Thank you for your interest in AudiencePoint, Inc. (“AudiencePoint”) and its digital channel send-time analysis and optimization services, digital channel campaign services and other related individualized time optimized email services (the “Services”) offered through www.audiencepoint.com (the “Website”).
You are more than likely visiting the Website to use the Services because you have become an AudiencePoint customer (“Customer”) by entering into a Statement of Work with AudiencePoint that sets forth the Services AudiencePoint will provide you and the Fees (as defined in Section 4) for the Services (each a “Statement of Work”). You may also be visiting the Website to learn more about AudiencePoint and the Services (“Visitor”).
AudiencePoint may refuse the Services, close User Accounts of any Customer, and change eligibility requirements at any time.
i. Statements of Work
The scope of the Services that AudiencePoint provides to is set forth in a Statement of Work. If you have not entered into a Statement of Work and would like to register to use, or learn more about, the Services, please contact AudiencePoint at [(844) 692-8343] or [firstname.lastname@example.org].
ii. Use of Website and Other Communication.
A. User Account Set-Up and Use.
To use the Services, Customers will register for and login to an AudiencePoint user account through the Website (the “User Account”) using an individualized user identification name (“User ID”) and personal user pass code (“Password”) (“Password” together with User ID shall mean “Credentials”). Customers are solely responsible for keeping the User Account information and Credentials confidential. Customers are also responsible for all activity that takes place on the User Account, regardless of whether Customer authorized another to use of the User Account. Customer agrees to immediately notify AudiencePoint of any unauthorized use of the User Account. AudiencePoint is not responsible for any losses due to stolen or hacked Credentials. AudiencePoint does not have access to Credentials, and for security reasons, AudiencePoint may only reset a Customer’s Password. AudiencePoint has a right to update any of the User Account information in the User Account for billing purposes. In addition, Customer represents and warrants that all information Customer provides to AudiencePoint when Customer registers for the User Account, and each time when Customer accesses and uses the Services, is and will remain complete and accurate.
If Customer accesses the Services through an intermediary, Customer will be required to obtain login and password information from that intermediary.
B. User Account Disputes
AudiencePoint does not know the inner workings of the Customer’s Business or the nature of their personal relationships, and does not arbitrate disputes over who has set up or accessed a User Account. Customer agrees not to request access to or information about a User Account that Customer has not set up, and that Customer will resolve any User Account-related disputes directly with the other party. AudiencePoint reserves the right to decide who owns a User Account based on the Content in that User Account, and if multiple people or entities are identified in the Content, then AudiencePoint will rely on the Customer’s information listed for that User Account. “Content” shall mean any published information or experiences, including without limitation, texts, sounds, images (static and moving), designs, graphics, photographs, drawings, performances, videos and any similar type of information, communication or material. In cases where differing Customer contact and profile information is present, AudiencePoint will require Customer to resolve the matter through proper channels outside of AudiencePoint.
When a dispute is identified, AudiencePoint may suspend any User Account associated with the dispute, including disabling Credentials and sending capabilities through the Services to protect the security and privacy of the Personal Information and other information held within the User Account. “Personal Information” shall mean any information that identifies or can be used to identify any Customer, directly or indirectly (i.e. first and last name, date of birth, email address, gender, occupation, or other demographic information).
Payment and Fees.
When Customer registers for the Services, Customer agrees to pay AudiencePoint the fees, charges and costs (“Fees”) in accordance with the terms of each applicable Statement of Work. If no payment terms are included in a Statement of Work, Customer agrees to pay AudiencePoint all Fees within thirty (30) calendar days from the date of the invoice for such Fees. Customer agrees to pay all Fees in U.S. dollars and be responsible for all wire transfer and other bank charges related to the payment of the Fees. The Fees do not include any sales, use, value added or other similar taxes. To the extent AudiencePoint is required to collect any sales, use, value added or other similar taxes, AudiencePoint may charge them with the Fees or require Customer to directly pay such taxes to the applicable taxing authorities.
Term and Termination.
B. Suspension and Termination
AudiencePoint may suspend the Services or its obligations to Customer under any Statement of Work if Customer has materially breached its obligations to AudiencePoint, including, but not limited to Customer’s obligations to pay the Fees. Customer and AudiencePoint may terminate the Services or any Statement of Work at any time for any reason. If Customer terminates a Statement of Work because AudiencePoint has materially breached its contractual obligations, Customer will not be required to pay the Fees that would have become payable following the material breach. If Customer terminates a Statement of Work when AudiencePoint has not breached its contractual obligations, Customer agrees to pay AudiencePoint all amounts that would have been payable under the Statement of Work if it had not been terminated. AudiencePoint will not be required to retain any data or information associated with Customer’s User Account following a termination of the Services or if Customer has not accessed its User Account for a period of twelve (12) months. Any termination of the Services or any Statement of Work must be made in writing.
A. AudiencePoint Intellectual Property.
Customer agrees that AudiencePoint is granting Customer access to the Services in accordance with the Statements of Work and the End User License Agreement. Except for this right to access the Website and the Services, AudiencePoint is not granting Customer any licenses or rights to use the Website, the Services or any of AudiencePoint’s Intellectual Property, nor is AudiencePoint selling, transferring or granting Customer any rights in or to the Website, the Services or any of AudiencePoint’s Intellectual Property. “Intellectual Property” shall mean any and all patents, patent disclosures and inventions, trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, copyrights and copyrightable works (including software and computer programs), mask works and rights in data and databases, trade secrets, know-how and other confidential information, and all other intellectual property rights, any derivative works of any of the foregoing and in each case whether registered or unregistered.
As such, AudiencePoint reserves and retains all right, title and interest in and to the Website, the Services and all AudiencePoint’s Intellectual Property, whether such right, interest or title currently exists or is developed in the future. Although under certain circumstances AudiencePoint may grant Customer the right use AudiencePoint’s trademarks or trade names, Customer not permitted to use any of AudiencePoint’s trademarks or trade names or other Intellectual Property without AudiencePoint’s prior written consent. Customer agrees to promptly notify AudiencePoint if Customer becomes aware of any possible infringement of AudiencePoint’s Intellectual Property and, at AudiencePoint’s expense, fully cooperate with in any legal action taken against third-parties to enforce AudiencePoint’s rights with respect to AudiencePoint’s Intellectual Property. Customer agrees to safeguard the Services and AudiencePoint’s Intellectual Property from unauthorized access.
B. Intellectual Property in Connection with the Services.
In connection with the performance and use of the Services, certain Intellectual Property may be imported, provided, used and/ or created.
i. Customer Intellectual Property.
As between Customer and AudiencePoint, AudiencePoint agrees that the Address Books consisting of the email addresses and/or other associated information related to Customer’s contacts and subscribers imported, uploaded or otherwise provided to AudiencePoint in connection with the Services (“Address Book”) shall be the Customer’s sole and exclusive property. By using the Services, importing Address Brooks or otherwise transmitting any other Content or through the Services, Customer hereby grants AudiencePoint and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works in connection with the Services. Customer represents and warrants that Customer has all rights to grant such licenses without infringement or violation of moral rights or any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property. In addition, while using the Services, Customer may provide information (such as Customer’s name, contact information, and/or other registration information). Customer agrees to, and agrees and warrants that it has the necessary consents to, permit AudiencePoint to use this information and any technical information about Customer’s use of the Services to tailor the user experience of the Services to Customer, to facilitate Customer’s use of the Services, and to communicate with Customer. Except in connection with the Services, AudiencePoint agrees not to use, sell or otherwise transfer to any third-party the Customers Content or Address Book.
Notwithstanding the foregoing, Customer and AudiencePoint acknowledge that neither Customer nor AudiencePoint owns the individual email addresses included on or in the Address Book.
ii. AudiencePoint Intellectual Property
1. Statistical Data.
2. Feedback, Comments, and other Communication.
Customer may provide feedback, suggestions, and comments to AudiencePoint regarding the Services (“Feedback”). AudiencePoint shall have all ownership right, title, and interest in such Feedback. Notwithstanding the foregoing, to the extent that any Feedback is deemed to be owned by Customer, Customer hereby grants to AudiencePoint a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed, provided that such Feedback is anonymous.
Unless otherwise agreed by the parties, Customer hereby agrees that AudiencePoint may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants AudiencePoint a perpetual, nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.
Privacy and Security
AudiencePoint cares about the security of Customer’s Personal Information and User Account. AudiencePoint continuously works to protect the security of Personal Information and User Accounts, however, AudiencePoint cannot guarantee that unauthorized third-parties will not be able to circumvent AudiencePoint’s security measures. Customer agrees to notify AudiencePoint immediately of any unauthorized use of Customer’s User Account.
C. HIPAA and PHI.
Customer understands and acknowledges that the Services are not configured to receive and store personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and that AudiencePoint is neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA. As such, Customer agrees not to, and not to permit its users to, transmit, request, provide access to, submit, store, or include any PHI through the Services. Customer agrees that AudiencePoint may terminate its relationship with Customer immediately if Customer is found to be in violation of this Section.
D. EEA Data Transfer.
If Customer intends to transfer the Personal Information of an European Economic Area (the “EEA”) resident, Customer shall comply with all laws and receive all consents required under the EEA Data Protection Laws. Customer Obligations and Use of the Services.
Customer represents and warrants that Customer will comply with all applicable laws and regulations. Customer agrees that Customer will be responsible for determining whether the Services are suitable for Customer to use in light of any regulations that Customer may be subject to (for example, healthcare laws, banking laws, privacy laws or other laws). If Customer subject to regulations and use the Services, AudiencePoint will not be liable if the Services do not meet the requirements of those regulations.
Customer agrees not to duplicate, copy, or reuse any portion of AudiencePoint’s visual design elements or concepts without AudiencePoint’s prior express written permission. Furthermore, that Customer will not, nor permit any other party to: (i) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for any part of the Website or the Services; (ii) alter, modify, or prepare derivative works based on the Website or the Services or any materials related thereto; or (iii) use any part of the Website or the Services or any materials related thereto to create, invent or develop any computer program or other invention, work or device that performs, replicates, or utilizes the same or substantially similar functions as the Website or the Services or any materials related thereto.
Customer agrees not to take any action that imposes or may impose an unreasonable or disproportionately large load on AudiencePoint’s infrastructure; interferes or attempts to interfere with the proper working of the Services, bypasses any measures AudiencePoint may use to prevent or restrict access to any accounts, computer systems or networks applicable to the Services, use manual or automated software, devices, or other processes to “crawl” or “spider” any Website page, harvest or scrape any Content related to the Services or otherwise take any action in violation of AudiencePoint’s guidelines and policies.
Customer agrees not to upload, post, host, or transmit unsolicited email, SMS or “spam” messages, and will not transmit any worms or viruses or any code of a destructive nature.
Customer agrees not to modify, adapt or hack the Website or the Services or modify another application or website so as to falsely imply that it is associated with the Website, the Services or AudiencePoint. Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit all or any part of the Website or the Services.
Customer agrees to be responsible for the accuracy of all data and information that Customer provides AudiencePoint and that AudiencePoint will use when providing the Services. Incorrect or inaccurate data and information may negatively impact the results of the Services. AudiencePoint has no obligation to independently verify the data and information that Customer provides.
Customer agrees that it is Customer’s responsibility to procure or pay for any and all data or information that Customer receives or obtains from third-parties and deliver to AudiencePoint. Customer also agrees that Customer is responsible for obtaining any and all licenses and other permissions required in order for AudiencePoint to use such data or information in connection with the performance of the Services. AudiencePoint agrees to safeguard and keep confidential all such data and information.
Customer agrees and acknowledges that certain features of the Services depend on the continuing availability of software, products, tools, or applications that are used in connection with the Services that are not owned or operated by AudiencePoint and which may be operated outside the Services may not be run or controlled by AudiencePoint’s servers (“Third-Party Applications”)
AudiencePoint may cease providing any Third-Party Application features or services without notice and without entitling Customer to any refund, credit, or other compensation.
If Customer enables, installs, or connects any Third-Party Applications for use with the Services:
i. Customer Hereby:
- permits the transmission of and/or access to User Account information or Content to such Third-Party Applications;
- grants to AudiencePoint and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable right and license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of any data transmitted to or obtained by AudiencePoint from any Third-Party Application enabled, installed, or connected to AudiencePoint by Customer; and
- represents and warrants that it has provided all notices and obtained all consents required by law to grant the foregoing permissions, rights, and licenses and that doing do so will not violate any third-party’s privacy, Intellectual Property rights, or other rights.
ii. Customer acknowledges and agrees that:
- Third-Party Application not operated through the Services within the Customer’s User Account on the Website, may not be operated on or controlled by AudiencePoint or the Services. As such, AudiencePoint is not responsible for loss, misuse, breach, or unauthorized disclosure of Personal Information related to the Customer’s User Account or relationship with AudiencePoint.
- Any consent given by AudiencePoint permitting Customer to enable, install, or connect any Third-Party Application does not constitute AudiencePoint’s endorsement of such Third-Party Application; and
- AudiencePoint will not be held responsible for any Third-Party Applications Customer uses in connection with the Services, including but not limited to, for any disclosure, modification or deletion of Content resulting from any such transmission to or access by Third-Party Applications.
- Customer agrees to comply with any requests by AudiencePoint to remove any connections to or from other websites and/or applications to the Services which Customer installs.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER’S USE OF THE WEBSITE OR THE SERVICES IS AT CUSTOMER’S SOLE RISK. THE WEBSITE OR THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AudiencePoint DOES NOT WARRANT THAT: (i) THE WEBSITE OR THE SERVICES WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS; (ii) THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF THE WEBSITE OR THE SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE WEBSITE OR THE SERVICES WILL MEET CUSTOMER’S EXPECTATIONS; AND (v) ANY ERRORS IN THE WEBSITE OR THE SERVICES WILL BE CORRECTED. AUDIENCEPOINT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER EXPRESSLY ACKNOWLEDGE AND AGREE THAT AUDIENCEPOINT OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS OR AGENTS [or affiliates] SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE WEBSITE OR THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITE OR THE SERVICES; (iii) UNAUTHORIZED ACCESS TO TRANSMISSIONS OR ALTERATION OF CUSTOMER INFORMATION; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY WITH RESPECT TO THE WEBSITE OR THE SERVICES; (v) OR ANY OTHER MATTER RELATING TO THE WEBSITE OR THE SERVICES. IN NO EVENT SHALL AUDIENCEPOINT’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE WEBSITE OR THE SERVICES EXCEED THE AGGREGATE AMOUNT OF FEES PAID TO AUDIENCEPOINT DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM WAS MADE.
Customer understand that the technical processing and transmission of the Website or the Services may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
AudiencePoint will not be held liable for any delays or failure in performance of any part of the Service, from any cause beyond AudiencePoint’s control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.
Any notice to Customer will be effective when AudiencePoint sends it to the last email or physical address Customer gave AudiencePoint or when posted on the Website. Any notice to AudiencePoint will be effective when delivered [email@example.com].