End-User License Agreement
IMPORTANT – PLEASE READ CAREFULLY
This Agreement: This End-User License Agreement (this “Agreement”) is entered into between AudiencePoint, Inc., a Delaware corporation (“AudiencePoint”) and You. This Agreements constitutes a legally binding agreement with respect to Your downloading and use of the AudiencePoint Software and Your access to and use of the AudiencePoint Website, the Products, the AudiencePoint Promotional Materials, the Audience Point Online Materials, the AudiencePoint Documentation and any other products or services from time to time offered by AudiencePoint (collectively, the “AudiencePoint Services”). You will be deemed to have accepted the terms and conditions set forth in this Agreement the first time You download the AudiencePoint Software or access or use any of the AudiencePoint Services. You may be required to affirmatively accept this Agreement on the AudiencePoint Website, but the failure to affirmatively accept this Agreement shall not limit the legally binding nature of this Agreement.
Additional Terms and Conditions: This Agreement incorporates and includes the Additional Terms and Conditions that are referenced in this Agreement. You will be deemed to have accepted the Additional Terms and Conditions the first time You download the AudiencePoint Software or access or use any of the AudiencePoint Services. You may be required to affirmatively accept any or all of the Additional Terms and Conditions on the AudiencePoint Website, but the failure to affirmatively accept the Additional Terms and Conditions shall not limit the legally binding nature of the Additional Terms and Conditions. If there is any contradiction between this Agreement and the Additional Terms and Conditions, then the Additional Terms and Conditions and shall take precedence.
Electronic Signature(s): You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the AudiencePoint Software or the AudiencePoint Services. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
Jurisdictional Restrictions: If the laws of the country from which You will be downloading or using the AudiencePoint Software or accessing or using the AudiencePoint Services prohibits You from downloading or using the AudiencePoint Software or accessing or using the AudiencePoint Services, or if You are prohibited from using the AudiencePoint Services because of your age or other circumstances, you are not permitted to access or use the AudiencePoint Services.
Table of Contents:
- License and Restrictions
- What You Should and Should Not Expect from AudiencePoint
- What AudiencePoint Expects from You
- Term; Termination; Updates
- Disclaimer of Warranties and Limitation of Liability
- Additional Terms and Conditions
1. Definitions; Interpretation.
1.1. Definitions. The defined terms set forth below shall have the following meanings:
“Additional Terms and Conditions” means the terms and conditions and policies that are referenced in Section 7.1 of this Agreement and any other terms and conditions and policies that are displayed on the AudiencePoint Website, as any such terms and conditions and policies may from time to time be updated or modified.
“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 or You. For the purpose of this definition, the word “control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting equity securities of the applicable party.
“Agreement” means this End-User License Agreement, as it may from time to time be updated or modified.
“AudiencePoint” shall have the meaning set forth in the first paragraph of this Agreement.
“AudiencePoint API” means the application program interface consisting of the set of routines utilized by the AudiencePoint Software to provide the AudiencePoint Software functionality for a given platform or operating system, the AudiencePoint API being included in or linked to the AudiencePoint Software as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof.
“Audience Point Documentation” means any documentation, electronic, hard copy or otherwise, provided by AudiencePoint.
“AudiencePoint Online Material” means the AudiencePoint buttons and graphs available for download on the AudiencePoint Website at www.audiencepoint.com/ , as from time to time modified.
“AudiencePoint Promotional Materials” means any and all trademarks, trade names, names, signs, logos, banners, and any other materials and Content, in whatever form, owned or used by AudiencePoint for the promotion of AudiencePoint, the AudiencePoint Software or the Audience Point Services.
“AudiencePoint Services” shall have the meaning set forth in the first paragraph of this Agreement. The term the AudiencePoint Services may include one, multiple or all of the products and services that that are included in the term the AudiencePoint Services.
“AudiencePoint Software” means the software distributed by AudiencePoint for internet applications, including without limitation the AudiencePoint API, the AudiencePoint UI and the AudiencePoint Documentation, as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof.
“AudiencePoint Staff” means the officers, directors, employees and agents of AudiencePoint or its Affiliates, or any other persons hired by AudiencePoint or its Affiliates.
“AudiencePoint Website” means any and all elements, contents and the “look and feel” of the websites located at the URLs www.audiencepoint.com, www.xref.us and any other URLs from which the AudiencePoint Software can be accessed or used.
“AudiencePoint UI” means the user interface of the AudiencePoint Software.
“Content” means 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.
“Effective Date” means the date on which You download the AudiencePoint Software or access or use the AudiencePoint Services for the first time.
“IP Rights” means (i) patents, pending patent applications, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow, trade secrets and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights.
“Password” means a code You select, which, in combination with the User ID, gives You access to Your User Account.
“Products” means any AudiencePoint products.
“User Account” means the account with a User ID and a Password that You create to download the AudiencePoint Software or to access or use of the AudiencePoint Services.
“User ID” means the identification code You selected, which in combination with the Password, gives access to Your User Account.
“You” means You, the end user of the AudiencePoint Software, also used in the form “Your” where applicable.
1.2 Interpretation. References to the singular include the plural and vice versa, and references to one gender include the other gender. Any phrase introduced by the expressions “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. License and Restrictions.
2.1 License. Subject to the terms of this Agreement, AudiencePoint hereby grants You a limited, non-exclusive, non-sublicensable and non-assignable license to use the AudiencePoint Software on Your individual computer, phone or PDA for the sole purpose of Your individual use of the Internet analysis and message delivery applications provided by AudiencePoint and any other applications that may hereafter be made available to You by AudiencePoint. You are allowed to use the AudiencePoint Software at work to analyze and make communications relating to Your business in accordance with this Agreement and any applicable Additional Terms and Conditions.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the AudiencePoint Software or any part thereof. You agree to safeguard and keep confidential Your User ID and Password and will not allow any person access to or use of the Audience Point Software or any AudiencePoint Services.
2.3 No Modifications. You agree that only AudiencePoint or its authorized agents shall have the right to alter, maintain, enhance, customize or otherwise modify the AudiencePoint Software. AudiencePoint shall not be responsible for any malfunction, error or failure of the AudiencePoint Software resulting from any alteration, maintenance, enhancement, customization or modification performed by You or any unauthorized third party. You shall not disassemble, decompile, reverse engineer, reverse assemble, reverse compile, recompile or make extracts from the AudiencePoint Software or create any derivative works or similar methods therefrom or permit others to do so without written the express consent of AudiencePoint.
2.4 Third Parties. The AudiencePoint Software may be incorporated into, and may incorporate itself, software and other technologies owned and controlled by third parties. Any and all third party software or technologies that may be distributed together with the AudiencePoint Software may be subject to Your express acceptance of a license agreement with such third party. You acknowledge and agree that You are not entering into a contractual relationship with AudiencePoint or its Affiliates regarding such third party software or technology and that you will look solely to such third party with respect to the enforcement of, or any claim under, such license agreement.
2.5 Exclusive Ownership. Any and all IP Rights in and to the AudiencePoint Software and the AudiencePoint Services are and shall remain the exclusive property of AudiencePoint or its licensors (collectively, the “AudiencePoint IP”). Nothing in this Agreement shall transfer all or any part of the Audience Point IP to, or to vest all or any part of the Audience Point IP in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the Audience Point IP. AudiencePoint shall be entitled to declare any unauthorized use of the AudiencePoint IP a material breach of this Agreement. All title and IP Rights in and to any third party Content that is not contained in the AudiencePoint Software or the AudiencePoint Services, but may be accessed through use of the AudiencePoint Software or the AudiencePoint Services, is the property of the respective owners thereof and may be protected by applicable copyright or other intellectual property laws.
2.6 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the AudiencePoint IP Rights or any other rights of AudiencePoint related to the AudiencePoint Software or the AudiencePoint Services, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
2.7 Use of AudiencePoint API.
2.7.1 You may use of the AudiencePoint API provided that:
(ii) You use the AudiencePoint API only in connection with the AudiencePoint Software.
2.7.2 Any use of the AudiencePoint API other than in accordance with this Agreement shall be subject to AudiencePoint’s prior written consent.
2.8 AudiencePoints Promotional Materials. You are not entitled to use any of the AudiencePoint Promotional Materials.
3. What You Should and Should Not Expect From AudiencePoint.
3.1 No Warranties. Installing and using the AudiencePoint Software will enable You to communicate with other people. AudiencePoint cannot guarantee that You will always be able to communicate with or reach other people, nor can AudiencePoint guarantee that You can gather user data and deliver messages without disruptions, delays or communication-related flaws or that all Your communications will always be delivered to other people.
3.2 Evaluation Only, Beta Program or Trial License Restrictions. If you have received any Products or access to any AudiencePoint Services for use in relation to participation in any AudiencePoint beta program or with any other evaluation or trial license (“Trial License”) the following restrictions apply: The Products, the AudiencePoint Services and any related Documentation are provided for evaluation purposes only. The Trial License provides a non-exclusive, non-transferable, revocable license to use the Products, the AudiencePoint Services and any related Documentation for evaluation purposes only. Trial Licenses may cease to be functional without notice or on specified expiration dates at the sole discretion of AudiencePoint. Within five (5) days following the expiration date, You must return to AudiencePoint, or destroy, all copies of the Products, the AudiencePoint Services and any related Documentation.
3.2.1 Content of Communications. The Content of any uploads, postings or other communications transmitted, disseminated or displayed through the use of the AudiencePoint Software or the AudiencePoint Services (“Communications”) through Your User Account is exclusively Your responsibility. AudiencePoint does not monitor the Content of any Communications and You may be exposed to Content that is offensive, harmful to minors, indecent or otherwise objectionable and You will use the AudiencePoint Software and the AudiencePoint Services at Your own risk.
3.2.3 Third Party IP Rights. You acknowledge and agree that Communications that include Content that is owned or licensed by a third party are prohibited unless you have the requisite written permission or license from the owner or licensee of such Content. Any such written permission or license must permit You to grant the licenses set forth in Section 3.2.4 below.
3.2.4 License. You hereby grant to AudiencePoint a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable and transferable license to: (i) reproduce, modify and publish the Content in any Communications available on the publicly accessible areas of the AudiencePoint Website (e.g. AudiencePoint forum, blogs) for the purpose of displaying and distributing such Content on the AudiencePoint Website; and (ii) distribute and/or display through the AudiencePoint Software any Content that You provide or make available using the AudiencePoint Services for the sole purposes of making the AudiencePoint Software and the Products available to You.
3.2.5 Removal of Content. AudiencePoint reserves the right (but shall have no obligation) to decide whether any Content in any Communication complies with this Agreement and any Additional Terms and Conditions. AudiencePoint may in its sole discretion remove such Content and/or terminate this Agreement and Your User Account if You any Content included in any Communication is in breach of this Agreement and/or any Additional Terms and Conditions at any time and without prior notice to You.
3.3 Utilization of Your Computer. AudiencePoint Software may utilize the processor and bandwidth of the computer (or other applicable device) You are utilizing, for the limited purpose of accessing information from affinity networks through multiple communications platforms. AudiencePoint will use its commercially reasonable efforts to protect the privacy and integrity of the computer resources (or other applicable device) You are utilizing and of Your communication, however AudiencePoint cannot give any warranties in this respect.
3.4 New Versions of the AudiencePoint Software. AudiencePoint, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the AudiencePoint Software and the AudiencePoint Services. AudiencePoint has no obligation to make available to You any subsequent versions of the AudiencePoint Software or the AudiencePoint Services. You may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the AudiencePoint Software or the AudiencePoint Services.
3.5 Suspension. AudiencePoint may, in its sole discretion and to the maximum extent permitted by applicable laws, modify or discontinue or suspend Your ability to use any version of the AudiencePoint Software or the AudiencePoint Services, and/or disable any AudiencePoint Software or the AudiencePoint Services You may already have accessed or installed without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where You, at AudiencePoint’s discretion, are in breach of this Agreement, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
4. What AudiencePoint Expects From You.
4.1 Lawful purposes. You will use the AudiencePoint Software or the AudiencePoint Services solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You; (b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the AudiencePoint Software or the communication; (c) send any unsolicited communication not permitted by applicable law (d) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way; (e) use the AudiencePoint Software to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; or (f) use (including as part of your user name) any material or content that is subject to any third party proprietary rights, unless you have a license or permission from the owner of such rights.
4.2 Representations. You represent and warrant that You are authorized to enter into this Agreement. Furthermore, You represent and warrant that You will at any and all times satisfy Your obligations under this Agreement and comply with all laws, regulations and policies that may apply to the access and use of the AudiencePoint Software and the AudiencePoint Services.
4.3 Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD AUDIENCEPOINT AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF YOUR (A) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, OR (C) USE OR MISUSE OF THE AUDIENCEPOINT SOFTWARE OR THE AUDIENCE POINT SERVICES, OR (D) COMMUNICATIONS SPREAD BY MEANS OF THE AUDIENCEPOINT SOFTWARE OR THE AUDIENCE POINT SERVICES.
4.4 Utilization of Your Computer. If Your use of the AudiencePoint Software is dependent upon the use of a processor and bandwidth owned or controlled by a third party, You acknowledge and agree that Your license to use the AudiencePoint Software is subject to You obtaining consent from the relevant third party for such use. You represent and warrant that by accepting this Agreement and using the AudiencePoint Software, You have obtained such consent.
4.5 Export Restrictions. The AudiencePoint Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the AudiencePoint Software as well as end-user, end-use and destination restrictions issued by national governments. This software is controlled under ECCN 5D992.b.1 of the Export Administration Regulations (“EAR”) per CCATS # G047973 and thus may not be exported or re-exported to or downloaded by any person in any countries controlled for anti-terrorism reasons under the EAR, which include Iran, North Korea, Cuba, Syria and Sudan. EAR 742.15(a), Title 15 Code of Federal Regulations. Moreover, the software may not be exported or re-exported to or downloaded by any person or entity subject to U.S. sanctions regardless of location.
4.6 Government Users. The AudiencePoint Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the AudiencePoint Software or the Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
5. Term; Termination; Updates.
5.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either AudiencePoint or You as set forth below. Any Additional Terms and Conditions that do not become effective on the Effective Date will be effective on the date on which they are accepted by You or You use the applicable AudiencePoint Services, and will remain effective until terminated by either AudiencePoint or You as set forth below.
5.2 Termination. You may terminate this Agreement at any time by written notice to AudeincePoint. AudiencePoint may terminate this Agreement upon thirty days prior written notice to You. In addition, and without limiting any other remedies, AudiencePoint may immediately terminate this Agreement and Your access to and use of the AudiencePoint Software and the AudiencePoint Services if AudiencePoint reasonably believes that You (a) materially breach of this Agreement or any Additional Terms and Conditions, (b) create problems or actual or potential legal liabilities, (c) infringe on any third party’s IP Rights, (d) engage in fraudulent, immoral or illegal activities, or (e) engage in other similar activities. AudiencePoint shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to Your User Account. AudiencePoint reserves the right to cancel Your User Accounts if it has been inactive for more than one (1) year.
5.3 Consequences of Termination. Upon termination of this Agreement (a) all licenses and rights to use the AudiencePoint Software and the AudiencePoint Services shall immediately terminate; (b) You will immediately cease any and all use of the AudiencePoint Software and the AudiencePoint Services; and (c) You will immediately remove the AudiencePoint Software from all hard drives, networks and other storage media and destroy all copies of the AudiencePoint Software in Your possession or under Your control.
5.4 Updates and Modifications. AudiencePoint reserves the right to modify this Agreement and any of the Additional Terms and Conditions from time to time at its sole discretion. Any such change, update or modification will be effective immediately upon posting the modified version of this Agreement of any of the Additional Terms and Conditions on the AudiencePoint Website. AudiencePoint will provide no other notice to You. It is Your responsibility to review the AudiencePoint Website from time to time to ensure that You continue to agree with all of the terms and conditions applicable to the AudiencePoint Services. If you no longer agree to the terms and conditions applicable to the AudiencePoint Services after a modification, you must cease using the AudiencePoint Services.
6. Disclaimer of Warranties and Limitation of Liability.
6.1 No Warranties: THE AUDIENCEPOINT SOFTWARE AND THE AUDIENCEPOINT SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER; AUDIENCEPOINT DOES NOT MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE AUDIENCEPOINT SOFTWARE AND THE AUDIENCEPOINT SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. AUDIENCEPOINT FURTHER DOES NOT REPRESENT OR WARRANT THAT THE AUDIENCEPOINT SOFTWARE AND THE AUDIENCEPOINT SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES AUDIENCEPOINT WARRANT ANY RECEIPT OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF THE MESSAGE DELIVERY MADE THROUGH THE AUDIENCEPOINT SOFTWARE OR IN CONNECTION WITH THE AUDIENCEPOINT SERVICES.
6.2 Your Own Risk: You acknowledge and agree that You will be using the AudiencePoint Software and the AudiencePoint Services at Your own risk.
6.3 No Liability: TO THE EXTENT THAT ANY OF THE AUDIENCE SOFTWARE OR THE AUDIENCEPOINT SERVICES ARE PROVIDED TO YOU FREE OF CHARGE, YOU ACKNOWLEDGE AND AGREE THAT AUDIENCEPOINT, THE AUDIENCEPOINT STAFF AND THEIR RESPECTIVE AFFILIATES WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE AUDIENCE SOFTWARE OR THE AUDIENCEPOINT SERVICES. FURTHERMORE, THAT YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE AUDIENCE SOFTWARE OR THE AUDIENCEPOINT SERVICES IS TO IMMEDIATELY REMOVE ANY APPLICABLE SOFTWARE FROM YOUR COMPUTERS AND SERVERS AND TO CEASE THE USE OF THE APPLICABLE AUDIENCE SOFTWARE AND AUDIENCEPOINT SERVICES.
6.4 Limitation of Liability: IN NO EVENT SHALL AUDIENCEPOINT, THE AUDIENCEPOINT STAFF AND THEIR RESPECTIVE AFFILIATES BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE AUDIENCEPOINT SOFTWARE; ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE THE AUDIENCEPOINT SOFTWARE OR THE AUDIENCEPOINT SERVICES; OR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF; (I) ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING THE AUDIENCEPOINT SOFTWARE OR THE AUDIENCEPOINT SERVICES; (II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY AUDIENCEPOINT FOR ANY REASON; OR (III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE AUDIENCEPOINT SOFTWARE TO YOU. THE LIMITATIONS ON AUDIENCEPOINT’S LIABILITY SET FORTH IN THIS SECTION 6 SHALL APPLY WHETHER YOU OR AUDIENCEPOINT, THE AUDIENCEPOINT STAFF OR THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
6.7 Jurisdiction’s Limitations: As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited to the maximum extent possible within the applicable legislation.
7. Additional Terms and Conditions.
7.1 Location of Additional Terms and Conditions. In addition to this Agreement, You agree to comply with the terms and conditions and the polices that are described below in this Section 7.1 (the “Additional Terms and Conditions”). You acknowledge and agreement that you have carefully reviewed the Additional Terms and Conditions, all of which are made part of this Agreement:
- The AudiencePoint API Policy located at www.audiencepoint.com/.
- The AudiencePoint Online Material Policy located at www.audiencepoint.com/.
- The AudiencePoint Payable Internet Communications Products Policy located at www.audiencepoint.com/.
- The AudiencePoint Service Provider Agreement located at www.audiencepoint.com/ .
- The AudiencePoint Message Delivery Service Terms of Service located at www.audiencepoint.com/ .
- The AudiencePoint Broadcast Terms of Service located at www.audiencepoint.com/ .
8.1 Entire Agreement. The terms and conditions of this Agreement, including without limitation the Additional Terms and Conditions, constitute the entire agreement between You and AudiencePoint with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding this subject matter. Nothing in this section shall exclude or restrict the liability of either You or AudiencePoint arising out of fraud or fraudulent misrepresentation.
8.2 Partial Invalidity. If any provision of this Agreement or any part of a provision is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remainder of this Agreement shall not be affected.
8.3 No Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If AudiencePoint waives a breach of any provision of this Agreement it shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
8.4 Assignment. You are not allowed to assign this Agreement or any rights hereunder. AudiencePoint is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party
8.5 Applicable Law and Jurisdiction. This Agreement is intended as a contract under and shall be construed and enforceable (both as to validity and performance) shall be interpreted and the rights and obligations of the parties shall be determined in accordance with the laws and procedures and provisions of the State of Tennessee (other than conflict of law rules which might result in the application of the laws of any other jurisdiction). Each party hereby irrevocably consents and agrees that any legal action or proceedings brought under this Agreement shall be brought in the state or federal courts located in Hamilton County, Tennessee, and by execution and delivery of this Agreement, each party hereby (a) submits to the jurisdiction of the foregoing courts with respect to any legal action or proceedings brought under this Agreement, (b) irrevocably agrees to be bound by any final judgment (after any appeal) of any such court with respect thereto, and (c) irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venues of any suit, action or proceedings with respect hereto brought in any such court, and further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceedings brought in any such court has been brought in an inconvenient forum. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner to the extent provided by law.
8.6 Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail.
8.7 Survival. Sections 1, 2.2-2.6, 3.2, 4.1, 4.3, 5.3, 6, 7.1 and 8 of this Agreement, and any other provision of the Additional Terms and Conditions which are expressed to survive or operate in the event of termination, shall survive termination of this Agreement and the applicable Additional Terms and Conditions for whatever reason.
8.9 Force Majeure. In the event any party is rendered unable wholly or in part by a force majeure event (as hereinafter defined) to carry out its obligations under this Agreement, other than its obligations to make payments hereunder, then the party affected by force majeure event shall promptly give written notice to the other party explaining such event. Following such notice, the effective obligations of the party giving such notice shall be suspended only during the continuance of the force majeure event, provided it demonstrates continued due diligence in seeking a remedy to the cause of such event. As used in this paragraph, the term “force majeure event” shall mean, acts of God, acts of public enemies, acts of terrorism, wars, blockades, insurrections, riots, epidemics, landslides, lightening, earthquakes, fires, storms, floods, washouts, civil disturbances, explosions and any other cause not within the reasonable control of the Party claiming a suspension hereof despite its due diligence.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON, INSTALL THE AUDIENCEPOINT SOFTWARE OR USING THE AUDIENCEPOINT SERVICES, YOU EXPRESSLY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.