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