Thank you for your interest in AudiencePoint, Inc. (“AudiencePoint”). AudiencePoint is a data analytics business that provides software service products for tracking and indexing send-time optimization (“STO”), real-time optimization (“RTO”) and other related time optimized email analytics data, and uses AudiencePoint Data (defined below) to improve subscriber activity (“Listfit”, and collectively with STO, RTO, and other AudiencePoint services offered from time to time, the “Products”) offered on or through www.audiencepoint.com, including any subdomains (the “Website” and together with the Products, the “Services”).
You are more than likely visiting the Website to use the Products because you or your employer have become an AudiencePoint customer (“Customer”) by subscribing or signing up to use the Products. You may also be visiting the Website to learn more about AudiencePoint and the Products (“Visitor”).
In either case, please carefully review the AudiencePoint Terms and any other policies made available to you as they define the terms and conditions under which you’re allowed to use the Services, and how AudiencePoint will treat your information. By visiting or using the the Services, or by clicking to accept or agree to the AudiencePoint Terms when this option is made available to you, you accept and agree to be bound and abide by the AUDIENCEPOINT Terms which are incorporated herein by reference. If you do not want to agree to the AudiencePoint Terms, you must not access or use the Services.
AudiencePoint wants to make sure that no unauthorized persons use the Services. As such, each individual user must be at least eighteen (18) years old and provide true, complete and up-to-date contact and billing information, and each employee or representative of a Business must also be authorized to access and use the Services on behalf of that Business. By using the Services, you represent and warrant that you meet all the requirements listed above, and that you will not use the Services in a way that violates any laws or regulations, the AudiencePoint Terms. AudiencePoint may refuse the Services, close User Accounts of any Customer, and change eligibility requirements at any time.
The scope of the Services that AudiencePoint provides will depend on your engagement with AudiencePoint whether on or through the Website or by your use of the Products. When you sign up for a User Account and agree to the AudiencePoint Terms, the term between you and AudiencePoint relating to your access and use of the Products begins and will continue for as long as you have a User Account or until you or we terminate your User Account, whichever happens first (the “Term”). If you sign up for a User Account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf. If you the Services for a limited period and later start using it again, you agrees that the Term will continue through to the point in time when Customer permanently ceases to use the Services.
ii. Use of Website and Other Communication.
If you have not signed up for a User Account with AudiencePoint, then the AudiencePoint Terms shall apply to you as a Visitor of the Website, as an individual receiving communication from AudiencePoint, or as recipient of an email or other communication sent by Customers through its use of the Services (“Customer Contact”).
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 (“User Account”) using an individualized user identification name (“User ID”) and personal user pass code (“Password,” and, together with User ID, shall mean “Credentials”). If Customer accesses the Services through an intermediary, Customer will be required to obtain login information from that intermediary. Customers are solely responsible for keeping Credentials confidential. Customers are also responsible for all User Account activity, 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. Customer acknowledges and agrees that any transaction or communications initiated through Customer’s User Account shall be deemed authorized by Customer. Customer shall be solely responsible for all costs, fees, liabilities, and other damages arising from or out of Customer’s access to its User Account or through its User ID.
B. User Account Disputes
AudiencePoint does not know the inner workings of 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 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.
AudiencePoint reserves the right, in its sole discretion, to change the Services, or any features on the Website or within the Products at any time. AudiencePoint reserves the right to change, revise, replace, or amend, any of the AudiencePoint Terms at any time and from time to time by posting revised AudiencePoint Terms on the Website and/or by notifying Customer of the new AudiencePoint Terms by sending an email to the last known email address of Customer, or by displaying prominent notice within the Services or on the Website. Unless Customer terminates its User Account within ten (10) days of receiving such notice, any revised or replaced version of the AudiencePoint Terms will become effective immediately and apply to any continued or new use of the Services. If you are a Visitor, any revised or replaced version of the AudiencePoint Terms will become effective after your continued use of the Website.
Payment and Fees.
When Customer registers, signs up, or subscribes to use or access the Products, Customer agrees to pay AudiencePoint all applicable fees, charges and costs (“Fees”) in accordance with the applicable Fees related to your access and use of the Products selected on or through your User Account. Unless and except as otherwise agreed to, all Fees are based on the Products subscribed to, payment obligations are non-cancelable and Fees paid are non-refundable.
B. Invoicing and Payment.
Customer agrees to pay AudiencePoint all Fees upon registering for the Products or within thirty (30) calendar days from the date of the invoice for such Fees, as applicable. Customer agrees to pay all Fees in United States dollars and be responsible for all wire transfer, credit card processing, 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, levies, duties, or other governmental assessments, as the case may be (“Taxes”). Customer is responsible for paying all Taxes associated with its purchase(s) and use of the Services hereunder, excluding any Taxes that relate to the income, property, or payroll of AudiencePoint. To the extent AudiencePoint is required to collect any Taxes and Customer does not provide AudiencePoint with a valid tax exemption certificate authorized by the appropriate taxing authority, AudiencePoint may charge Customer for any Taxes or require Customer to directly pay such Taxes to the applicable taxing authorities.
Customer is responsible for providing complete and accurate billing and contact information to AudiencePoint and notifying AudiencePoint of any changes to such information. If Customer has specified credit card or direct withdrawal or ACH payment from a bank account as an applicable payment mechanism, Customer authorizes AudiencePoint or its applicable processing agent to charge the credit card, or debit the bank account, on file for all Fees due. If Customer is using a credit card, Customer represents and warrants that Customer is authorized to use that credit card, and that any and all Fees may be billed to that credit card and will not be rejected. If AudiencePoint is unable to process Customer’s credit card, AudiencePoint will try to contact Customer by email and may suspend Customer’s User Account until payment is processed.
C. Payment Disputes and Late Payments.
In the event Customer disputes any portion of the Fees paid or payable by Customer (each a “Payment Dispute”), Customer must provide written notice to AudiencePoint within seven (7) days of the billing (“Payment Dispute Period”) and the parties will work together in good faith to promptly resolve the Payment Dispute. If Customer does not provide written notice of the Payment Dispute within the Payment Dispute Period, Customer will not be entitled to dispute such Fees.
Customer’s failure to pay any undisputed amounts due under the AudiencePoint Terms on a timely basis will be deemed a material breach of the AudiencePoint Terms. If any amount owed by Customer is overdue, AudiencePoint may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations so that all Fees become immediately due and payable. AudiencePoint will not exercise such acceleration right specified above if Customer timely exercises its right to dispute payments in accordance with Section 4.C. If AudiencePoint must take action to collect overdue Fees, Customer agrees to pay all reasonable costs and expenses incurred by AudiencePoint for collecting such overdue Fees including, for example, reasonable attorney fees and court costs.
Term and Termination.
A. Suspension and Termination
AudiencePoint may suspend the Services or its obligations to Customer 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 Customer’s use and access to the Products at any time for any reason. If Customer terminates 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 when AudiencePoint has not breached its contractual obligations, Customer agrees to pay AudiencePoint all amounts that would have been payable as if it had not been terminated. Except as required by law, 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 must be made in writing.
A. AudiencePoint Intellectual Property.
Customer agrees that AudiencePoint is granting Customer access to the Services in accordance AudiencePoint Terms. The AudiencePoint EULA governs Customer’s license to use and access the Products. Except for this right to access the Website, or rights under the EULA, AudiencePoint is not granting Customer any licenses or rights to use the Services or any of AudiencePoint’s Intellectual Property, nor is AudiencePoint selling, transferring or granting Customer any rights in or to the Services or any of AudiencePoint’s Intellectual Property. “Intellectual Property” shall mean any and all patents, patent applications, disclosures and inventions, design rights, trademarks, service marks, trade dress, trade names, logos, corporate names, domain names, copyrights and copyrightable works (including software and computer programs), code, mask works and rights in data and databases, trade secrets, know-how, and all 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, and forms of protection of similar nature anywhere in the world, in and to the Services and all modifications, extensions, customizations, scripts or other derivative works of thereof.
As such, AudiencePoint reserves and retains all right, title and interest in and to the Services and all Intellectual Property owned by or licensed to AudiencePoint, whether such right, interest or title currently exists or hereafter developed. No such rights are granted to hereunder other than as expressly set forth herein, and AudiencePoint (and its licensors, where applicable) reserve all rights not expressly granted herein. Although under certain circumstances AudiencePoint may grant Customer the right use AudiencePoint’s trademarks or trade names, Customer shall not be permitted to use any of AudiencePoint’s trademarks or trade names or other Intellectual Property without AudiencePoint’s prior written consent. Customer agrees not to challenge the validity of, or AudiencePoint’s ownership of AudiencePoint’s Intellectual Property in and to the Service or any part thereof. Customer agrees to provide AudiencePoint with assistance in connection with AudiencePoint’s enforcement of its rights at AudiencePoint’s expense. Any enforcement of AudiencePoint’s rights will remain within AudiencePoint’s sole discretion, including, whether and how to proceed with any enforcement activity. 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 AudiencePoint 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, uploaded, provided, used and/ or created.
i. Customer Intellectual Property.
As between Customer and AudiencePoint, AudiencePoint agrees that all customer data consisting of Customer Contact email addresses and/or other associated information, personal or otherwise, related to Customer’s contacts, recipients and subscribers (“Customer Data”) imported, uploaded, submitted or otherwise provided by Customer in connection with the Services shall be the Customer’s sole and exclusive property or its licensors.
By signing up for, accessing, and using the Services, Customer is required to import, upload, transmit, transfer or otherwise disclose Customer Data to AudiencePoint. As partial consideration and as a condition for Customer’s use of the Services Customer hereby grants AudiencePoint and its Affiliates (A) a limited, worldwide, non-exclusive, irrevocable, royalty-free, fully paid, sublicensable and transferable license to receive, use, store, copy, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works, or otherwise process Customer Data (including interoperating of the Services with any associated third-party applications) during the Term, and (B) a perpetual, worldwide, non-exclusive, irrevocable, royalty-free, fully paid, sublicensable and transferable license to receive, use, store, copy, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works, or otherwise process Contact Analytics (defined below) (including interoperating of the Services with any associated third-party applications).
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 represents and warrants that it has the necessary consents to permit AudiencePoint to use Customer Data 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 any Customer Data; provided, however, that AudiencePoint may use, sell, license, disclose, or otherwise transfer to any other customer or other third-party, Statistical Data (defined below), including Aggregate Data (defined below) when: (1) Customer is not identified as the source of such data; (2) the email address is pseudonymized (i.e., hashed); (3) the email address is not EEA personal data; and (4) AudiencePoint does not itself use the email address to send any of its own emails to the Customer Contact, unless such information is obtained by AudiencePoint directly from such Customer Contact or otherwise required by law.
ii. AudiencePoint Intellectual Property.
1) Statistical and Analytical Data.
Notwithstanding anything to the contrary in the Terms or elsewhere, AudiencePoint may monitor, collect, extract, compile, analyze, synthesize, attribute, store, or otherwise use data and performance information, including, without limitation, routing data (e.g., server hostnames, server IP addresses, and timestamps), delivery data (e.g., whether, when, where, and how an email was sent or delivered), engagement and campaign data (e.g., whether, when, where, and how an email was opened or clicked), and message data (e.g., message type, tone, length, and presentation) (“Usage Data”) from Customer Data when Customer uses the Services during the Term. The Usage Data and any other information, inferences, results, presumptions, or other data and information created, developed, or produced by processing Customer Data in connection with Customer’s use of the Services is contact analytics (“Contact Analytics”).
AudiencePoint may aggregate, anonymize, and/or compile any Contact Analytics including Usage Data with other data, including data obtained via third party sources and including that of other AudiencePoint customers (“Aggregate Data” and collectively with Usage Data and Contact Analytics, “Statistical Data”). AudiencePoint may also make inference from Statistical Data to identify and understand trends in the various interactions with the Services, and conduct internal business analysis based on meta-data about usage, feature adoption and forecasting. AudiencePoint uses Statistical Data to provide and improve the Services, make more informed predictions, decisions, optimization, and develop and provide data enrichment.
Customer agrees that all such Statistical Data shall be sole and exclusive property of AudiencePoint regardless of the origin of the email addresses with which such data is associated (“AudiencePoint Data”). Customer also agrees that AudiencePoint and/or its Affiliates or licensors own all right, title and interest in and to such AudiencePoint Data and all related software, technology, documentation, and Content provided in connection with such Statistical Data including all rights, title and interest in the Intellectual Property of the foregoing.
2) Feedback, Comments, and other Communication.
Customer may provide feedback, recommendations, corrections, enhancement requests, suggestions, and other comments to AudiencePoint regarding the Services (collectively, “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, incorporate, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed, into the Service, any Content, the Products, and/or the Website.
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, non-exclusive, 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 Personal Information. AudiencePoint continuously works to protect the security of Personal Information, 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.
Customer Obligations and Use of the Services.
A. Responsibilities of Customer.
B. Restrictions of Use.
Customer agrees not to duplicate, copy, reuse. sell, resell, license, sublicense, distribute, rent, lease, or otherwise make the Services or any portion of AudiencePoint’s visual design elements or concepts directly available to any third party without AudiencePoint’s prior express written permission. Furthermore, Customer agrees 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 Services; (ii) alter, modify, or prepare derivative works based on the Services or any materials related thereto; or (iii) use any part of 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 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 Services or modify another application or website so as to falsely imply that it is associated with the Services or AudiencePoint. Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit all or any part of 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.
AudiencePoint may, in its reasonable discretion, remove or refuse to store or transmit any Customer Data that violates the AudiencePoint Terms. However, AudiencePoint has no obligation to review Customer Data (including, for example, any email content) and has no obligation to otherwise act. Customer agrees that any inaction by AudiencePoint shall not waive any right otherwise granted to AudiencePoint herein.
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:
A. Customer Hereby:
- Authorizes AudiencePoint to access, receive and store data received or transmitted from Third-Party Applications through the Services (as such data access, received, and/or stored being Customer Data);
- 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.
B. 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, AudiencePoint EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY IMPLIED BY APPLICABLE LAW INCLUDING THOSE THAT MAY ARISE BY COURSE OF DEALING OR PERFORMANCE. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AudiencePoint DOES NOT WARRANT THAT: (A) THE SERVICES WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF THE SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S EXPECTATIONS; AND (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT AUDIENCEPOINT, 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: (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) 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 SERVICES; (C) UNAUTHORIZED ACCESS TO TRANSMISSIONS OR ALTERATION OF CUSTOMER INFORMATION; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY WITH RESPECT TO THE SERVICES; (E) OR ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT SHALL AUDIENCEPOINT’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO 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 agrees to indemnify and hold AudiencePoint, its officers, directors, shareholders, agents, or Affiliates harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims Customer makes that aren’t allowed under the AudiencePoint Terms due to a limitation of liability” in Section 11 hereof, or other provision. Customer also agrees to indemnify and hold AudiencePoint harmless from any losses, including legal fees and expenses, that directly or indirectly result from: (a) Customer Data and Content; (b) use of the Services; (c) Violation of any laws or regulations, including, but not limited to any applicable data privacy and protection laws; (d) third-party claims that Customer or someone using Customer’s Credentials acted, or did something that, if true, would violate or does violate any of the AudiencePoint Terms; (e) misrepresentations; or (f) breach of any representations or warranties made to AudiencePoint.
For the purposes of the AudiencePoint Terms, the term AudiencePoint includes Affiliates. As used herein, “Affiliate” means any individual, corporation, limited liability company or other entity that directly or indirectly controls, is controlled by, or is under common control with, AudiencePoint. For the purpose of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interest of a party or the right to receive more than fifty percent (50%) of the profits or earnings of the entity.
B. Survival and Severability.
In the event that AudiencePoint’s relationship with Customer is terminated, the following sections of the AudiencePoint Terms will continue to apply: Intellectual Property, Customer Obligations, Disclaimer, Limitations of Liability, Third-Party Applications, Indemnification, and Miscellaneous. If any portion of the AudiencePoint Terms is determined to be illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall not affect any other portion of the AudiencePoint Terms.
C. Assignment; Waiver; Third Party Beneficiaries.
Customer may not assign nor delegate any of Customer’s rights or obligations under the AudiencePoint Terms to anyone else, whether by operation of law or otherwise, without AudiencePoint’s express prior written consent. AudiencePoint may assign, transfer, charge, subcontract, or delegate any of its rights or obligations under t the AudiencePoint Terms to any other individual or entity at AudiencePoint’s sole discretion. No waiver of any term or condition of the AudiencePoint Terms will be construed as a waiver of any other term or condition. Waiver of any default under the AudiencePoint Terms will not be construed as a waiver of any other default. No waiver of any provision in the AudiencePoint Terms or any right or remedy hereunder or thereunder will be effective, unless in writing and signed by the party against whom such waiver is sought to be enforced. There will be no waiver even if there is a delay in exercising or a partial exercising of any right or remedy under the AudiencePoint Terms. Subject to the foregoing, each and all of the provisions hereof will be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns. There are no third-party beneficiaries.
the AudiencePoint Terms do not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties. Nothing in the AudiencePoint Terms will be construed to prevent AudiencePoint from marketing, licensing, selling, or otherwise providing the Services or any aspects AudiencePoint’s technology or other services to any third party. Nothing in the AudiencePoint Terms will be construed to prevent the Customer from obtaining services similar to the Services from a third party.
E. Data Portability.
Customer understands that the technical processing and transmission of 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.
F. Governing Law; Jurisdiction.
Each party agrees that the laws of the State of Tennessee, United States of America, without regard for choice or conflict of laws rules, excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods; and the Uniform Commercial Code of the State of Tennessee (or any other state that could otherwise apply to the AudiencePoint Terms), will apply to any dispute (both as to validity and performance) related to the AudiencePoint Terms or the Services. Any dispute related to these the AudiencePoint Terms or the Services will be decided by the state and federal courts located in Chattanooga, Hamilton County, Tennessee, United States of America, and each party will be subject to the jurisdiction of those courts.
G. Force Majeure; Changes to Law.
AudiencePoint will not be held liable for any delays or failure in performance of any part of the Services, from any cause beyond AudiencePoint’s control. This includes, but is not limited to, acts of god, pandemics, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, or the acts of hackers, third-party internet service providers, or changes to law or regulations.
In the event that any litigation or dispute resolution procedure is utilized to enforce the provisions of the AudiencePoint Terms, the prevailing party in such action shall be entitled to the recovery of its reasonable attorneys’ fees and expenses, court costs, dispute resolution costs and expenses, expert witness fees and expenses and such other costs as are fixed by the court or other party serving to resolve such dispute.
I. Electronic Signature.
Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included on any of the AudiencePoint are intended to authenticate the writing and to have the same force and effect as manual signatures. Electronic signature means any electronic, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including e-mail electronic signatures.
Any notice to Customer will be effective when AudiencePoint sends it to the last email or physical address Customer provided AudiencePoint or when posted on the Website. Any notice to AudiencePoint will be effective when delivered to firstname.lastname@example.org.
K. Entire Agreement.
The AudiencePoint Terms make up the entire agreement between AudiencePoint in relation to its subject matter and supersede all prior agreements, representations, and understandings.