term) for the period for which you could not use the Services. Such suspension of Service shall not be considered a breach of the Terms by Emplifi. Further, the foregoing shall not in any way prejudice or prevent Emplifi from exercising its right to terminate the legal agreement embodied in the Terms for material breach pursuant to Section 12.3 of the Terms.
5. Your use of the Services
5.1 To access the Services, you or your individual end-users may be required to provide identification, contact or similar details) as part of the registration process for the Service or as part of your continued use of the Services. You agree that any registration information you give to Emplifi will always be accurate, correct and up to date.
5.2 You agree to use the Services only for purposes that are permitted by (A) the Terms; (B) any applicable law, regulation, generally accepted practices, or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the EU, the United States or other relevant countries); and (C) any other applicable rules (including, without limitation, Facebook, Twitter and other social media platform rules).
5.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Emplifi, unless you have been specifically allowed to do so in a separate written agreement with Emplifi.
5.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
5.5 Unless you have been specifically permitted to do so in a separate agreement with Emplifi, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. The Services can be used by you only for your own internal business purposes. You may not use the Services for the benefit of any third parties. You acknowledge that use of the Services in breach of this Section 5.5 will be considered a material breach of these Terms, with all consequences resulting therefrom.
5.6 You agree that you will not engage in any activity that may amount to the misuse of our Services or that seeks to circumvent the Services’ terms. For example, if Emplifi provides you with any portion of a Service for free (as part of a trial, pilot or otherwise), you may not engage in data mining or other excessive use of the Service, beyond what is permitted by the free Service (and as advertised for that free Service at the time of the relevant promotion). Emplifi reserves the right to limit your activity on any of its free Services for any reason and without notice.
5.7 You agree that you are solely responsible for (and that Emplifi has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Emplifi may suffer) of any such breach.
5.8 You acknowledge that additional third-party fees (such as internet service provider fee, social media platform fee, fee for boosted or promoted posts, third-party add-on fee or similar) may apply in connection with your use of Emplifi’s Services. Selected third party fees are payable by you directly to the relevant third party and the relevant third party receiving such additional fees is responsible for the processing of such fees. You agree that you are solely responsible for payment of such fees or for maintaining appropriate level of funds where applicable. Emplifi has no responsibility to you or to any third party for payment of any such fees or for unavailability of Services due to your failure to do so.
6. Your passwords and account security
6.1 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
6.2 Accordingly, you agree that you will be solely responsible for all activities that occur under your account.
6.3 If you become aware of any unauthorised use of your password or of your account, you agree to notify Emplifi immediately at info@emplifi.io.
6.4 Emplifi uses Facebook Connect, “Sign in with Twitter”, and other authentication methods for authorization of users. If your Facebook account, Twitter account or any other account used for registration and/or signing in the Services is deleted or non-functional, you may no longer be able to access the Services.
7. Privacy and your personal data
7.1 We are serious about privacy of all individuals who use our Services or whose personal data we process.
7.2 We collect personal data when you (your end-users) register an account with us, complete a web application form, login to the Services (via username or by using a social network login), or otherwise interact with us. We process end-user personal data to provide and administer the Service and communicate with you, to provide a better user experience, inform you of new Services or Service features, and, in limited circumstance, to protect the Services and our rights. Our Services consist in social media monitoring, analytics and management, which means we analyse social media content, including profiles of social media users, statistics, metrics and other information that we receive from social media platforms via these platforms’ APIs. The type and scope of data obtained from social media platforms depends on the type of the APIs and permissions granted by the respective platforms, and on the administrative permissions you grant to us to your social media pages or properties, where applicable. We process personal data primarily as a data controller. We may also process personal data as a data processor to the extent when (A) you are a data controller with respect to personal data specified in Annex 1, and (B) you instruct us to process such personal data on your behalf within the Services. In such case, the data processing agreement in Annex 1 shall regulate the processing of such personal data. Further, some Service features may allow you to interconnect your Emplifi account with account(s) that you have with your other service providers, for example your providers of CRM solutions through which you manage communication with your clients or other persons interacting with you through your social media profiles. By connecting your Emplifi account with your other accounts, you instruct Emplifi to furnish selected data processed in your Emplifi account to such other service provider; however, you and your service provider (as your data processor) remain responsible for the processing of the shared data. The nature and extent of processing, the type of personal data processed, the purposes and legal basis on which we process personal data, as well as the organisational and technical measures that we implemented to ensure the security of processing, are described in detail in our Privacy Policy available at https://emplifi.io/legal/social-marketing-cloud/privacy-policy-oct-21, which applies to the processing of personal data within or in connection with our provision of Services to you and sets out our commitment to protecting personal data and privacy of individuals.
7.3 Emplifi has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines in accordance with good industry practice and having regard to the state of technological development to protect your data against accidental loss, destruction, or alteration; unauthorized disclosure or access (including but not limited to taking reasonable steps to ensure the reliability of employees having access to your data and providing for limited access rights and access controls; authentication; personnel training; regular back up; data recovery and incident management procedures; restrictions on storing, printing and disposal of personal data; software protection of devices on which personal data are stored; etc.); or unlawful destruction.
7.4 Data collected from you or your end-users may be transferred to, and stored and processed in, the United States or any other country outside of the EEA in which Emplifi or its affiliates, or subcontractors, suppliers or vendors maintain facilities, subject to Emplifi implementing such appropriate legal mechanisms as required by EU law to ensure an adequate level of personal data protection by the third-party processors, such as the controller-to-processor Standard Contractual Clauses approved by the European Commission (2021/914/EU) for data transfers from the EU to the USA and/or other third countries.
7.5 You agree that Emplifi may use aggregated and anonymised data derived from the data provided by you or collected by the program analytics such as user behaviour and activities for its own statistics, for auditing, for the purposes of product and market research and analytics (which help Emplifi to optimise and improve its Services their usability, the range of Services, and to develop new technologies, products and services), and for benchmarks and other analyses. Emplifi may publish such anonymised data and share them with third parties outside of Emplifi; however, Emplifi will not directly or indirectly transfer any data received from you to (or use such data in connection with) any ad network, ad exchange, data broker, or other advertising or monetization related toolset.
8. Content in the Services
8.1 You understand that all information such as, without limitation, data files, written text, computer software, music, audio files or other sounds, photographs, and videos or other images (all such information being hereinafter referred to as the “Content”) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from whom such Content originated, typically the social media user.
8.2 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services (if any), may be protected by intellectual property rights owned by the sponsors or advertisers who provide such Content to Emplifi (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on such Content (either in whole or in part), unless you have been specifically told that you may do so by Emplifi or by the owners of that Content, in a separate agreement.
8.3 You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.
8.4 You agree that you are solely responsible for (and that Emplifi has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Emplifi or third parties may incur and including any other legal liability, whether liability under civil, commercial, tort, penal or administrative law or any other legal theory) by doing so. You may not use the Services to intentionally transmit or make public infringing, libelous, or otherwise unlawful or tortious Content or to store, transmit or make public any Content in violation of third party’s intellectual property or similar rights. You shall indemnify and hold Emplifi harmless from all claims and all liabilities, costs, proceedings, damages and expenses awarded against, or incurred or paid by Emplifi as a result of or in connection with (i) your breach of any third party’s intellectual property or similar rights or (ii) your breach of warranty under Section 11.5 below.
9. Proprietary rights
9.1 You acknowledge and agree that Emplifi (or Emplifi’s licensors) owns all legal rights, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Emplifi and that you shall not disclose such information without Emplifi’s prior written consent.
9.2 Unless you have agreed otherwise in writing with Emplifi, nothing in the Terms gives you a right to use any of Emplifi’s or Emplifi’s affiliates’ trade names, trademarks, service marks, logos, domain names and any other distinctive brand features. For the avoidance of doubt, if any reports or similar outputs from the Services (hereinafter “Reports”) generated by you through the use of the Service include Emplifi’s or Emplifi’s affiliates’ trade name, trademark, service mark, logo, domain name or other distinctive Emplifi’s or Emplifi’s affiliates’ brand features, their use in connection with that Report is permitted and Section 9.4 below shall apply.
9.3 Other than the limited license set forth in Section 11, Emplifi acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Emplifi, you agree that you are responsible for protecting and enforcing those rights and that Emplifi has no obligation to do so on your behalf.
9.4 You agree not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
9.5 Unless you have been expressly authorised to do so in writing by Emplifi, you agree that in connection with the Services, you will not use any trade mark, service mark, trade name, logo of any third party company or organisation in a way that is likely or intended to cause confusion about the owner or authorised user of such marks, names or logos.
9.6 Emplifi shall indemnify and hold you harmless against all claims and all direct liabilities, costs, proceedings, damages and expenses awarded against, or incurred or paid by, you as a result of or in connection with any actual and proven infringement by Emplifi of any third party’s intellectual property rights. In respect of the indemnities set out in this Section 9.6, Emplifi shall be granted sole control and authority over the defence and/or settlement of any claim, suit or action for which Emplifi is providing an indemnity. You shall give Emplifi prompt written notice of any claim, and, upon Emplifi’s request and at Emplifi’s expense, shall provide reasonable assistance with the defence of the claim. The claims against Emplifi based on this Section 9.6 can be brought within one (1) year from the expiry or termination of your relationship with Emplifi.
10. Licence from Emplifi
10.1 Emplifi gives you a worldwide, royalty-free, non-assignable and non-exclusive right and licence to access and use the Services through the Software, on a subscription basis, for the term and in the scope designated by the Terms. Any Services unused during your subscription term (incl. but not limited to situations where you do not use the prepaid Services in full scope or if you do not use the prepaid Services for the full duration of the subscription term) shall expire at the end of the subscription term and cannot be transferred to consecutive terms or be refunded. Further, Emplifi gives you a worldwide, royalty-free, perpetual and non-exclusive right and licence to access and use, reproduce, display, distribute, and create derivative works of, Reports that you generate through your use of the Services. The licence granted in this Section 10.1 is for the sole purpose of enabling you (end-users within your organization) to use and enjoy the benefit of the Services as provided by Emplifi, in the manner permitted by the Terms (in particular Section 5). You may not use the Services for the benefit of any third parties. You acknowledge that this is a SaaS agreement and that (i) the Software is not sold, and (ii) we will not be delivering copies of the Software to you as part of the Services.
10.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software underlying the Service or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Emplifi in writing. You may not access and/or use the Service and the underlying Software in order to build a similar or competitive product. You further may not (and you may not permit anyone else to) attempt to gain unauthorized access to the Services, its particular features or third-party content created by or for another Emplifi’s customer, interfere with or disrupt the integrity or performance of the Services or third-party content contained therein or perform penetration test, denial of service simulation or automated vulnerability scan of the Services.
10.3 Unless Emplifi has given you specific written permission to do so, you may not assign (or grant a sub-licence of) your rights, grant a security interest in or over your rights, or otherwise transfer any part of your rights granted hereunder.
10.4 You acknowledge that any breach of Section 10 by you or your end-users shall constitute a material breach of the Terms, with all consequences arising therefrom.
11. Content licence and permission tokens from you
11.1 If you use Services features that allow you to submit, post or display the Content on social media through the Services (i.e. any publishing feature that is part of our Services), you give Emplifi a worldwide, royalty-free, and non-exclusive licence to use, reproduce, adapt, modify, and publish (on your behalf and pursuant to your instructions) such Content on social networks. The grant of this license is necessary for you to be able to use such publishing features and the licence is limited solely for the purpose of enabling Emplifi to display, distribute and promote your Content to social networks users. You retain copyright and any other intellectual property rights to your Content which you submit, post or display on or through the Services.
11.2 If you provide, as part of your use of Emplifi’s Services or as part of the Content which you submit, post or display on or through the Services, any photograph or other materials protected by personality or privacy rights, you specifically agree that Emplifi may use such photograph or other materials for the sole purpose of providing the Services.
11.3 You understand that Emplifi, in performing the required technical steps to provide the Services to you, may (A) transmit or distribute your Content over various public networks and in various media; and (B) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this licence shall permit Emplifi to take these actions.
11.4 You acknowledge that provision of Emplifi’s Services (or particular features within the Services) may be conditioned upon and subject to (A) you giving Emplifi appropriate access level to your social media content by providing respective social media platform access permissions; and (B) you having appropriate user permissions or roles within the respective social media platform. As a result, when using Emplifi’s Services, you may be required to grant Emplifi certain permissions (through a dedicated permission token or a similar permission mechanism) to allow the Services access specific information and perform the requested actions.
11.5 You confirm and warrant to Emplifi that you have all the rights, power and authority necessary to grant the above licence, access and permissions to Emplifi.
11.6 If any permission granted by you results in Emplifi obtaining access to a private layer of data available through the respective social media platform, Emplifi will keep such information confidential at all times, except where legally compelled to disclose the relevant information. Such obligation will not, however, apply to any information that (i) was publicly known and made generally available in the public domain prior to granting the permission to Emplifi; (ii) becomes publicly known and made generally available after granting the permission to Emplifi other than as a result of a violation of this Section 11.6 by Emplifi; (iii) is already in the possession of Emplifi at the time of granting the permission; (iv) is obtained by Emplifi from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by Emplifi without the use of your confidential information. If a separate non-disclosure agreement stipulating similar confidentiality obligations is in place between you and Emplifi, the stricter of the confidentiality obligations shall apply.
12. Ending your relationship with Emplifi
12.1 The Terms will continue to apply during the term of your original online subscription specified within the Services and during any renewed (extended) term as specified in Section 12.5 below, or until terminated by either you or Emplifi as set out in Section 12.2 and 12. 3 below.
12.2 If you purchase the Services continuously on a monthly “pay as you go” basis online, you may stop using the Services and so terminate your legal agreement with Emplifi at any time, without the need to notify Emplifi. This shall not apply if you have subscribed to the Services for a fixed term (regardless whether you agreed to pay the full fee upfront or in regular instalments) and you acknowledge and agree that during the subscription period, these Terms may only be terminated as stipulated in Section 12.3.
12.3 Each of the parties may at any time terminate the legal agreement embodied in the Terms if (A) the other party has materially breached any provision of the Terms and failed to cure the breach (where such breach is capable of being cured) within a reasonable cure period provided by the other party, or has acted in a manner which clearly shows that it does not intend to, or is unable to comply with the provisions of the Terms; or (B) a party is required to do so by law (for example, where the provision of the Services is or becomes unlawful); in addition, Emplifi may at any time terminate the legal agreement embodied in the Terms if (C) the partner with whom Emplifi offered the Services to you, or whom Emplifi uses or whose cooperation Emplifi needs in order to offer the Services to you (such as the social media platforms), has terminated its relationship with Emplifi or ceased to offer its APIs, data, programs, application or services that are essential for the Services; or (D) Emplifi is transitioning to no longer providing the Services to users in the country in which you reside or from which you use the Services; or (E) the provision of the Services to you by Emplifi is, in Emplifi’s opinion, no longer commercially viable. In the event you terminate the agreement for a material breach by Emplifi as described in (A) above, or if Emplifi ceases to provide any part or all of the Services during the agreement term for reasons stipulated in (C), (D) or (E) above, you shall not be required to make any payments for Services beyond the date of when you terminated the agreement or when Emplifi ceased to provide the Services (as applicable). In the event you prepaid the Services, Emplifi shall in such cases refund the pro-rata proportion of the pre-paid monthly fee.
12.4 Nothing in this Section 12 shall affect Emplifi’s rights regarding provision of Services under Section 4 of the Terms. Nothing in this Section 12 shall affect your early termination rights granted to you under the applicable law.
12.5 If you do not purchase the Services continuously on a monthly “pay as you go” basis, and provided the agreement has not been terminated early either by Emplifi or you as stipulated in the previous sections, then the following will apply: Your legal agreement with Emplifi embodied in the Terms shall automatically renew (i.e. be extended, repeatedly) for another term corresponding to your original (preceding) subscription term, unless you or Emplifi provide notice to the other of (y)our intent to terminate the agreement within the last thirty (30) days before the end of the then current term. You will be notified of the upcoming renewal and may notify Emplifi of your intention not to renew by unsubscribing from the automatic renewal within the user interface for the Services.
12.6 When your legal agreement with Emplifi comes to an end, all of the legal rights, obligations and liabilities that you and Emplifi have benefited from, been subject to (or which have accrued over time whilst your legal agreement with Emplifi has been in force) and/or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 18.8 shall continue to apply to such rights, obligations and liabilities indefinitely.
12.7 Further, you understand and agree that the terms and conditions contained in the Terms (including the Payment Terms) will continue to apply to any renewed (extended) term pursuant to Section 12.5 above, as well as to any other continued use of the Services beyond the pre-paid subscription term, as they applied to the original subscription term, and you undertake to pay for the use of the Services by you or your end-users of the Services in accordance with the Payment Terms. You expressly and irrevocably authorise Emplifi to debit your credit card for the settlement of such Emplifi’s consideration.
13. Exclusion of Warranties
13.1 The Services are provided “as is” and Emplifi, its subsidiaries and affiliates, and its licensors give you no warranty with respect to them. Services features that interoperate with social media networks depend on the continuing availability of those social media network’s APIs, data, application, programs and services for use with the Service. If any social media network ceases to make its APIs, data, application, programs or services available on reasonable terms for the Service, Emplifi may cease providing such Service features upon reasonable prior written notice to you pursuant to Section 12.3 (C). Emplifi is not liable or responsible for the quality, accuracy or truthfulness of services or information obtained from social media networks and used within the Services or for interruption of access to such information caused by downtime or unavailability of the social media networks. Social media network content is not created or edited by Emplifi. Emplifi expressly disclaims and has no responsibility or liability for any social media network content that may be collected, received or created by you or your end-users in use of the Service.
13.2 In particular, Emplifi, its subsidiaries and affiliates, and its licensors do not represent or warrant to you that (A) your use of the Services will meet your requirements; (B) your use of the Services will be uninterrupted, timely, secure or free from error; (C) any information obtained by you as a result of your use of the Services will be accurate or reliable; and (D) that defects in the operation or functionality of any Software used to provide the Services will be corrected.
13.3 No conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Services except to the extent that they are expressly set out in the Terms.
13.4 Nothing in the Terms shall affect those statutory rights which you are always entitled to as a consumer and that you cannot contractually agree to alter or waive.
14. Limitation of liability
14.1 Nothing in the Terms shall exclude or limit Emplifi’s liability for losses which may not be lawfully excluded or limited by applicable law.
14.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, EMPLIFI WILL NOT BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE TERMS, THE SERVICES, MATERIALS, OR THE FAILURE TO PERFORM OUR OBLIGATIONS.
14.3 Subject to overall provision in Section 14.1 above, Emplifi, its subsidiaries and affiliates, and its licensors shall not be liable to you for any indirect or consequential losses which may be incurred by you. Indirect and consequential losses shall include (A) any loss of profit (whether incurred directly or indirectly), loss of goodwill or business reputation, or any loss of data suffered by you; (B) loss or damage which may be incurred by you as a result of (i) any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Services; (ii) any changes which Emplifi may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services); (iii) the deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through your use of the Services; (iv) your failure to provide Emplifi with accurate account information; (v) your failure to keep your password or account details secure and confidential.
14.4 The limitations of Emplifi’s liability to you in Section 14.3 above shall apply whether or not Emplifi has been advised of or should have been aware of the possibility of any such losses arising.
14.5 Emplifi’s liability for damage incurred by you as a result of or in connection with the Services shall be limited to direct damages up to the amount you paid to Emplifi for the Services giving rise to that liability during the last three months before the occurrence of Emplifi’s liability (or amount corresponding to a three-month Service fee, as applicable). Emplifi and you agree that this limitation reflects the damage that can be foreseen at the time of conclusion of this legal agreement between you and Emplifi, taking into account all circumstances the parties know or should know while exercising due care and that can arise from a breach of Emplifi’s obligations under the Terms. To the extent permitted by applicable law, Emplifi accepts no liability in relation to your use of any Services provided free of charge.
15. Advertisements
15.1 Some of the Services, in particular free Services, may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
15.2 The manner, mode and extent of advertising by Emplifi on the Services are subject to change without specific notice to you.
15.3 In consideration for Emplifi granting you access to and use of the Services, you agree that Emplifi may place such advertising on the Services.
16. Other content
16.1 The Services may include hyperlinks to other web sites or content or resources. Emplifi has no control over any web sites or resources which are provided by companies or persons other than Emplifi.
16.2 You acknowledge and agree that Emplifi is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3 You acknowledge and agree that Emplifi is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources. In addition, you acknowledge and agree that Emplifi is not liable for any damage which may be incurred by you as a result of any reliance you may have placed on the completeness, accuracy, or existence of any advertising, products, or other materials on, or available from, such web sites or resources.
17. Changes to the Terms
17.1 Emplifi may make changes to the General Terms from time to time. When these changes are made, Emplifi will make a new copy of the General Terms available at https://emplifi.io/legal/social-marketing-cloud/online-terms-and-conditions.
17.2 You understand and agree that if you use the Services after the date on which the General Terms have changed, Emplifi will treat your use as acceptance of the updated General Terms.
18. General provisions
18.1 “Emplifi” or “we” means Emplifi Czech Republic a.s., whose principal place of business is in Pilsen, Pod Všemi svatými 427/17, Severní Předměstí, postal code 301 00, Czech Republic. “You” means the individual that is entering into the legal agreement for the Services with us in a manner anticipated in Section 2.2 above, or that is using the Services, or who is registered with Emplifi. Equally, “you” means any entity on whose behalf Emplifi’s Services were purchased by an authorized individual.
18.2 Sometimes when you use the Services, you may (as a result of or through your use of the Services) use a service or download a piece of software or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals and you remain responsible for complying with the terms of use of such third party’ services, software or goods. If you use third parties’ services, software or goods while using the Services, you declare that you act in compliance with their terms of use. In particular, if you use Facebook, Twitter or YouTube while using the Services, you must comply with the applicable Facebook (https://www.facebook.com/terms.php), Twitter (https://twitter.com/en/tos), YouTube (https://www.youtube.com/t/terms) or Google (https://policies.google.com/privacy) rules in versions effective as of the date of use of such services.
18.3 The Terms constitute the whole legal agreement between you and Emplifi and govern your use of the Services (excluding any services which Emplifi may provide to you under a separate written agreement), and completely replace any prior agreements between you and Emplifi in relation to the Services.
18.4 You agree that Emplifi may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services website.
18.5 Except for performance of payment obligations, neither party will be responsible for any failure to perform or delay in performing any of its obligations under the Terms where and to the extent that such failure or delay results directly or indirectly from an event beyond such party’s reasonable control.
18.6 The parties agree that if one of them does not exercise or enforce any legal right or remedy which is contained in the Terms (or which such party has the benefit of under any applicable law), this will not be taken to be a formal waiver of such party’s rights and that those rights or remedies will still be available to it.
18.7 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
18.8 The Terms, and your relationship with Emplifi under the Terms, shall be governed by Czech law. You and Emplifi agree to submit to the jurisdiction of the courts of the Czech Republic to resolve any legal matters arising from the Terms and the venue of the court of first instance shall be Prague 1 or the Municipal Court in Prague, as applicable. Notwithstanding this, you agree that Emplifi shall still be allowed to apply (A) for payment orders (or otherwise enforce payment for Services provided under the Terms) in the jurisdiction in which you have your registered seat or principal place of business, and (B) for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
18.9 You are being hereby notified that the Czech Trade Inspection Authority has been the entity ensuring alternative dispute resolution for consumer disputes (ADR). The aim of the ADR scheme is to facilitate an amicable settlement of a dispute and reach agreements for both parties. ADR deals with disputes between consumers and vendors residing or permanently based in any country of the European Union. Consumers can initiate an ADR procedure within the period of 1 year after the first claim is made against the vendor. When initiating an ADR procedure it is necessary to prove that an unsuccessful attempt to resolve the claim was made. The particular dispute shall not be already decided by a court or any other ADR entity. No fee is required within the ADR procedure. ADR is a notified entity of out-of-court resolution of consumer disputes listed by the European Commission. For further details, see the ADR website https://www.coi.cz/en/information-about-adr/.
Annex 1 – Data processing agreement
Preamble
This Annex 1 – Data processing agreement shall only apply if Emplifi provides to you Services or Services’ features within which we only have access to certain personal data because you give us your permission, authorization, token or other mechanism that allows us to access, collect or otherwise process such data, and thereby instruct us to process such personal data on your behalf; for example:
Customer care feature of our Service “Community” which involves the access by Emplifi to, and storing and management of, communication between you and your social media followers or other persons interacting with you through your social media profiles affected via your social network pages (e.g. Facebook messages); or
Any other similar Services or Services’ features that you may activate and that would require Emplifi to access and process any personal data associated with your social network profile, page or account which we cannot access directly from social networks (via API) without your permission and with respect to which you are the data controller; or
Any other personal data that you entrust to us for processing on your behalf, by written instruction, where such processing is necessary for us to provide you our Services.
As a data controller with respect to any personal data that you instruct us to process in the context of the Services, you are responsible for the lawfulness of such processing, including the requisite legal titles (consents or other, as may be applicable) for processing. Further, if you instruct Emplifi to make your data available to, or share your data with, your other service providers, for example by connecting your Emplifi account with the accounts you have with your other service providers, you remain responsible for implementing the requisite legal measures (such as a data processing agreement between you and your other service provider) for the processing of the data you instruct us to furnish to your other service provider. Emplifi is not liable for any misprocessing of data that could occur by your provision of the data to Emplifi or your instruction to Emplifi to process such data on your behalf.
This Annex 1 – data processing agreement does not apply in situations where we collect and process personal data as a data controller (see our Privacy Policy for further details).
1. Definitions
“CCPA” means the California Consumer Privacy Act of 2018, Civil Code sections 1798.100 et seq.;
“DPA” means the data processing agreement included in this Annex 1;
“GDPR” means the 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 repealing Directive 95/46/EC (General Data Protection Regulation);
“Services” means, for the purpose of this Annex 1, all Services Emplifi provides to you under the Terms as your data processor, as specified in the Preamble of this DPA;
“Terms” means the Terms to which this Annex 1 is appended to.
The terms “personal data”, “processing” and “data subject” shall have the meaning ascribed to them in the GDPR. The term “personal data” includes “personal information” as defined in the CCPA; the term “data subject” includes “consumer” as defined in the CCPA.
2. Object / Scope of the processing
The object/scope of this DPA is the processing of personal data in connection with the provision of the Services specified in this DPA, in particular its Exhibit A.
3. Duration
The duration of this DPA shall correspond to the term of your subscription to Emplifi’s Services.
4. Specification of Processing (nature, purpose, type of personal data and categories of data subjects)
4.1 The nature and purpose of the intended processing are defined in the Terms and correspond to the provision of the Services defined in this DPA.
4.2 Each and every transfer of personal data beyond the EU / EEA shall only take place if the specific conditions as laid down in Art. 44 et seq. GDPR have been fulfilled. When transferring personal data to a country outside of the EU/EEA, we ensure that our sub-processors are bound by the standard contractual clauses.
4.3 The types of personal data processed under this DPA and categories of data subjects are specified in Exhibit A hereto. The scope of personal data is determined and controlled by you in your sole discretion, and may include, without limitation:
Any personal data that your social media followers or other persons interacting with you through your social media profiles (data subjects) decide to submit to you via your social media pages, using direct messages (e.g. Facebook messages), which will be administered by Emplifi as a data processor within the customer care feature of Emplifi’s Service “Community” (or other Service features, as may be applicable). Such personal data may include, without limitation, data subjects’ contact information (such as name, address, company, email, telephone), identification data (date of birth), and other information relating to the data subjects’ activities; and
Information about data subjects’ behaviour on Emplifi’s platform and/or on social media.
The exact scope of personal data processed will always depend on the specific Service you use.
5. Technical and Organizational Measures
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we are obliged to implement appropriate technical and organizational measures in such a manner that the processing of personal data will meet the requirements of applicable data protection laws, in particular the GDPR and this DPA.
5.2 We have implemented technical and organisational measures as specified in the Security Policies and Practices available at: https://emplifi.io/legal/social-marketing-cloud/security. Further, Emplifi has implemented information security management in accordance with the requirements of information security standard ISO 27001.
6. Rectification, restriction, access and erasure of data
6.1 We will only erase or block personal data upon instruction issued by you. In case of requests regarding the rectification, restriction or the erasure directly addressed to us by a data subject, we will inform you about such request without undue delay.
6.2 Where appropriate we will assist and support you in fulfilment of your obligations under the GDPR and/or CCPA to respond to requests for exercising the data subject’s right, in particular the ‘right to be forgotten’, rectification, restriction, data portability, information and access rights.
6.3 You hereby agree that Emplifi shall not be liable if you do not take action on the data subject’s request, or if you do not respond correctly or in a timely manner.
7. Our obligations
7.1 We undertake to:
Process the personal data within the Services specified in this DPA only on documented instructions from you and only for the specific purpose of providing the Services under the Terms unless processing is required by applicable laws to which we are subject to, in which case we shall, to the extent permitted by applicable laws, inform you of that legal requirement before the relevant processing of that personal data. We shall not retain, use or disclose the personal data processed on your behalf for any purpose other than for the specific purpose of providing the Services;
Inform you if we consider that an instruction violates data protection laws or regulations. We shall then be entitled to suspend the execution of the relevant instructions;
Keep the personal data confidential and ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
Taking into account the nature of the processing, assist you by implementing and maintaining appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to ensure an appropriate level of security and to respond to requests for exercising the data subject’s rights;
Assist you in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to us;
Notify you without undue delay after becoming aware of a personal data breach in relation to the personal data processed on your behalf;
Not sell, as defined in the CCPA, the personal data processed on your behalf;
At your choice, delete or return all the personal data to you after the end of the provision of Services relating to processing, and delete existing copies unless applicable law requires storage of the personal data;
Make available to you information necessary to demonstrate our compliance with the obligations laid down in this DPA.
8. Sub-processing
8.1 We shall engage another processor (i. e. a sub-processor) only in accordance with this DPA. The mechanism hereby stipulated shall be considered a general written authorisation from you pursuant to Article 28 par. 2 of the GDPR.
8.2 If we engage another processor for carrying out specific processing activities on your behalf, the same obligations as set out in this DPA shall be imposed on that other processor by way of a written contract.
8.3 The sub-processors currently engaged by us and hereby authorized by you are listed in the Privacy Policy. We will inform you of any intended changes concerning the addition or replacement of other processors, including full details of the processing to be undertaken by the new processor(s), giving you the opportunity to object to such changes.
8.4 If you have a reasonable basis to object to our use of another new processor, you shall notify us promptly in writing within 5 days after being notified. For the avoidance of doubt, you hereby agree that if you are not able to show evidence that the new processor provides an unacceptable risk to the protection of personal data (e.g., the other processor has a history of security breaches) or is your direct competitor, it would be unreasonable for you to object if the other processor has passed our vendor security evaluation.
8.5 Notwithstanding the foregoing, if you object to the engagement of another processor and your objection is not unreasonable, the parties will come together in good faith to discuss an appropriate solution. We may in particular choose not to use the intended processor, or engage the processor only after we take the corrective steps and / or measures requested by you.
8.6 Certain components of or add-ons to our Services may allow you to interconnect the direct messaging feature with third-party CRM or help desk tools that you use, and thus help you effectively manage communication with your clients or other persons interacting with you through your social media profiles. If you interconnect the direct messaging or other similar features, the third-party vendor application will have access via APIs to data from Emplifi’s Service “Community” direct messaging or similar feature. In such cases, the third-party vendors with whom data are shared shall not be considered our sub-processors engaged by us according to this Section 8; the processing of the shared data shall be subject to a separate data processing agreement or a similar contractual arrangement concluded directly between you and your relevant third-party vendor.
9. Audit rights
9.1 Upon reasonable advance notice of at least 90 days and in order to ensure and review compliance with the technical and organizational security measures and the obligations laid down in this DPA, we shall permit you to conduct periodic audits or to have them carried out by an auditor mandated by you. We shall, at your written request and within a reasonable period of time, submit to you any and all information, documentation and other factual evidence necessary for the audit. The audit result shall be documented appropriately.
9.2 Audits shall be conducted during reasonable times, shall be of reasonable duration, and shall not unreasonably interfere with our day-to-day operations. In the event that you conduct an audit through a third-party independent contractor, such independent contractor shall be required to enter into a non-disclosure agreement. Additionally, such independent contractor must not be our direct or indirect competitor, nor a person who can reasonably be considered by us unfit (from professional, experience and historic reasons) to perform such audit.
10. Miscellaneous
10.1 Unless otherwise stipulated herein, the provisions of the Terms shall apply, including any exclusions and limitation of warranties and liabilities provided therein. Provisions in this DPA shall have precedence over any provisions of the Terms relating to the processing of personal data by Emplifi in the position of a data processor, if any.
Exhibit A: Specification of processing
Subject Matter and Nature of Processing
The subject matter of the processing of personal data is set out in the Terms.
The nature of the processing means any operation that Emplifi may perform on personal data or on sets of personal data when providing Services, which may include in particular collection, recording, organisation, structuring, storage, adaptation, retrieval, consultation, disclosure by transmission or otherwise making available, alignment or combination, erasure or destruction of data (whether or not by automated means).
Purposes of processing
Provision of Emplifi’s Services (SaaS) consisting in data analytics and social media management (including, where applicable, “Community” and “customer care” management) for marketing on social media.
Categories of data
As a data controller you may submit or allow access to personal data within the customer care feature of Emplifi Service “Community” or other Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to the following categories of personal data:
Any personal data that your social media followers or other persons interacting with you through your social media profiles (data subjects) decide to submit to you via your social media pages, using direct messages (e.g. Facebook messages), which will be administered by Emplifi as a data processor within the customer care feature of Emplifi’s Service “Community” (or other Service features, as may be applicable). Such personal data may include, without limitation, data subjects’ contact information (such as name, address, company, email, telephone), identification data (date of birth), and other information relating to the data subjects’ activities; and
Information about data subjects’ behaviour on Emplifi’s platform and/or on social media.
The exact scope of personal data processed will always depend on the specific Service or Service feature then available and used by you.
Categories of data subjects
As a data controller you may submit or allow access to personal data within the customer care feature of Emplifi’s Service “Community” or other Service, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to personal data relating to the following categories of data subjects:
Any individuals who interact with you through Community or similar Service feature (such individuals may include, without limitation, your followers, fans or other page visitors, prospective clients, client, business partners and vendors who are natural persons, employees of your prospective clients, clients, business partners and vendors; your employees, agents, advisors, and freelancers who are natural persons, and your end-users authorized by you to use the Services).
Location of processing operations
Czech Republic, EU, USA (Emplifi’s Services are hosted on AWS cloud). For full information see Section 9 par. 3 and 4 of Emplifi Privacy Policy available at https://emplifi.io/legal/social-marketing-cloud/privacy-policy-oct-21.
Sub-processors
As defined in Section 8 of the DPA. The then-current list of sub-processors is available in Section 6 of Emplifi Privacy Policy available at https://emplifi.io/legal/social-marketing-cloud/privacy-policy-oct-21.
