Terms of Service

Updated: February 1, 2026 

PLEASE READ AND REVIEW AUDIENSE GENERAL TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) CAREFULLY. THE TERMS AND CONDITIONS ALONG WITH ANY STATEMENTS OF WORK, A SERVICE LEVEL AGREEMENT AND/OR ORDER FORM(S) (“STATEMENT OF WORK OR SOW”) TOGETHER FORM A LEGAL AND BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN ELEVAR, LLC D/B/A AUDIENSE (“AUDIENSE”), A DELAWARE LIMITED LIABILITY COMPANY, AND YOU, THE CLIENT AS REFLECTED IN YOUR SOW OR OTHERWISE ASSOCIATED WITH YOUR ACCOUNT (“CUSTOMER” OR “YOU”) TOGETHER WITH AUDIENSE, THE “PARTIES”, AND EACH, A “PARTY”. YOUR RIGHT TO ACCESS AND USE THE PRODUCT AND/OR SERVICES (AS LISTED IN YOUR SOW) IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE AGREEMENT. BY CLICKING ON THE “SIGN UP” BUTTON OR BY INSTALLING THE ELEVAR APP OR SIGNING AN SOW OR ACCESSING AND USING A PRODUCT OR SERVICE, YOU AGREE TO BE BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, AUDIENSE IS UNWILLING TO ALLOW THE USE OF AUDIENSE PRODUCTS OR SERVICES BY YOU AND YOU MUST DISCONTINUE THE USE NOW.

AUDIENSE’S PRIVACY POLICY IS AVAILABLE AT HTTPS://GETELEVAR.COM/LEGAL/PRIVACY/ (“PRIVACY POLICY”). THIS PRIVACY POLICY RELATES TO THE PRODUCTS AND SERVICES PROVIDED THROUGH OUR WEBSITE, WEB APPLICATIONS AND OTHER MEANS AND SETS OUT HOW BUXTON COMPLIES WITH CURRENT DATA PROTECTION LAWS. AS WELL, THIS PRIVACY POLICY DESCRIBES HOW WE COLLECT, USE AND DISCLOSE CERTAIN PERSONAL DATA. PRIVACY POLICY DOES NOT COVER THE PRACTICES OF COMPANIES BUXTON DOES NOT OWN OR CONTROL OR PEOPLE BUXTON DOES NOT MANAGE.

  1.        Scope of Work.Audiense is the developer and owner of consumer data analytics tools for the purposes of developing and implementing website strategies and providing website data analysis, including all enhancements, add-on modules, add-on services, training materials, derivatives, updates, fixes, improvements, or modifications to such tool which are now in existence or hereafter created (“Product(s)”) and certain paid subscription services provided to You as set forth in the SOW in a professional, timely and competent manner (“Service(s)”) including any specified Services and/or any Documentation delivered by Audiense to the Customer pursuant to a Statement of Work (“Deliverables”). Products and Services may be accessible by clicking on the “Sign Up” button or by installing the Elevar app from the Shopify app store https://apps.shopify.com/gtm-datalayer-by-elevar or will be provided to You by Audiense (“Platform”). The Product or Service enables You or a third-party acting on Your behalf to submit or input information and data, including but not limited to (1) information and data about (a) customers and prospects (including personally identifiable information about them), (b) sales, purchases, and transactions, (c) products, and (d) website visits; (2) content provided or transmitted by You or Your Authorized Users to the Services; and (3) Customer Marketing Content (defined, infra) (collectively “Customer Data”) for the purpose(s) set forth in this Agreement. When You submit Customer Data to the Product or Service, such Customer Data is integrated into the Product or Service, and may be used to create or generate analytics, data, results, links, reports, documents, and other information (“Results”) or the documents made available to You online via the Platform which sets out a description of and instructions for any Services (“Documentation”). Subject to these Terms and Conditions, Audiense hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right to access and use the Product or Services and the corresponding Results solely for Your legitimate, day-to-day internal business operations.

For the sake of clarity, the foregoing right to access and use granted to You only applies to an add-on module and/or add-on Service if such module and/or Service is expressly identified in an SOW signed by You and accepted by Audiense and You will pay all fees associated with such module and/or Service. You may only authorize Your employees and officers to access and use the Product on Your behalf (collectively, “Authorized Users”). Once You deem an employee or officer an Authorized User, the individual is an Authorized User regardless of whether s/he is actively accessing the Product at any given time. Depending on the Product, the number of Authorized Users may not exceed the number identified in the SOW signed by You. Once You have executed an SOW, created Your Customer Product Account (“Account”), and paid the fees set forth in the SOW, depending on the Product or Service, Audiense may provide You with username and password credentials for use by Authorized Users to verify their identity and authorization to access and use the Product (“Access Credentials”). You acknowledge and agree that You and any Authorized Users’ access to and use of the Product, Services and any Results is for the sole use of Your employees and any sharing of the Access Credentials with third parties is strictly prohibited all of which is dependent upon their ongoing compliance with these Terms and Conditions. To the extent Audiense offers You an opportunity to access and use add-on modules and/or add-on Services, You and Audiense will enter into an additional SOW regarding such add-on modules and/or add-on Services, the terms of which are hereby incorporated by reference and form part of the Agreement. In the event of any conflict between these Terms and Conditions and any SOW, these Terms and Conditions will govern and control unless, and only to the extent that, the parties have expressly agreed in writing in the applicable SOW that a specific provision of these Terms and Conditions is superseded.

Web Portal Purchases. Notwithstanding anything to the contrary herein, Audiense may, in its sole discretion, make certain Products or Services — including without limitation, Elevar — available for purchase and activation directly through the Platform without requiring a separately executed SOW. In such cases, Your completion of the online purchase process, creation of an Account, and/or activation of the applicable Product or Service through the Platform shall constitute Your agreement to these Terms and Conditions and to any applicable pricing, subscription, and usage terms presented at the time of purchase. All such purchases made via the Platform shall be deemed valid and binding as if executed under an SOW.

You may elect to have Audiense provide services such as training, installation, integration, or consulting services (“Professional Services”) in connection with a Service. Fees for the Professional Services are in addition to Fees and are payable in full when You engage Audiense to perform the Professional Services. Unless otherwise agreed, Audiense will perform all Professional Services remotely. The specific business terms concerning the Professional Services, such as the duration of the Professional Services, the number of hours ordered, shall be set forth in the applicable SOW. Unless otherwise set forth in the applicable SOW if the Professional Services are of a recurring nature, the duration of the Professional Services shall be for the duration of Your subscription to the Service to which the Professional Services relate. If the Professional Services are not completed at the end of the term set forth in the SOW due to Audiense’s failure to make the necessary resources available to You or to perform the obligations, the term will automatically be extended to allow such Professional Services to be completed. Some or all elements of the Professional Services may be provided through third-party service providers. Professional Services are non-cancellable, and all Professional Services Fees are non-refundable.

You may electronically submit via the Platform either during the subscription enrolment process or after enrolment when You wish to upgrade the parameters within which You and Your Authorized Users may access and use the Platform (“Account Parameters,”), as set forth in the applicable Order Form to subscribe to additional features, or order any Professional Services. Technical Support, Implementation Support, and Training. Primary technical information is provided through documentation available on the Platform and  online Knowledge Base. Audiense accepts support questions through the Platform. Responses to support questions submitted through the Platform are processed and provided during our normal business hours. Audiense will attempt to respond to support questions within one (1) business day, although there is no promise or guarantee of any specific response time. Phone support, if any, is described on the Platform.

Audiense provides the following technical support at no additional charge: addressing issues of availability and identifying and troubleshooting issues that prevent You from using the Platform as designed. Unless otherwise described on the Platform, technical support issues and training beyond that scope are treated as Professional Services and are billed at our then-current professional services rate.

You shall be responsible for setting up and configuring the Services, including without limitation any Non-Audiense Services and any provisioning of access to the Services to its Authorized Users.  You shall be responsible for obtaining and maintaining, at Your expense, all of the necessary telecommunications, computer hardware, software, services, and Internet connectivity required by You or any Authorized User to access the Services from the Internet, as well as any Non-Audiense Services and their configuration, setup, functionality, and compatibility and integration with Audiense Services. In the event that Audiense assists or advises You with any Services setup, configuration, or support, in no event shall such assistance or advice be construed as legal advice.

  1. TRIAL PERIOD, BETA FEATURES AND FREE PRODUCTS.

2.1       Audiense may offer certain Products and Services on a trial basis. If You register for a trial, Audiense will provide that Product or Service to You free of charge during the period set forth in the applicable Statement of Work and SOW (“Trial Period”). Following the Trial Period, if You have not canceled Your subscription as set forth in the SOW, Your subscription will automatically convert to a paid subscription, and the first day after the Trial Period shall constitute the first day of the Initial Subscription Term. Following the Trial Period, if You have not selected a subscription tier, Your access to the Platform will be limited to tools, features, functionalities, or modules of the Platform that are made available for You to use at no charge, even if such tools, features, functionalities, or modules may otherwise be available for purchase as part of a paid subscription  and Audiense will automatically set capacity limitations. During the Trial Period, all representations and warranties set forth in Section 13 shall not apply, and Audiense will not be liable to You for damages of any kind related to including, without limitation, Your use of the Platform or Website

2.2       “Beta Features” are pre-release features, functionalities, or modules of the Platform that are made available to You to use and evaluate. From time to time, Audiense may invite You to try Beta Features. You may accept or decline any such trial at Your sole discretion. An important part of this beta process is getting real-world testing of the Beta Features before a general release. If You agree to participate in a beta trial, the following additional terms and conditions will apply: You agree to use and test the Beta Features and to provide timely feedback, comments, and suggestions to our team. You agree that Audiense shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback (as defined below)  without compensation or attribution to You. You acknowledge that Beta Features are for evaluation purposes only and not for production use, are not considered part of the Service under the Agreement, are not supported, are provided “AS IS” with no warranties of any kind, and may be subject to additional terms. Unless otherwise stated, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available or we elect to discontinue such Beta Feature. Audiense may discontinue Beta Features at any time in our sole discretion and may never make them generally available. Audiense has no duty to repair, replace, fix, or otherwise respond to any issue You may have in connection with any Beta Feature. AUDIENSE HAS NO LIABILITY WHATSOEVER FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA FEATURE, AND YOU USE ANY BETA FEATURE AT YOUR OWN RISK.

2.3       Audiense may, in our sole discretion, provide “Free Products” for Customer’s use free of charge at Your sole discretion. If You use any or all of our Free Products, the following additional terms and conditions will apply: You acknowledge that Free Products are not considered part of the Service under the Agreement, are not supported, are provided “AS IS” with no warranties of any kind, and may be subject to additional terms. Audiense may discontinue Free Products (or Your access to any Free Products) at any time in Audiense’s sole discretion. AUDIENSE HAS NO LIABILITY WHATSOEVER FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A FREE PRODUCT, AND YOU USE ANY FREE  PRODUCT AT YOUR OWN RISK.

  1. FEES. You shall pay the amount for the Product or Service as set forth in the corresponding SOW (“Fees”) and any other amount applicable to add-on modules or add-on Services ordered by You. Your obligation to pay such Fees shall begin on the execution of the SOW (“Start Date”) or as set forth in the applicable SOW. Audiense will send invoices for the Fees by email, regular mail or both. For any upgrades or additions to the Product or Service that You order Audiense will invoice You at the time of the order. For any use of the Platform in excess of the established parameters or allotted order volume defined in Your SOW or Statement of Work (“Overages”), Audiense will invoice You at the end of the billing period and at the time of Your cancellation, or as specified in Your SOW. For any Professional Services determined by a predefined scope of work, Audiense will invoice You the associated Professional Services Fees and any applicable Taxes in advance in full, unless otherwise set forth in an SOW. And for any Professional Services of a recurring nature, Audiense will invoice You the associated Professional Services Fees and any applicable Taxes in advance on the same periodic basis that Audiense invoices You the Fees for the Service to which the Professional Services relate. All amounts invoiced are due and payable upon receipt of the invoice, unless otherwise specified in the SOW or Statement of Work Audiense accepts payment by check, credit card, or bank wire. By providing Audiense with credit card or checking account information for payment, You hereby authorize Audiense to charge the account on record for all Fees due. You agree that all Fees are nonrefundable except as expressly set forth herein. When paying with a credit card, a standard, flat-rate, non-refundable, processing fee, as charged by the credit card company, will be added to Your total. This fee will appear as a separate line item on Your invoice or receipt. Any travel that might be required of Audiense that would be incremental to the Fees listed in the SOW will be reimbursed to Audiense personnel at cost, subject to Your prior approval and travel policies. If You request Services not specified in an SOW, the Parties shall enter into an additional SOW or amendment, setting forth the additional Services, Fees and other mutually agreed upon terms. Payments that are past due shall accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Audiense shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from You that are more than thirty (30) days delinquent.
  2. AUTOMATIC RENEWALS. UNLESS OTHERWISE SPECIFIED ON AN APPLICABLE SOW, YOUR SUBSCRIPTION TO THE SERVICES COMMENCES ON YOUR REGISTRATION FOR AN ACCOUNT, AND SHALL CONTINUE IN EFFECT FOR THIRTY (30) DAYS (THE “INITIAL TERM”). THEREAFTER, AND UNLESS OTHERWISE SPECIFIED IN AN SOW, EACH APPLICABLE SOW SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE THIRTY (30) DAY TERMS (EACH A “RENEWAL PERIOD”), UNLESS EITHER PARTY PROVIDES NOTICE TO THE OTHER PARTY OF ITS INTENTION NOT TO RENEW PRIOR TO EXPIRATION OF THE INITIAL TERM OR THE THEN-CURRENT RENEWAL PERIOD. YOU MUST PROVIDE AT LEAST FIVE (5) DAYS PRIOR NOTICE AND AUDIENSE MUST PROVIDE AT LEAST FIFTEEN (15) DAYS PRIOR NOTICE OF NON-RENEWAL. THE INITIAL TERM AND ALL RENEWAL PERIODS WILL COLLECTIVELY BE REFERRED TO AS THE “TERM.”

TO CANCEL THIS SUBSCRIPTION, PLEASE EMAIL AUDIENSE AT [email protected] OR CALL 1-888-228-9866. IF YOU DO NOT CANCEL PRIOR TO THE COMMENCEMENT OF THE APPLICABLE RENEWAL TERM, YOUR CUSTOMER ACCOUNT WILL AUTOMATICALLY BE CHARGED THE AMOUNT LISTED ON THE ORDERING DOCUMENT (PLUS ANY APPLICABLE INCREASES IN FEES OF WHICH YOU HAVE BEEN PREVIOUSLY GIVEN NOTICE) FOR THE RESPECTIVE RENEWAL PERIOD.

On each anniversary of the last day of the calendar month in which the Start Date occurred, Audiense may increase the Fees by up to ten percent (10%) and at any time during a Renewal Term increase the Fees or charge other fees for any portion of the Product or Service, provided, that if You do not agree to the increase or charge implemented solely under this Section 4, then You may give Audiense written notice of termination within thirty (30) days of Audiense’s notice of such increase or charge, in which case You shall continue to pay the Fees in place before the proposed increase or charge until the last day of the calendar month in which Your notice of termination is delivered, and this Agreement shall terminate with respect to that portion of the Product or Service on such date.

All Fees and other amounts payable under this Agreement are exclusive of taxes, value added tax, levies, duties, or similar governmental assessments, including value-added, sales, use, excise, or withholding taxes (collectively, “Taxes“). You shall be responsible for the payment of all such Taxes imposed on Your use of the Products or Services under these Terms and Conditions, excluding only taxes based solely on Audiense’s net income. If Audiense is required to collect and remit any Taxes, Audiense will include such Taxes in the SOW, and You agree to pay the amount unless You provide Audiense with a valid tax exemption certificate authorized by the appropriate taxing authority and You shall be responsible for all penalties, fines, and other liabilities related to the improper claim of a tax exemption. If any applicable law or regulation regarding Taxes changes during Your Term and such changes result in an increased tax liability for Audiense, You agree that Audiense may adjust the pricing to reflect the additional Taxes payable. For Customers based in the United States, any applicable Taxes will be determined based on the laws and regulations of the taxing authority(ies) governing the “Ship To” location provided by You in the SOW. Where Taxes are based upon the location(s) receiving the benefit of the Products or Services, You have an ongoing obligation to notify Audiense of such location(s) if different than Your business address listed in the applicable SOW. If You are required by law to withhold any Taxes from the payments due to Audiense, the amount payable by You shall be increased such that the net amount received by Audiense, after withholding or deduction of such Taxes, shall equal the amount that would have been received in the absence of such withholding or deduction. You shall promptly provide Audiense with a receipt or other documentation reasonably requested by Audiense to confirm payment of such Taxes. and You shall be responsible for all penalties, fines, and other liabilities related to the improper claim of exemption.

  1. RESERVATION OF RIGHTS.Except with respect to any Third-Party Materials (defined below), Audiense is and shall remain the sole and exclusive owner of all right, title, and interest in and to (a) the Product or Service; (b) the Results and Documentation, (c) data and information related to You or Your Authorized Users’ access to and use of the Product or the Results, including data and information that is used by Audiense to compile statistical and performance information related to the provision and operation of the Product (“Resultant Data”), (d) any inventions, creative works, or tangible embodiments of Feedback (defined below) reduced to practice, conceived, developed, created, produced, or authored by or on behalf of Audiense, and (e) all patent, copyright, trademark, trade secret, database protection, and intellectual property and proprietary rights (“Intellectual Property Rights”) in or related to the foregoing. The applicable third-party suppliers own all right, title, and interest, including all Intellectual Property Rights, in and to any Third-Party Materials. You have no right, license, or authorization with respect to any of the foregoing except the limited rights set forth in Section 1 above. Without limiting Audiense’s rights, You hereby acknowledge Audiense’s right to collect, develop, use, and authorize others to use Resultant Data.
  2. CHANGES TO SERVICES AND TERMS AND CONDITIONS. Audiense reserves the right, in its sole discretion, to make any changes to the Product, Services, Documentation or the Results, in whole or in part, that it deems necessary or useful, including: (a) to maintain or enhance: (i) the quality or delivery of Audiense’s Services to its clients; (ii) the competitive strength of or market for Audiense’s Services; or (iii) the Product’s cost efficiency or performance; (b) to comply with any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction (“Law”), or (c) based on the availability of third-party services or Third-Party Materials. Some changes will be provided to You at no additional charge. In the event Audiense adds additional functionality to a particular Product or Service, Audiense may condition the implementation of such modifications on Your payment of additional Fees. Audiense will notify You before additional Fees are implemented.

Audiense may modify these Terms and Conditions from time to time for any lawful business purpose, including, without limitation: (i) to reflect updates or improvements to the Products or Services; (ii) to address operational, technical, or security needs; (iii) to comply with applicable laws, regulations, or industry standards; (iv) to introduce new features, functionality, or service offerings; or (v) to update administrative information such as effective dates, versioning, or formatting (collectively, “Updates”). If Audiense makes any material Updates, Audiense will provide notice to You at the email address associated with Your Account or through in-product messaging. The updated Terms and Conditions will also be posted on this site, and You are responsible for reviewing the site regularly to ensure that You and Your Authorized Users remain in compliance with the most current version. Material Updates will become effective on the date specified in Audiense’s notice, and all other Updates will become effective upon posting to the site.

Your or any Authorized User’s continued access to or use of the Product or Service following the effective date of any Update constitutes Your acceptance of the updated Terms and Conditions. If You do not agree to any Update, Your sole remedy is to terminate this Agreement by providing notice to Audiense.

  1. SUSPENSION OF SERVICES. Audiense may suspend or otherwise deny You or Your Authorized User’s access to or use of all or any part of the Product, Third-Party Materials, and/or the Results for any reason, without incurring any resulting obligation or other liability and with or without notice to You, including if: (a) required by applicable Law or Audiense receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Audiense to do so or (b) Audiense believes, in its sole discretion, that: (i) You or any Authorized User has failed to comply with any term of the Agreement or accessed or used (or intends to access or use) the Product, Services, Documentation or the Results for a purpose not expressly authorized by the Agreement; or (ii) You or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Product, Services, Third-Party Materials, Documentation or the Results. This provision does not limit any of Audiense’s other rights or remedies, whether at law, in equity, or under the Agreement.
  2.          USE RESTRICTIONS

8.1       You shall not permit any other person or entity to access or use the Product, Services, Documentation, Results, or any third-party software, data, content, or components of or relating to the Product (“Third-Party Materials”) except as expressly permitted by the Agreement and/or any applicable third-party agreements governing Third-Party Materials. For purposes of clarity and without limiting the generality of the foregoing, You shall not and shall not permit any other person or entity to: (a) copy the Documentation, Results (except for Your internal business purposes and as set forth in Section 9), the Product, Services or Third-Party Materials or modify or create derivative works or improvements of the Product, Services, Documentation,  Results, or any Third-Party Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Product, Services, Documentation,  Results (except that You may distribute and make available the Results solely as expressly permitted under Section 8), or any Third-Party Materials to any other person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Product or any Third-Party Materials, in whole or in part; (d) bypass or breach any security device or protection used by Audiense or a third-party supplier or access to or use of the Product, Services, Third-Party Materials, Documentation or the Results other than by an Authorized User through the use of his or her own then-valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Product, the Results, the Documentation or Third-Party Materials any information or materials that are unlawful or injurious or contain, transmit, or activate any harmful or disruptive viruses, software, hardware, or other technology or device (“Harmful Code”); (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Product or Audiense’s provision of Services to any third-party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, terms and conditions, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Product, the Results, or any Third-Party Materials; (h) access or use the Product, the Results, or any Third-Party Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third-party or that violates any applicable Law; (i) access or use the Product, Service, Documentation, Results, or any Third-Party Materials for purposes of competitive analysis or the development, provision, or use of a competing software service or product or any other purpose that is to Audiense’s or its third-party suppliers’ detriment or commercial disadvantage; (j) upload or submit personal information or personally identifiable information (other than the information necessary to set up Your Account) through the Product or Service or otherwise provide such information to Audiense, (k) access or store any material that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity or causes damage or injury to any person or property (l) use any GPS based tools and or reports  to identify or track individuals or people groups or to study sensitive areas such as abortion clinics, adult venues, political events, military bases, prisons, gun stores, labor union offices, public schools K-12th grade, services supporting vulnerable populations, houses of worship, etc. or where prohibited by law (such as in Washington state healthcare facilities,) (m)  implement a virtual boundary (geofence) for the purpose of identifying or inferring consumer health data where prohibited by federal, state or local laws or where such laws require consumers’ affirmative consent for the implementation of such virtual boundary or (n) otherwise access or use the Product, the Results, or any Third-Party Materials beyond the scope of the authorization granted under this Agreement or any applicable third-party agreement governing Third-Party Materials.

8.2       You acknowledge that some Services may enable or assist in the access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that You do so solely at Your own risk. Audiense makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by You, with any such third party. Any contract entered into and any transaction completed via any third-party website is between You and the relevant third party, and not Audiense. Audiense recommends that You refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Audiense does not endorse or approve any third-party website nor the content of any of the third-party website made available through Audiense’s Platform.

  • Non-Audiense Products and Services. You may use the Services to interact with non-Audiense products or services including webshop or e-commerce platforms or any third-party marketing tools, applications, or services  (“Non-Audiense Services”). If You choose to integrate the Services with any Non-Audiense Services, You will ensure that Your use of the integration does not conflict with the Non-Audiense Services Provider’s (“Provider”) terms and conditions or the Agreement. Audiense is not responsible for Your compliance with the terms and conditions for Non-Audiense Services, nor does Audiense represent that the Services will not breach or otherwise violate the terms and conditions of the Non-Audiense Service.

Any acquisition or use by You of such Non-Audiense Services, and any exchange of data between You and any Provider of Non-Audiense Services is solely between You and the applicable Provider. Audiense does not warrant or support any Non-Audiense Services, whether or not they are designated by Audiense as “certified” or otherwise. Audiense is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Audiense Services or its Provider. You acknowledge and agree that Audiense shall not be held responsible, under any theory of liability, for any damages or injuries to You or any third party arising out of or related to Non-Audiense Services, including, but not limited to, damages or injury resulting from Audiense’s functionality with Non-Audiense Services.

Further, some Non- Audiense Services may require You or Audiense to provide certain Customer Data that Audiense is processing on Your behalf back to the Provider. In these cases, Audiense considers Your request to integrate with the Non-Audiense Services as instruction to provide this data to the Provider according to the Provider’s terms and conditions. If You do not want this data to be provided to the Provider, You will immediately request the suspension of the integration with the respective Provider. You acknowledge and agree that Audiense shall not be held responsible, under any theory of liability, for data or information provided to Provider in connection with Non- Audiense Services.

8.4.        Permitted Uses of Results. You may share any Results with third-parties in the United States with whom You do business with in the ordinary course and scope of Your legitimate business operations only via the functionality provided within the Product or Service (which specifically allows You to share a read-only format of the Results via a link to the Product); however, You and Your Authorized Users shall not, and shall not permit any other person or entity to, rent, lease, lend, sell, sublicense, assign or otherwise use the Results in any way that is competitive to Audiense or for any purpose that is detrimental to Audiense or results in Audiense being at a commercial disadvantage. You agree that such third parties may not share, distribute, disclose, transmit, or reproduce the Results or use the Results for any purpose other than the limited purpose for which You and the third-party have engaged in a business relationship. You agree to make clear to all such third parties that the Results are provided “AS IS” with no warranties of any kind and that any use of such the Results is at the third-party’s risk.

  1. CUSTOMER OBLIGATIONS. You have and will retain sole control over and responsibility for: (a) all access to and use of the Product, Services, Documentation,  Results, and any Third-Party Materials by or through Your Account or systems, including through the Access Credentials assigned to Your Account or through links provided by or through the Product or via email from Audiense; (b) Your information technology infrastructure, including computers, software, hardware, databases, electronic systems, database management systems, and networks; and (c) all conclusions, decisions, acts, or omissions based on You and Your Authorized Users’ access to and use of the Product, the Results, or Third-Party Materials and all conclusions, decisions, acts, or omissions based on any third-party access to or use of the Results. You shall employ all physical, administrative, and technical controls and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials to Your Authorized Users and to protect against any unauthorized access to or use of the Product, Services, Documentation, or  Results. You are solely responsible for obtaining and maintaining, at Your own expense, any equipment, hardware, and third-party software necessary to access and use the Product, including internet access, network connections and telecommunications links from Your systems to Audiense’s data centers, and shall maintain strong password configurations and You will notify Audiense if You require stronger password configuration settings than the standard provided. You shall also provide and maintain accurate, complete, and current Account information, including contact information, in connection with Your Account and You will notify Audiense of any changes made to any technical or administrative contact information in a timely matter. You acknowledge that if You fail to do so, You may not receive important notices from Audiense, and Audiense shall not be liable for the failure of any notices to reach You due to inaccurate, outdated, or incomplete contact information. You shall develop Your own disaster recovery and business continuity plans that address potential disruptions in accessing Audiense’s Services. You shall implement policies and procedures to protect Your systems from unauthorized or accidental use, modification, or deletion. You shall immediately notify Audiense of any security incidents that may affect Audiense and its Products or Services. You shall provide all cooperation and assistance as Audiense may reasonably request to enable Audiense to exercise its rights and perform its obligations under and in connection with the Agreement. You shall cooperate with Audiense with respect to Audiense’s investigation and enforcement of the Agreement. Audiense may review Your or Your Authorized Users’ use of the Product, Services, Documentation or Results, but it has no duty to do so. If You become aware of any actual or threatened activity prohibited by the Agreement, You shall, and shall cause Your Authorized Users to, immediately: (y) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (z) notify Audiense by email to [email protected] but in no event more than twenty-four (24) hours following discovery of such breach or of threatened activity. You accept the risks associated with, and will be responsible and primarily liable for, activity that occurs in connection with Your Account and Access Credentials, whether or not You authorized such activity, including any violation of Audiense’s acceptable use policies. You shall also be responsible and primarily liable for any act or omission by Authorized Users or any other third parties, and any act or omission by Authorized Users or such third parties that would constitute a breach of the Agreement if committed by You shall constitute a breach of the Agreement by You.
  2. DATA

10.1      Customer Data. As between You and Audiense, You are and will remain the sole and exclusive owner of all right, title, and interest in and to Your Customer Data; however, You acknowledge and agree that Customer Data does not include any Resultant Data, Documentation Results or any Intellectual Property Rights relating thereto. You grant to Audiense a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, worldwide, sublicensable right and license to use, reference, copy, modify, create derivative works from, display, publish, and distribute the Customer Data, including for the purposes of: (i) inclusion in the Results and Resultant Data; (ii) inclusion in other Audiense products and services, whether directly or indirectly, including without limitation, Audiense products and services that are sold on a stand-alone basis and those that are integrated into third party products and services; (iii) use in or with products or services which may be sold or licensed to third parties by Audiense or its distributors; and (iv) Audiense’s business use, including without limitation, the use of such Customer Data for research, development, and analytics purposes, to improve Audiense products and services, for marketing and benchmarking purposes, and to generate, use, display and publish aggregate statistical information. Customer Data submission must meet Audiense’s minimum data requirements and must contain information on Your Accounts.

 

 

10.2      Limited Opt-Out.

If You do not wish for Your Customer Data to be used for the purposes set forth in romanettes (ii), (iii), or (iv) of the second sentence of Section 10.1, You may opt out by providing written notice to Audiense at any time during the Term. If You opt out, You acknowledge that You will not have access to any features, insights, or services that rely on  the rights described in romanettes (ii), (iii), or (iv) of the second sentence of Section 10.1, as determined in Audiense’s discretion. If You opt out after the Initial Term begins, such opt-out will apply prospectively only. Your opt-out will not affect Audiense’s right to continue using, processing, or sharing Customer Data received prior to the effective date of Your opt-out from You or a third party acting on Your behalf.  Furthermore, Your opt-out will not affect Audiense’s right to use Customer Data as otherwise permitted in this Agreement.

10.3      To the extent Audiense processes Customer Data on Your behalf for the purpose of providing the Services and only in relation to those aspects of the Services that require Audiense to follow Your instructions, the Parties agree that You are the data controller (or equivalent term under applicable Data Protection Laws) and Audiense is the data processor (or equivalent term) with respect to such Customer Data. In this capacity, Audiense will process Customer Data solely as necessary to provide the Services, to fulfill its obligations under the Agreement, or as otherwise permitted by applicable Data Protection Laws.

You acknowledge and agree that Customer Data may be transferred to, stored in, or accessed from locations outside the country or region where You are located, including jurisdictions that may have different data protection standards. You are responsible for ensuring that You have the legal right to transfer Customer Data to Audiense for processing in accordance with the Agreement.

You shall ensure that:

(a) You have provided all notices and obtained all rights, consents, permissions, and authorizations required under applicable Data Protection Laws to permit Audiense to process Customer Data in accordance with this Agreement;

(b) any instructions You provide to Audiense regarding the processing of Customer Data comply with applicable Data Protection Laws; and

(c) the relevant individuals or organizations have been informed of, and have provided consent to, the processing and international transfer of Customer Data where required by applicable Data Protection Laws.

Audiense will implement appropriate technical and organizational measures designed to protect Customer Data from unauthorized or unlawful processing and from accidental loss, destruction, or damage, consistent with the level of security described in the Agreement, the Data Processing Agreement, and Audiense’s documented privacy and security practices.

Nothing in this Section limits Audiense’s rights with respect to Customer Data under Section 10.1 or to process Customer Data as a data controller where Audiense independently determines the purposes and means of such processing as permitted under applicable Data Protection Laws.

10.4      Protection of Customer Data. Audiense is committed to protecting and respecting Your privacy and has implemented policies, procedures, and safeguards to comply with all federal, state, or local data protection laws applicable to Audiense. Audiense will maintain administrative, physical, and technical controls at a commercially reasonable level, including measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by Audiense personnel in accordance with the requirements set forth in Audiense’s Privacy Policy, Data Processing Agreement and Acceptable Use Policy. Before sharing Customer Data with any of Audiense’s third-party service providers, Audiense will ensure that the third-party maintains, at a minimum, reasonable data practices for maintaining the security of Customer Data and preventing unauthorized access. Audiense will only use and disclose Customer Data as provided for in the Agreement and as required or permitted to do so by law. Audiense shall not name You as the source of any Customer Data to any third party unless required to do so by legal process or given permission by You to do so.

10.5      Cookie Notice and Configuration Requirements. You agree to provide any notice and obtain any permission or consent for collection, use, sharing, or other processing of Customer Data required under relevant Data Protection Laws, including but not limited to implementing the requirements set forth in the Cookie Banner, Notice, and Configuration Requirements.  Audiense reserves the right to modify or update these requirements at any time, and You agree to comply with any and all requirements.  Where Audiense makes a change to these requirements, it will notify You and You agree to implement the requirements within 5 business days after receiving such notice.

10.6      The license in this Section 10 shall survive the termination of these Terms and Conditions. This license shall supersede and control over any confidentiality, non-disclosure, non-use, return, and/or destruction agreements or understandings (including those in this Agreement, if any) between the parties except for Business Associate Agreements (“BAAs”) governing Audiense’s obligations with respect to Protected Health Information (defined below), inasmuch as Audiense shall be permitted to retain any Customer Data provided to Audiense and use such Customer Data solely to the extent permitted by the license granted to Audiense above. If You provide Customer Data to Audiense after termination of the Terms and Conditions, this section shall apply to that Customer Data notwithstanding termination of the Terms and Conditions. Audiense shall own all rights, title, and interest in the Results and to any other materials, products, or services created by or on behalf of Audiense in any form containing or derived from the Customer Data (or any part thereof), provided that the foregoing does not name You as the source of the Customer Data, and You shall have no ownership, authorship, or moral rights therein.

  1. CUSTOMER’S REPRESENTATIONS AND WARRANTIES.You represent, warrant, and covenant to Audiense that (i) the individual who signed the SOW is an authorized representative  who has authority to sign on behalf of, and bind, You, (ii) that all of the Customer Data submitted to Audiense shall be true, accurate, and complete to the best of Your knowledge and belief as of the dates of submission, (iii)  to the extent the Customer Data contains any personal information about consumers, You collected any Customer Data directly from consumers in the United States and have provided to them all notices required by applicable laws concerning the collection or use of personal information (including the California Consumer Privacy Act and any other applicable law concerning the privacy or protection of personal data), (iv) You own or otherwise have and will continue to have the necessary rights and consents in and relating to the Customer Data and any Feedback so that Audiense’s use of such Customer Data or Feedback in accordance with the Agreement does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any third-party or violate any applicable Law, and (v) You will abide  by all federal, state and local data privacy and protection laws, including by refraining from using the product for purposes set forth in section (8)(k)-(l) above; (vi) when applicable, You are in compliance with and will abide by AMA Physician Professional Data Policies, (vii) You and Your Authorized Users will comply with all of  Terms and Conditions and Audiense’s Acceptable Use Policy, and (viii) You will not provide Audiense with (a) personal data that constitutes “sensitive personal data” or “sensitive personal information,” including information about racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sex life, government issued identification numbers, credit card details, or precise geolocation information; (b) PCl-related sensitive data (including but not limited to magnetic strips and chip data, CAV2/CVC2/CVV2/CID4 numbers, and personal identification numbers (PINs)); (c) Protected Health Information (“PHI”) (as the term is defined in the Health Insurance Portability and Accountability Act of 1996 (as amended, superseded or replaced) or Consumer Health Data (as defined in the Washington My Health My Data Act), or (d) criminal records.
  2. AUDIENSE’S DISCLAIMER OF WARRANTIES. You agree that from time to time, the Product, Services, Third-Party Materials, Documentation, and/or the Results may be inaccessible or inoperable for various reasons, including equipment malfunctions, upgrades, or modifications, or causes beyond Audiense’s control like interruption or failure of internet, telecommunication or digital transmission links, hostile network attacks, or network congestion. There will be occasions when the Product (in whole or part), Third-Party Materials, or the Results will be interrupted or unavailable due to maintenance, updates, and emergency repairs or due to failure of telecommunications links and equipment or due to circumstances that are outside of Audiense’s control. Audiense will not be liable in any event to You or any other party for any suspension, modification, discontinuance, loss of, or lack of availability of the Product, the Results, Third-Party Materials, or modules thereof, regardless of the cause of such suspension, modification, discontinuance, loss of, or lack of availability and that You are responsible for mitigating the impact of scheduled maintenance activities on Your production processes. You acknowledge that access to and use of the Products or Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability for any reason, including as a result of power outages, system failures, or other interruptions, and Audiense will have no liability whatsoever for any loss, harm or damage arising out of or in connection with any such downtime. You agree that this Agreement shall not prevent Audiense from entering into similar agreements with third parties, or from independently developing, using, selling, or licensing documentation, products and/or services which are similar to those provided under this agreement. You agree that Audiense shall be entitled to take such technical steps as may be necessary to ensure that Your use of the Product or Services does not exceed any applicable data limit and that any use of the Services by You in excess of any applicable data limit shall be subject to the Parties agreeing on additional terms which may include the payment of additional Fees in return for an increase in the applicable data limit .You agree that in no event will Audiense be liable to You for any damages due to lost or damaged Customer Data, regardless of the cause. You agree that, in Audiense’s sole discretion, Audiense may discontinue modules, features or functions of the Product without breaching the Agreement. You agree that cancellation of Your Account is Your sole and exclusive remedy if You are dissatisfied with the Product, Services, Documentation or Results and for any claim that functionality, modules or features discontinued or modified by Audiense materially impact Your use of the Product, Services, Third-Party Materials, Documentation or Results. NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THE AGREEMENT TO THE CONTRARY, THE PRODUCT, SERVICES, DOCUMENTATION. RESULTS, AND ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS.” AUDIENSE SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, AUDIENSE MAKES NO WARRANTY OR REPRESENTATIONS OF ANY KIND THAT THE PRODUCT, SERVICES, DOCUMENTATION, RESULTS, OR THIRD-PARTY MATERIALS WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITIES’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, ACCESSIBLE, AVAILABLE, COMPLETE, TIMELY, FREE OF HARMFUL CODE, OR ERROR FREE.AUDIENSE DOES NOT MAKE ANY ASSURANCES, REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVES FROM YOUR USE OF THE PRODUCT, THIRD-PARTY MATERIALS, OR THE RESULTS.
  3. INDEMNIFICATION

13.1      Customer’s Indemnification. You agree to defend (at Audiense’s election), indemnify, and hold harmless Audiense and its affiliates and their respective directors, officers, agents, contractors, licensors, service providers, representatives, suppliers, employees, successors, and assigns (each of the foregoing including Audiense, a (“Audiense Indemnitee“) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, liabilities, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (all of the foregoing, “Losses”), incurred by or alleged or assessed against any Audiense Indemnitee resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise (“Action”) arising out of or related to (a) Your or any Authorized User’s breach of any of these Terms and Conditions, (b) Customer Data or Feedback, including but not limited to uploading data in violation of Your representations and warranties under Section 11 of these Terms and Conditions, (c) Your or any Authorized User’s acts and omissions, (d) a violation of or non-compliance with any part of all applicable federal, state or local privacy or data protection laws (e) claims asserted by any third party arising out of or relating to Your use or misuse of the Products or Services or relating to any claims of a Product’s or Services’ non-compliance with any applicable state, federal, or local laws, rules, or regulations or (f) Your or any other person’s conclusions, decisions, acts or omissions based on or related to use of the Results. Audiense reserves the right to assume the exclusive defense and control of any Action subject to indemnification by You hereunder, and You shall fully cooperate with such defense at its own cost and expense. If Audiense chooses to have You defend such an Action, You shall choose legal counsel reasonably acceptable to Audiense. You agree to promptly notify Audiense in writing of any third-party claims, cooperate with Audiense in defending such claims, and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance).

  1. 2 Audiense shall indemnify, defend, and hold harmless You and Your officers, directors, employees, agents, and affiliates (collectively, the “Customer Indemnitees”) from and against any and all claims, actions, suits, proceedings, damages, liabilities, losses, settlements, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) arising out of or relating to (a) any Claim that the Product or Service, as provided by Audiense, infringes or misappropriates any valid third-party intellectual property right, including but not limited to patents, copyrights, trademarks, or trade secrets, (b) any claim arising from a breach of Audiense’s security obligations as outlined in this Agreement, resulting in unauthorized access, acquisition, use, disclosure, or destruction of Customer Data or (c) any claim arising out of Audiense’s violation of applicable laws, regulations, or governmental orders in connection with its performance under this Agreement. Audiense’s obligation to indemnify under this Section shall not apply to the extent that such Claims arise from: (i) Your use of the Products or Services in violation of this Agreement, (ii) modifications to the Products or Services made by You or any third party not authorized by Audiense, (iii) the combination of the Products or Services with any other services, products, or systems not supplied by Audiense where the alleged infringement would not have occurred but for such combination, or (iv) any claim arising from or relating to Customer’s use of the Products or Services for first-party data enrichment, including Customer’s failure to determine whether such use is permitted under Customer’s own policies, agreements, or applicable laws. Audiense shall promptly notify You of any Claim subject to indemnification, provide You with reasonable assistance in defending such Claim at Your expense, and allow You to control the defense and settlement of such Claim. Audiense shall not settle any Claim without the prior written consent of You, which shall not be unreasonably withheld or delayed. The foregoing states Your sole and exclusive rights and remedies, and Audiense entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
  2. LIMITATIONS OF LIABILITY.

14.1     EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL AUDIENSE OR ANY OTHER AUDIENSE INDEMNITEE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, LOSS OF USE, OR INTERRUPTION OR DELAY OF THE PRODUCT, THE RESULTS, OR THIRD-PARTY MATERIALS; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, TREBLED, ENHANCED, OR PUNITIVE DAMAGES OR ANY DAMAGES WHATSOEVER, REGARDLESS OF WHETHER AUDIENSE OR ANY OTHER AUDIENSE INDEMNITEE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

14.2      CAP ON MONETARY LIABILITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE, AGGREGATE LIABILITY OF AUDIENSE OR ANY OTHER AUDIENSE INDEMNITEE ARISING OUT OF OR RELATED TO THE PRODUCT, THE RESULTS, THIRD-PARTY MATERIALS, OR THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), GROSS NEGLIGENCE, FRAUD, MISREPRESENTATION, WILLFUL AND/OR WANTON MISCONDUCT, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE APPLICABLE FEE PAID TO AUDIENSE BY YOU FOR THE TERM DURING WHICH THE EVENT GIVING RISE TO DAMAGES OCCURRED. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14.3       YOU AGREE THAT THESE LIMITATIONS OF LIABILITY REPRESENT A REASONABLE ALLOCATION OF RISK AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND AUDIENSE. IF ANY PORTION OF THIS SECTION 14 IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

  1. TERM; CANCELLATION AND TERMINATION.

15.1 Term. The term of this Agreement shall begin on the Start Date  and shall continue for the Initial term, and shall expire at the end of such Initial Term, unless earlier terminated pursuant to the terms hereof. If designated as such on the SOW, this Agreement shall continue thereafter for successive periods of thirty (30) day commencing on the last day of the Initial Term or any Renewal Period, unless notice is provided within the time frame specified in the applicable SOW prior to the last day of the Initial Term or any Renewal Term, either Party has provided the other written notice of an intent not to renew, pursuant to Section 4 above. You acknowledge that You are responsible for payment of Fees pursuant to Section 3 for the entire Renewal Term unless the Agreement is terminated in accordance with the notice provisions of this Section.

15.2      Customer Cancellation. You may not cancel the Agreement during the Initial Term, or the Renewal Term unless (a) Audiense has materially breached the Agreement and such breach has not been cured by Audiense within a reasonable time period or (b) You have obtained prior written consent from an officer of Audiense (not a sales representative) or (c) pursuant to Section 16.1 above.

15.3      Audiense’s Termination. Notwithstanding anything contained in the Agreement, Audiense reserves the right, without notice and in its sole discretion, to immediately terminate Your (including all Authorized Users’) right to access and use the Product, Service any Third-Party Materials, Documentation, or the Results for any or no reason, including any violation of the Agreement by You or Your Authorized Users. Except as set forth in the following sentence, You acknowledge and agree that Audiense shall have no liability or obligation to You in the event Audiense terminates the Agreement and You and Your Authorized Users’ access to and use of the Product or Service. If Audiense terminates Your right to access and use the Product or Service for any reason other than You or Your Authorized User’s breach of the Agreement, then Audiense shall refund to You a pro rata portion of applicable fees paid by You to Audiense. If Audiense terminates the Agreement and access to and use of the Product or Service due to breach, You will not be entitled to a refund of any amounts that You have already paid to Audiense.

15.4      Effect of Cancellation or Termination. Upon cancellation or termination under Section 15.2 or Section 15.3 or upon expiration of the term set forth in the SOW, the Agreement shall automatically terminate (except as set forth below) and all rights to You under the Agreement will immediately terminate and You and Your Authorized Users shall immediately cease all access to and use of the Product, Services Documentation and  Results. You may keep all Documentation and Results that You have received from Audiense prior to termination. Following termination or expiration, Audiense has no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. Unless otherwise required by law, Audiense may delete and destroy all Customer Data in its possession or control. Such deletion will be conducted using commercially reasonable and industry standard methods designed to ensure that the Customer Data is rendered unrecoverable. If You request written confirmation of data destruction, Audiense will provide documentation reasonably evidencing that the Customer Data has been deleted from its live systems. Any such request must be submitted in writing within thirty days following the effective date of termination. After the thirty day period, Audiense shall have no obligation to retain any Customer Data and all such data may be permanently and irretrievably deleted without further notice. You acknowledge that no Customer Data will be returned or transferred back to You unless separately agreed to in writing by both parties, and any costs associated with such transfer, if applicable, shall be Your responsibility. Deleted Customer Data may continue to exist within Audiense backup systems until those backups expire. Backup data is stored in an immutable format and cannot be edited, modified, or selectively purged. If Customer Data is required to be deleted from the live production environment, the corresponding backup copies will begin their normal expiration cycle and will be fully removed within approximately four months. Audiense shall not be required to accelerate backup deletion or modify its backup retention processes.

  1. CONFIDENTIALITY. Each Party (“Disclosing Party”) may disclose “Confidential Information” to the other Party (“Receiving Party”) in connection with the Agreement, which is any information that is proprietary or confidential which reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the SOW. Confidential Information of Yours includes Customer Data; provided, that use or disclosure of Customer Data in accordance with this Agreement shall not be deemed a breach of this Section. Without limiting the foregoing, if something is labeled Confidential, that is a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third-party without breach of any obligation owed to the Disclosing Party; (d) was independently developed by the Receiving Party as demonstrated by written evidence; or (e) was or is used or disclosed with the Disclosing Party’s authorization, including the use of Customer Data in accordance with this Agreement. The Receiving Party will take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information and limit access to those employees, affiliates, and contractors who need to know such information in connection with the Agreement. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party for any purpose other than as authorized by this Agreement and will take commercially reasonable steps to prohibit its employees, affiliates, and contractors from making unauthorized use or disclosure of any Confidential Information. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure.
  2. MARKETING. You understand and agree that Audiense may, but is not required to, collect, review, and use Your trademarks, trade names, service marks, slogans, logos, other source identifiers, testimonials, and marketing and promotional content (collectively, “Customer Marketing Content”) provided or transmitted by You or Your Authorized Users to the Products or Services, and may disclose in its marketing materials, including advertising, case studies, and brochures in printed, electronic, and online formats (collectively, “Marketing”), that Audiense is an approved service provider of You with respect to the Product, Services, Documentation, and Results described in an applicable SOW or Statement of Work. Such use shall be solely in connection with the advertising, promotion, and sale of Audiense’s products and services, including on Audiense’s website, or to improve, enhance, develop, diagnose, or correct the Services. For purposes of the foregoing, You hereby grant to Audiense a limited, non-exclusive, and perpetual license to use Your name, logos, trademarks, and testimonials in such Marketing, together with a description of the Product and Services provided by Audiense pursuant to this Agreement. Neither party shall disclose any usage data or any Results relating to any Product, Service, or any third party without the prior written consent of the other party. You are required to notify Audiense if Customer cannot comply with this Section.
  3. FEEDBACK. You have no obligation to provide Audiense with feedback, ideas, suggestions, or proposals (“Feedback”). You hereby grant Audiense a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify, create derivative works from, publicly perform, and otherwise exploit any Feedback You submit to Audiense without notice or compensation to You. Any inventions, creative works, or tangible embodiments of Feedback reduced to practice, conceived, developed, or authored by or on behalf of Audiense shall be owned by Audiense, including any and all Intellectual Property Rights, and You hereby irrevocably assign, and shall cause any employees, offices or other personnel to assign, to Audiense and its successors and assigns any and all right, title and interest they may have in and to any such inventions, creative works, or tangible embodiments of Feedback and all Intellectual Property Rights thereto.
  4. MISCELLANEOUS

19.1      Relationship of the Parties and Third Party Rights. The relationship between the Parties is that of independent contractors and not employees. Nothing in these Terms and Conditions is intended to or shall operate to create a partnership between the Parties, or authorize either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). These Terms and Conditions do not confer any rights on any person or party.

19.2      Notices and Software Communications. All notices to You from Audiense may be sent to You via the email address currently associated with Your Account or through the Product or Service and shall be deemed to have been duly given the same day sent by Audiense. Any notices or communications to Audiense must be in writing and sent to [email protected].

19.3      Force Majeure. Without limiting any other provision in these Terms and Conditions, Audiense is not responsible or liable to You for delay or failure to perform its obligations hereunder in the event that any of Audiense’s operations or activities are affected by any cause or event beyond the sole and reasonable control of Audiense, including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.

19.4      Waiver. A waiver of any right under these Terms and Conditions is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under these Terms and Conditions are cumulative and do not exclude rights provided by law.

19.5      Severance. If any provision (or part of a provision) of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

19.6      Interpretation. For purposes of the Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”. The Parties intend the Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The above headings are for reference only and do not affect the interpretation of the Terms and Conditions.

19.7      Choice of  Law and Dispute Resolution. The governing law and forum for resolution of any dispute arising under or in connection with this Agreement (including non-contractual disputes or claims) shall be determined based on Your principal place of business, as follows:

  • United States, Non-EU, and Non-UK Customers:
    If Your principal place of business is located in the United States, or in any jurisdiction other than the United Kingdom or a member state of the European Union, this Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, without giving effect to any conflict of laws principles that would require or permit the application of the laws of another jurisdiction. Any legal action, suit, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Tarrant County, Texas, and each party irrevocably submits to the personal jurisdiction and venue of such courts.

 

  • United Kingdom or European Union Customers:
    If Your principal place of business is located in the United Kingdom or in a member state of the European Union, this Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to its conflict of law rules. Any dispute or claim arising out of or in connection with this Agreement shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The seat of arbitration shall be London, England, the number of arbitrators shall be one, and the language of arbitration shall be English.

In all cases, the applicable governing law shall apply to all matters arising out of or relating to this Agreement, whether in contract, tort, or otherwise.

19.8      Anti-Bribery and Anti-Corruption. Audiense agrees not to offer or pay any bribes, including improper gifts or entertainment, to gain a business advantage during the term of these Terms and Conditions. This includes refraining from bribing any person, especially government officials, in connection with the Services or Products provided. Audiense will maintain policies and provide training to ensure compliance with Audiense policies. We confirm that no bribes or improper gifts have been given to secure Your business. If Audiense violates this provision, You may terminate the SOW immediately without any obligation to pay Fees.

19.9      Export. You agree not to export, re-export, or transfer, directly or indirectly, any software, technology or information forming a part of the Product or Services or the Documentation in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.

19.10    Entire Agreement. These Terms and Conditions and any Statements of Work,  Data Processing Agreement, Privacy Policy and Acceptable Use Policy constitute the sole and entire agreement between You and Audiense with respect to the Products, Services, Documentation, Results, Third-Party Materials and the subject matter of these Terms and Conditions and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between these Terms and Conditions and any SOW, these Terms and Conditions will govern and control unless, and only to the extent that, the parties have expressly agreed in writing in the applicable SOW that a specific provision of these Terms and Conditions is superseded.

19.11    Assignment. Audiense may freely assign, transfer, or delegate its rights and obligations under the Agreement, in whole or in part. You shall not assign or otherwise transfer any of Your rights or delegate or otherwise transfer any of Your obligations or performance under these Terms and Conditions.

19.12    Survival of Terms. Subject to the limitations and other provisions of this Agreement the rights and obligations of the Parties set forth in Sections 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, and 16 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

 

Previous Versions:

October 10, 2024

February 15, 2023

July 25, 2017