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Terms of Use

Thank you for your interest in AudiencePoint, Inc. (“AudiencePoint,” “we” or “us”) and our digital channel send-time analysis and optimization services, digital channel campaign services and other related services (the “Services”) offered through www.audiencepoint.com (the “Website”). You are more than likely visiting our Website because we have entered into a statement of work with you that sets forth the type of Services we will provide you and our charges for those Services (a “Statement of Work”). You may also be visiting our Website to learn more about us and our Services.

If we have entered into a Statement of Work with you, that Statement of Work, any subsequent Statements of Work, these Terms of Use, our Privacy Policy and any other terms or policies available on the Website will together form a legally binding agreement between us and you. If you are visiting our Website to learn more about us and our Services, you agree to be legally bound by these Terms of Use, our Privacy Policy and any other terms or policies available on the Website. In either case, please carefully review these Terms of Use, our Privacy Policy and any other terms or policies available on the Website.

If you are an individual acting on your own behalf, these Terms of Use will apply to you. If you are acting as an employee or a representative of a business or other organization (a “Business”), these Terms of Use will also apply to your employer or the Business you represent. As used in these Terms of Use, “you, “your” and similar words mean the individual user of our Services and, where the context allows it, the Business the individual user is employed by or represents.

Eligibility

We want to make sure that no unauthorized persons use our Services or the Website. As such, each individual user must be at least 18 years old and each employee or representative of a Business must be authorized to access the Website and use our Services on behalf of that Business.

Accounts

You are solely responsible for keeping your account information, login and password confidential. You are also responsible for all activity that takes place on any account that you have set up, regardless of whether you authorized the use of the account. You agree that you will immediately notify us of any unauthorized use of your account. We are not responsible for any losses due to stolen or hacked logins or passwords. For security reasons, we may only reset your password. If you are accessing the Services through an intermediary, you will be required to obtain login and password information from that intermediary. We don’t know the inner workings of your organization or the nature of your personal relationships, and we don’t arbitrate disputes over who has set up or accessed an account. You agree that you will not request access to or information about an account that you have not set up, and that you will resolve any account-related disputes directly with the other party. We reserve the right to decide who owns an account based on the content of the emails in that account, and if multiple people or entities are identified in the content, then we will rely on the contact information listed for that account.

Statements of Work

The scope of the Services that we will provide to any person is always set forth in a Statement of Work. If you have not entered into a Statement of Work with us, please contact us at (844)692-8343 or info@audiencepoint.com so that we can answer any questions you may have and tell you more about our Services.

We may enter into one or more Statements of Work with you and each separate Statement of Work may provide for different types of Services that are performed at different times. Each Statement of Work will be effective when it has been signed by duly authorized representatives of us and you. If there is an irreconcilable conflict between these Terms of Use and any Statement of Work, you and we agree to follow the terms in the Statement of Work.

Fees

You agree to pay us the fees, charges and costs (“Fees”) that are set forth in each Statement of Work in accordance with the terms of such Statement of Work. If no payment terms are included in a Statement of Work, you agree to pay us all Fees within thirty (30) calendar days from date the date of the invoice for such Fees. You agree 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 we are required to collect any sales, use, value added or other similar taxes, we may charge them with the Fees or require you to directly pay such taxes to the applicable taxing authorities.

Privacy Policy

We are committed to safeguarding your privacy. Our Privacy Policy is incorporated and made a part of these Terms and Conditions so please carefully review our Privacy Policy located at www.audiencepoint.com/privacy-policy.

Security

We care about the security of your information and account. We continuously work to protect the security of your information and account; however, we cannot guarantee that unauthorized third parties will not be able to circumvent our security measures. Please notify us immediately of any unauthorized use of your account.

Term

If you and we have entered into a Statement of Work, the term of our contractual relationship (the “Term”) begins on the date set forth in the Statement of Work. The Term will continue for as long as you use the Services. If you use the Services for a limited period of time and later start using them again, you agree that the Term will continue through to the point in time when you permanently cease to use the Services.

Suspension and Termination

We may suspend the Services or our obligations to you under any Statement of Work if you have materially breached your obligations to us, including your obligations to pay our Fees. You and we may terminate the Services or any Statement of Work at any time for any reason. If you terminate a Statement of Work because we have materially breached our contractual obligations to you, you will not be required to pay the Fees that would have become payable following the material breach. If you terminate a Statement of Work when we have not breached our contractual obligations to you, you agree that you will pay us all amounts that would have been payable under the Statement of Work if it had not been terminated. We will not be required to retain any data or information associated with your account following a termination of the Services or if you have not accessed your account for a period of twelve months. Any termination of the Services or any Statement of Work must be made in writing.

Intellectual Property

You agree that we are granting you access to the Website and the Services solely to perform our obligations under the Statements of Work we have entered into with you. Except for this right to access the Website and the Services, we are not granting you any licenses or rights to use the Website, the Services or any of our Intellectual Property, nor are we selling, transferring or granting you any rights in or to the Website, the Services or any of our Intellectual Property. As such, we reserve and retain all right, title and interest in and to the Website, the Services and all of our Intellectual Property, whether such right, interest or title currently exists or is developed in the future. The words “Intellectual Property” mean and include 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. Although we under certain circumstances may grant you the right use our trademarks or trade names, you are not permitted to use any of our trademarks or trade names without out prior written consent. You agree that you will promptly notify us if you become aware of any possible infringement of our Intellectual Property and, at our expense, fully cooperate with us in any legal action taken against third parties to enforce our rights with respect to our Intellectual Property. You agree to safeguard the Services and our Intellectual Property from unauthorized access.

As between you and us, we agree that the email address lists you provide us in connection with the performance of the Services shall be your sole and exclusive property. Except in connection with the performance of the Services, we agree that we will not use, sell or otherwise transfer to any third party the email address lists you provide us. Notwithstanding the foregoing, you and we acknowledge that neither one of us own the individual email addresses included on the email address lists that you provide us in connection with the performance of the Services. In connection with the performance of the Services, we will collect and retain certain time data related to the email addresses included on the email address lists that you provide us in connection with the performance of the Services. As between you and us, you agree that all such time data shall be our sole and exclusive property regardless of the origin of the email addresses with which such data is associated.

Your Obligations

You represent and warrant that you will comply with all applicable laws and regulations. You agree that you will be responsible for determining whether our Services are suitable for you to use in light of any regulations that you may be subject to (for example, healthcare laws, banking laws, privacy laws or other laws). If you are subject to regulations and use our Services, we will not be liable if our Services do not meet the requirements of those regulations.

You agree that you will not duplicate, copy, or reuse any portion of our visual design elements or concepts without our prior express written permission. Furthermore, that you will not, nor permit any other party to, (a) 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; (b) alter, modify, or prepare derivative works based on the Website or the Services or any materials related thereto; or (c) 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.

You agree that you will not take any action that imposes or may impose an unreasonable or disproportionately large load on our infrastructure; interferes or attempts to interfere with the proper working of the Services, bypasses any measures we 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 our guidelines and policies.

You agree that you will not upload, post, host, or transmit unsolicited email, SMS or “spam” messages. You agree that you will not transmit any worms or viruses or any code of a destructive nature.

You agree that you will not 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. You agree that you will not reproduce, duplicate, copy, sell, resell or exploit all or any part of the Website or the Services.

You agree that you will be responsible for the accuracy of all data and information that you provide us and that we will use when we provide the Services. Incorrect or inaccurate data and information may negatively impact the results of the Services. We have no obligation to independently verify the data and information that you provide us.

You agree that it is your responsibility to procure or pay for any and all data or information that you receive or obtain from third parties and deliver to us. You also agree that you are responsible for obtaining any and all licenses and other permissions required in order for us to use such data or information in connection with our performance of the Services. We agree that we will safeguard and keep confidential all such data and information.

If you are located in the European Economic Area (EEA) or if any messages will be sent to anyone in the EEA, you agree that any messages that that we send on your behalf will describe how you will use any data collected, including for your use of AudiencePoint (and you will get express consent to transfer data to AudiencePoint as part of this process, and you’ll otherwise comply with whatever privacy policy you have posted) and will comply with all applicable regulations, as well as data protection, electronic communication, and privacy laws that apply to the messages. You have the necessary permission to allow us to receive and process data and send communications to that individual on your behalf.

DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOUR USE OF THE WEBSITE OR THE SERVICES IS AT YOUR SOLE RISK. THE WEBSITE OR THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT (a) THE WEBSITE OR THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (b) THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF THE WEBSITE OR THE SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE OR THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (e) ANY ERRORS IN THE WEBSITE OR THE SERVICES WILL BE CORRECTED. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT AUDIENCEPOINT OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS OR AGENTS 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 WEBSITE OR 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 WEBSITE OR THE SERVICES; (c) UNAUTHORIZED ACCESS TO TRANSMISSIONS OR ALTERATION OF YOUR INFORMATION; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY WITH RESPECT TO THE WEBSITE OR THE SERVICES; (e) OR ANY OTHER MATTER RELATING TO THE WEBSITE OR THE SERVICES. IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE WEBSITE OR THE SERVICES EXCEED THE AGGREGATE AMOUNT OF FEES PAID TO US DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM WAS MADE.

Miscellaneous

We reserve the right to modify these Terms of Use from time to time at our sole discretion. Any such modification will be effective immediately upon our posting of the revised Terms of Use on our Website. We will provide no other notice to you. It is your responsibility to review our Terms of Use from time to time to ensure that you continue to agree with our Terms of Use. All new or modified features related to the Website or the Services, including the release of new features, tools and resources, will be subject to these Terms of Use.

The sections titled Intellectual Property, Your Obligations, Disclaimer, Limitations of Liability and Miscellaneous shall survive the termination of these Terms of Use.

If any portion of these Terms of Use is determined to be illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall not affect any other portion of these Terms of Use. You may not assign any of your rights under these Terms of Use to anyone else. We may assign our rights to any other individual or entity at our discretion.

You 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.

These Terms of Use 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).

If we or you are unable wholly or in part by a force majeure event to carry out our or your obligations under these Terms of Use, other than your obligation to make payments to us, then the party affected by a 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. 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.

In the event that any litigation or dispute resolution procedure is utilized to enforce the provisions of these Terms of Use, 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.

These Terms of Use were last updated on May 31, 2016.

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