THE DESCRIPTIONS SET FORTH BELOW WITH RESPECT TO A GIVEN PRODUCT ONLY APPLY TO THE EXTENT THAT CLIENT IS PURCHASING A SUBSCRIPTION TO SUCH PRODUCT, AS INDICATED ON THE FIRST PAGE OF THE SUBSCRIPTION SCHEDULE OR STATEMENT OF WORK (OR SIMILAR ORDERING DOCUMENT).
Web Scholars offers a variety of products (“Products”) that each include different features. If you subscribe to, are given access to, or purchase for resale a Product described below, in addition to your agreement with Web Scholars and any and all Subscription Schedule(s) and Statement(s) of Work or similar ordering document(s) (collectively, the “Master Agreement”), the associated terms herein apply to your access and use of such Products. Capitalized terms used in these Product Terms and not otherwise defined have the meanings given to such terms in the Master Agreement. “You” and “your” will refer to you and will also refer to the Client or Partner (or similar term referring to the legal entity subscribing or being given access to Products) as defined in the relevant Master Agreement. In the event of a conflict between these Product Terms and the Master Agreement, unless otherwise specified herein, the terms of the Master Agreement will control.
1. Communications sent by You via the Products
To the extent that Web Scholars provides you with access to a Product that allows you (or in the case of an agency or reseller, your clients), through Web Scholars, to send email or other communications (e.g., review requests) to your customers, you agree not to send any unsolicited, commercial communications (e.g., “spam”). Further, you acknowledge that you are responsible for your own compliance (and in the case of an agency or reseller, your clients’ compliance) with all Applicable Laws[1] in connection with your use of any Product, and you represent and warrant that you comply (and in the case of an agency or reseller, your clients comply) with all such Applicable Laws. Accordingly, and notwithstanding any representation or warranty disclaimer in the Master Agreement, you represent, warrant and covenant that: (i) all applicable customer and/or email lists were created and/or shared with Web Scholars in a manner that complies with Applicable Laws; (ii) each recipient of applicable communications has been given clear and conspicuous notice prior to the collection of his or her email address and/or other contact information that such information may be shared; and (iii) each recipient of applicable communications has given any required consent to receiving commercial email and other forms of communication, including, but not limited to SMS/text messages; and (iv) you (or in the case of an agency or reseller, your clients) will be considered the sender of any such communications under Applicable Laws. You will defend, indemnify, and hold harmless the Web Scholars Indemnitees from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to: (a) a breach of Applicable Laws; (b) your (or in the case of an agency or reseller, your clients’) breach of your obligations in this Section; or (c) any communication(s) sent by you (or in the case of an agency or reseller, your clients) via the Products. The exclusions and limitations set forth in the “Liability” section of the Master Agreement will not apply with respect to the foregoing obligation. You agree that Web Scholars reserves the right to cap the number of emails and other forms of communication, including, but not limited to text messages, that may be sent in connection with any Product(s) at its sole discretion.
2. Privacy Law Compliance.
Where GDPR or another Applicable Law applies, for example, POPIA, you agree that you shall be regarded as the controller of the personal data of: (i) your employees to the extent such information is provided to Web Scholars for publication as part of Listings, Pages or search (or in the case of an agency or reseller, your clients will be regarded as the controller of the personal data of their employees) and (ii) your end customers (or in the case of an agency or reseller, your clients will be regarded as the controller of the personal data of their end customers) which may be provided to Web Scholars or processed on your behalf by Web Scholars in connection with Reviews features or other Products such as Listings, Pages, Questions, Web Snippets and Reports. When processing any personal data in connection with (a) Listings or Pages, (b) the relevant Reviews features and/or (c) other Products such as Questions, Web Snippets and Reports (including in respect of any cookies or tracking technologies which form part of the Product functionality for analytics purposes), Web Scholars will act as a processor in accordance with the Applicable Laws and you agree that Web Scholars' Data Processing Agreement, which is available at https://mywebscholars.com/terms/data-processing-agreement/, shall form part of the Master Agreement. This entails that Web Scholars must only act on documented instructions from the relevant controller, as set out in the Master Agreement and these Product Terms, as it relates to the end customers’ personal data with the aim of processing such personal data on behalf of the controller. Web Scholars will not communicate this personal data to any third parties without the relevant controller’s consent. Where you are an agency or reseller, you will ensure that your agreement with your clients contains the appropriate provisions to permit you to process their personal data on their behalf as data processor and to ensure that you have the appropriate consent to subcontract the processing of their personal data to Web Scholars and other sub-processors. Web Scholars will not collect, sell, retain, use, or disclose the personal data for any purpose other than for the specific purpose of performing the Products or services specified in the Master Agreement or as otherwise permitted by law.
3. Use of Cookies with the Products
To the extent that Web Scholars provides you with access to a Product (e.g., in connection with Questions, Web Snippets or Reports) that allows Web Scholars or you (or in the case of an agency or reseller, your clients), through Web Scholars or the Product functionality (e.g., Conversion Tracking), to use cookies, pixel tags or similar technologies, you agree to comply with and are responsible for your own compliance (and in the case of an agency or reseller, your clients’ compliance) with all Applicable Laws in all respects in connection with your use of such Product, and you represent and warrant that you comply (and in the case of an agency or reseller, your clients comply) with all such Applicable Laws, including without limitation all transparency and consent requirements under section 5 of the FTC Act, the CCPA, the ePrivacy Directive (and applicable national legislation) and GDPR relating to the use of cookies and such technologies. If applicable, you agree to list Web Scholars in the detailed cookie notice on your website together with information about how visitors to your website can withdraw their consent to such technologies. You shall provide Web Scholars with all information reasonably necessary to demonstrate compliance with Applicable Laws. You will defend, indemnify, and hold harmless the Web Scholars Indemnitees from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to: (a) a breach of Applicable Laws or (b) your (or in the case of an agency or reseller, your clients’) breach of your obligations in this Section. The exclusions and limitations set forth in the “Liability” (or similar) section of the Master Agreement will not apply with respect to the foregoing obligation.
4. Health Information
Unless you are a Covered Entity or Business Associate subject to the Health Insurance Portability and Accountability Act (“HIPAA”) and have entered into a HIPAA Business Associate Agreement with Web Scholars, the following terms apply:
- Web Scholars' Products do not involve the transmission or storage of Protected Health Information or Electronic Protected Health Information (collectively “PHI”) as defined by HIPAA.
- You agree that in no event will Web Scholars be deemed a Business Associate as defined by HIPAA and you will take all necessary steps to ensure that Web Scholars is not deemed to be a Business Associate to you or to any of your agents, representatives, clients or end customer(s).
- You further agree and covenant that: (i) neither you nor any third party acting on your behalf will transmit or make available any PHI to Web Scholars or its affiliates or representatives; (ii) if you become aware of any PHI in Web Scholars' possession or transmitted through or received from Web Scholars' platform due to your actions or omissions or any actions or omissions of your employees, agents, representatives, clients or end customers, you will immediately notify Web Scholars in writing, and you agree that Web Scholars may immediately and in its sole discretion remove all such PHI from its systems; and (iii) you will immediately inform Web Scholars in writing in the event of, and will provide any information reasonably requested by Web Scholars related to: (A) any event that would require a breach notification under 45 CFR 164.400-414, or any similar state breach notification rule, to any client referred to you by Web Scholars (provided that you will not be required to provide such notification if and to the extent that, in the reasonable determination of its counsel, to do so would be a breach of the HIPAA rules); (B) any claim, suit or governmental investigation or inquiry related to your obligations as a Business Associate and/or under HIPAA; and (C) any other event that could be reasonably expected to affect your abilities to carry out the obligations of a Business Associate, as set forth in HIPAA.
- Prohibited Parties – If you are a Partner or reseller of Products, you shall not, nor shall you permit anyone else to sell Brand Management: Complete (or any subsequent Product that includes review generation or review response features) to, or otherwise use it on behalf of, any health care service provider and/or any entity or individual that may otherwise be subject to HIPAA (each of the foregoing, a “Prohibited Party”). You will defend, indemnify, and hold harmless the Web Scholars Indemnitees from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to a breach of the foregoing obligation. The exclusions and limitations set forth in the “Liability” section of the Master Agreement will not apply with respect to your obligations in this Section. In the event that you breach this Section, Web Scholars reserves the right to, without limiting its other rights and remedies, suspend any Prohibited Parties’ access to Brand Management: Complete (or any other relevant Products) at any time for any reason, or otherwise disable any access to the review generation or review response features (or any other features that could potentially introduce PHI into the Products). This Section shall survive any expiration or termination of the Master Agreement.
6. Additional Terms
- To the extent you have access to or use Google Maps or the Google Maps API via the Products, you are bound by the Google Maps/Google Earth Additional Terms of Service (currently found at https://maps.google.com/help/terms_maps.html) and the Google Privacy Policy (currently found at https://policies.google.com/privacy?hl=en&gl=us).
- To the extent that you have access to and/or use certain Product features that allow you to use or search YouTube via the YouTube API services, you agree to be bound by the YouTube Terms of Service (currently found at https://www.youtube.com/t/terms) and the Google Privacy Policy (currently found at https://policies.google.com/privacy).
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7. Changes.
Web Scholars continues to innovate and update its Products and features and as such, these Product Terms may change from time to time. You should check back frequently to ensure that you understand all applicable policies and terms in these Product Terms and any changes hereto. In the event that Web Scholars makes a material change or changes to these Product Terms that adversely impacts your rights under your Master Agreement, Web Scholars will provide notice via email to the contact on file.
[1] Applicable Laws means all applicable laws, rules or regulations including, but not limited to, 15 U.S.C. §§ 7701-7713 (the CAN-SPAM Act), 47 U.S.C. 227 (the Telephone Consumer Protection Act), 15 U.S.C. § 45 (section 5 of the Federal Trade Commission (FTC) Act), the California Consumer Privacy Act (“CCPA”), Canada’s An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying out Commercial Activities, and to Amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, SC 2010, c 23 (CASL), EU General Data Protection Regulation 2016/679 (“GDPR”), Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), South Africa’s Electronic Communications and Transactions Act 25 of 2002, South Africa’s Consumer Protection Act 68 of 2008, South Africa’s Protection of Personal Information Act 4 of 2013 (“POPIA”), and any legislation and/or regulation implementing or made pursuant to, or which amends, replaces, re-enacts or consolidates them and all other applicable laws, codes of practice and best practices relating to processing of personal data and privacy that may exist in any relevant jurisdiction.