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PLEASE READ CAREFULLY BEFORE USING THE ‘AUDIENSE’ SOFTWARE AS A SOURCE PRODUCT:
THIS AGREEMENT (AGREEMENT) IS A LEGAL AGREEMENT BETWEEN YOU (CUSTOMER) AND AUDIENSE LTD, Kemp House, 152 - 160 City Road, London EC1V 2NX (SUPPLIER) FOR THE USE OF THE ‘AUDIENSE’ SOFTWARE AS A SERVICE PRODUCT (AUDIENSE). BY CLICKING ON THE “ACCEPT” BUTTON BELOW YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE ARE UNWILLING TO ALLOW THE USE OF AUDIENSE BY YOU AND YOU MUST DISCONTINUE THE USE NOW.
The definitions and rules of interpretation in this clause apply in this agreement.
1.1 “Agreement” means the terms and conditions, the Service Level Agreement, and any Order Form.
1.2 “Order Form” means an ordering document or online order specifying the Services that we agree to provide to you and any Third Party Services (as applicable).
1.3 “Business Day”: any day which is not a Saturday, Sunday or public holiday in the UK.
1.4 “Change of Control”: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
1.5 “Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.1.
1.6 “Customer Data”: the data inputted by the Customer or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
1.7 “Exported Data” means any Audiense Data that is exported or downloaded or recorded in any way from our systems.
1.8 “Documentation”: the document made available to the Customer by the Supplier online via audiense.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
1.9 “Effective Date”: the date of this agreement.
1.10 “Initial Subscription Term”: period designated as such on the Order Form or, in the absence of any, the original and subsequent invoices unless terminated earlier in accordance with this Agreement.
1.11 “Subscription Term” Initial Subscription Term together with any subsequent Renewal Periods.
1.12 “Normal Business Hours”: 9.00 am to 6.00 pm local UK time, each Business Day.
1.13 “Renewal Period”: the period described in clause 14.1.
1.14 “Services”: either: (a) the paid for subscription services provided by the Supplier to the Customer under the name “Audiense Paid Version” via audiense.com or any other website notified to the Customer by the Supplier from time to time; (b) the free services provided by the Supplier to the Customer under the name “Audiense Free Version” via audiense.com; as the context requires, in each case as further described in the relevant Documentation; or (c) Professional Services understood as training, implementations or other Professional Services. Most Services involve providing technology that empowers our customers to enrich 3rd party data in real time and act with more certainty in a way that is easy-to-access and use. In turn, this allows our customers to learn more about their brand, their customers, their competitors, and other information available on the social web that is relevant to our Customers.
1.15 “You”: Customer, User or Free User
1.16 “User”or “End User”: any person that you (or your agency clients) have authorised to use the Service.
1.17 “Customer”: any person that has agreed to pay a Subscription or other kind of Fee to the Supplier for the use of Audiense Paid Version Services or Professional Services.
1.18 “Free User”: any person that has signed up to Audiense Free Version Services.
1.19 “Software”: the online software applications provided by the Supplier as part of the Audiense Paid and Free Version Services.
1.20 “Subscription Fees”: the subscription fees payable by the Customer to the Supplier for the Audiense Paid Version Services, as amended by the Supplier from time to time. For the avoidance of doubt, no fees are payable by the Customer for the Audiense Free Version Services
1.21 “Subscription Term”: has the meaning given in clause 14.1.
1.22 “Virus”: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.23 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.24 “Person” includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.25 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.26 Words in the singular shall include the plural and vice versa.
1.27 A reference to one gender shall include a reference to the other genders.
1.28 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.29 A reference to writing or written includes faxes and/or e-mail.
1.30 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2.1 The Supplier shall provide the Services and make available the relevant Documentation to the Customer on and subject to the terms of this agreement.
2.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
2.2.1 unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
3.1 Audiense Paid Version: Subject to the Customer paying the Subscription Fees in accordance with clause 8.1, the restrictions set out in this clause 3 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Customer and its employees to use the Audiense Paid Version Services and the relevant Documentation during the Subscription Term, solely for the Customer’s internal business operations.
3.2 Audiense Free Version: Subject to the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Free User and its employees to use the Audiense Free Version Services and the relevant Documentation for so long as the Audiense Free Version are offered by the Supplier, solely for the Customer’s internal business operations.
3.3 The Customer undertakes that the Customer shall keep a secure password for the use of the Services, that such password shall be changed no less frequently than monthly and that the Customer shall keep his password confidential;
3.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.4.2 facilitates illegal activity;
3.4.3 depicts sexually explicit images;
3.4.4 promotes unlawful violence;
3.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
3.4.6 causes damage or injury to any person or property;
3.4.7 and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
3.5 The Customer shall not:
3.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
3.5.2 and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
3.5.3 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
3.5.4 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
3.5.5 use the Services and/or Documentation to provide services to third parties; or
3.5.6 subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or
3.5.7 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.7 The rights provided under this clause 2 are granted to the Customer and its employees only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.8 You will not: (a) knowingly display, distribute, or otherwise make available Audiense Data to any person or entity that you reasonably believe will use Audiense Data in any manner that would have the potential to be inconsistent with that individual’s reasonable expectations of privacy; (b) conduct any research or analysis that isolates a small group of individuals or any single individual for unlawful or discriminatory purposes; (c) use Audiense Data to target, segment, or profile any individual based on health, negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law.
3.9 You: (a) are responsible for your use of the Services and for your Users’ compliance with the online user guides, help and training materials, and your Users’ compliance with this Agreement (as if they were you); (b) will ensure that your use of Exported Data complies with Applicable Law; (c) will comply with the Twitter Terms of Service (including Twitter Advertising Terms, and developer terms and policies), usually at http://twitter.com/tos, https://legal.twitter.com/ads-terms.html and https://dev.twitter.com/overview/terms/agreement; the Instagram Terms of Service and Platform policy, usually at https://help.instagram.com/581066165581870 and https://instagram.com/about/legal/terms/api/ and the Facebook terms of service and platform policy https://www.facebook.com/legal/terms/update and https://developers.facebook.com/policy/ (d) will comply with the marketing materials we may provide to you related to your use and description of both our Services and our intellectual property rights.
3.10 Removal of Audiense Data: A licensor or Applicable Law may require us to remove Audiense Data from our Services. In such cases, we will notify you of the impacted data and you will promptly remove the same Exported Data from your systems, whether during or after the Term.
3.11 The Customer shall:
3.11.1 provide the Supplier with:
220.127.116.11 all necessary co-operation in relation to this agreement; and
18.104.22.168 all necessary access to such information as may be required by the Supplier;
in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
3.11.3 comply with all applicable laws and regulations with respect to its activities under this agreement;
3.11.4 carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
3.11.5 ensure that the use of the Services and the Documentation is in accordance with the terms and conditions of this agreement and shall be responsible for any breach of this agreement by such persons as authorised by the Customer to use the Services and the Documentation;
3.11.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
3.11.7 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
3.11.8 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
4.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
and security of the Customer Data available at audiense.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
4.3 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
4.3.1 the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and the Supplier’s other obligations under this agreement;
4.3.2 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
4.3.3 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
4.3.4 the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
4.3.5 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5.2 FullContact End User Agreement. If the FullContact Data is made available by Audiense to external End Users through a Client Application, the Client Application shall be licensed or made available to such End Users in this Agreement between Audiense and End User that includes the following terms (the “FullContact End User Agreement”):
5.2.1 The End User agrees not to use any FullContact Data (whether alone or in combination with any other data) in any manner that violates the FullContact Application Policy, or any of the restrictions set forth on the applicable Order Form;
5.2.2 The End User agrees to provide commercially reasonable physical and logical security controls to prevent security breaches or unauthorized access to FullContact Data that End User is authorized to download from the Client Application;
5.2.3 Except as otherwise set forth in an Order Form, all rights to FullContact Data are limited to use within the Audiense Application;
5.2.4 All rights to FullContact Data automatically terminate upon termination of the applicable Subscription Term or upon the earlier termination of the applicable Order Form or this Agreement;
5.2.5 The End User agrees to delete all FullContact Data upon termination of the license, other than any Data Output that has been derived from FullContact Data in compliance with the terms of this Agreement prior to the termination or expiration date; and
5.2.6 If Submitted Information is provided to FullContact by Audiense, the End User grants to Audiense all rights (including consents and licenses) to any Submitted Information that the End User provides to Audiense that are necessary for Audiense to grant FullContact the license to use its Submitted Information.
5.3 Fifty.io End User Agreement. If the End User requests the integration with Fifty.io via the Client Application you agree that automatically Fifty.io would become a sub-processor to Audiense.
6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Supplier:
6.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
6.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
6.2.3 is not responsible for any delays, loss of data, or any other loss caused by either parties inability to connect to Twitter including but not limited to the permanent or temporary suspension or closure of Twitter, either parties restricted or suspended use of Twitter, or a Twitter system or site failure.
6.3 This agreement shall not prevent the Supplier 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.
6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6.5 The Supplier reserves the right to make changes, updates or enhancements to the Services at any time without notice including adding or removing functions and/or suspending or terminating the Services.
6.6 The Supplier shall be entitled to take such technical steps as may be necessary to ensure that the Customer’s use of the Services does not exceed any applicable Data Limit. Any use of the Services by the Customer in excess of any applicable Data Limit shall be subject to the Supplier and the Customer agreeing on additional terms which may include the payment of fees in return for an increase in the applicable Data Limit.
7.1 The Customer shall pay the Subscription Fees to the Supplier.
7.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card or direct debit details and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides its credit card or direct debit details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
7.2.1 on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
7.2.2 subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period.
7.3 If the Supplier has not received payment within 14 days after the due date, and without
prejudice to any other rights and remedies of the Supplier:
7.3.1 the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
7.3.2 interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this agreement:
7.4.1 shall be payable in the currency agreed between the parties and set out in the Supplier’s invoice;
7.4.2 are, subject to clause 13.4.2, non-cancellable and non-refundable;
7.4.3 are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
8.1 The Supplier may vary the terms and conditions of this agreement from time to time at its sole discretion. Any such revisions shall come into effect on the date 7 days from the date on which the varied terms and conditions are posted on the Audiense website at audiense.com/tos
8.2 By continuing to use the Service after any such revision to the terms and conditions of this agreement, the Customer shall be deemed to have accepted such revisions.
8.3 If the Customer is not prepared to accept such revised terms and conditions, the Customer’s sole remedy shall be to terminate this agreement by notice to the Supplier whereupon the Supplier will refund to the Customer a pro rated sum equal to the unexpired portion of any Subscription Fees paid by the Customer prior to such termination.
8.4 It is a condition of this agreement that the Customer regularly visits the Audiense website at
audiense.com/tos in order to review any revisions to the terms and conditions of this agreement.
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
9.3 The Supplier does not warrant that any Customer Data will not be subject to damage, unavailability, corruption or loss. To the maximum extent permitted by law, the Supplier excludes all liability for any loss arising from damage, unavailability, corruption or loss of Customer Data.
9.4. Deliverables: Upon your payment of the fees for any deliverable from Professional Services (specified as such on an Order Form), you will retain all ownership rights to copyrightable works, work product, or other materials we created for you as part of those Professional Services; provided that if the deliverable contains Audiense Data, then the Audiense Data in the deliverable is granted to you under a worldwide, non-exclusive, non-transferable, royalty-free licence to use the deliverable in accordance with this Agreement.
9.5. Exported Data Licence: We grant to you a worldwide, non-exclusive, non-transferable, royalty-free, licence to use the Exported Data in accordance with this Agreement.
9.6. Licence to use your feedback: You grant to us, and you undertake to procure that your Users grant to us, a worldwide, perpetual, irrevocable, royalty-free licence to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or your Users arising out of your use of the Services.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 was in the other party’s lawful possession before the disclosure;
10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
10.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
10.7 This clause 10 shall survive termination of this agreement, however arising.
10.8 Customer consents to the use by Audiense of customer’s name and trade mark, in Audiense’s marketing materials and/or Audiense’s website, together with a description of the Product and services provided by Audiense pursuant to this Agreement. Save the aforesaid, neither party shall disclose any usage data or performance results relating to the Audiense product to any third parties without the prior written consent of the other party.
11.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
11.1.1 the Customer is given prompt notice of any such claim;
11.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
11.1.3 the Customer is given sole authority to defend or settle the claim.
11.2 The Supplier shall, subject to clause 12.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
11.2.1 the Supplier is given prompt notice of any such claim;
11.2.2 the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
11.2.3 the Supplier is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the
Customer to the extent that the alleged infringement is based on:
11.4.1 a modification of the Services or Documentation by anyone other than the Supplier; or
11.4.2 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
11.4.3 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.5 THE FOREGOING STATES THE CUSTOMER’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES, AND THE SUPPLIER’S (INCLUDING THE SUPPLIER’S EMPLOYEES’, AGENTS’ AND SUB-CONTRACTORS’) ENTIRE OBLIGATIONS AND LIABILITY, FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE MARK, DATABASE RIGHT OR RIGHT OF CONFIDENTIALITY.
12.1 SUBJECT TO THE PROVISIONS OF CLAUSE 12.5, THIS CLAUSE 13 SETS OUT THE ENTIRE FINANCIAL LIABILITY OF THE SUPPLIER (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS AND SUB-CONTRACTORS) TO THE CUSTOMER IN RESPECT OF:
12.1.1 ANY BREACH OF THIS AGREEMENT;
12.1.2 ANY USE MADE BY THE CUSTOMER OF THE SERVICES AND DOCUMENTATION OR ANY PART OF THEM; AND
12.1.3 ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
12.2 Except as expressly and specifically provided in this agreement:
12.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
12.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
12.2.3 the Services and the Documentation are provided to the Customer on an “as is” basis.
12.3 Nothing in this agreement excludes the liability of the Supplier:
12.3.1 for death or personal injury caused by the Supplier’s negligence; or
12.3.2 for fraud or fraudulent misrepresentation.
12.4 SUBJECT TO CLAUSE 13.2 AND CLAUSE 13.3:
12.4.1 THE SUPPLIER SHALL NOT BE LIABLE WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THIS AGREEMENT; AND
12.4.2 THE SUPPLIER’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO 10% OF THE TOTAL SUBSCRIPTION FEES (IF ANY) PAID DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
13.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date.
13.2 Where the Customer has paid the Subscription Fee for the Audiense Paid Version Services, this agreement shall continue for the Initial Subscription Term or the period stated in the Order Form and, thereafter, this agreement shall be automatically renewed for successive periods.
13.2.1 Unless otherwise stated in the Order Form, either party notifies the other party of termination, in writing, at least 1 day before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
13.2.2 otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.3 Where the Customer has signed up for the Audiense Free Version Services, this agreement shall continue for so long as the Audiense Free Version Services are offered by the Supplier.
13.5 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
13.5.1 the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
13.5.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
13.5.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
13.5.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
13.5.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
13.5.6 the other party ceases, or threatens to cease, to trade; or
13.5.7 there is a change of control of the other party within the meaning of section 840 of the Income and Corporation Taxes Act 1988; or
13.5.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.6 On termination of this agreement for any reason:
13.6.1 all licences granted under this agreement shall immediately terminate;
13.6.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
13.6.3 THE SUPPLIER MAY DESTROY OR OTHERWISE DISPOSE OF ANY OF THE CUSTOMER DATA IN ITS POSSESSION UNLESS THE SUPPLIER RECEIVES, NO LATER THAN TEN DAYS AFTER THE EFFECTIVE DATE OF THE TERMINATION OF THIS AGREEMENT, A WRITTEN REQUEST FOR THE DELIVERY TO THE CUSTOMER OF THE THEN MOST RECENT BACK-UP OF THE CUSTOMER DATA TOGETHER WITH PAYMENT OF THE ACCESS FEE SPECIFIED ON THE AUDIENSE WEBSITE. THE SUPPLIER SHALL USE REASONABLE COMMERCIAL ENDEAVOURS TO DELIVER THE BACK-UP TO THE CUSTOMER WITHIN 30 DAYS OF ITS RECEIPT OF SUCH A WRITTEN REQUEST, PROVIDED THAT THE CUSTOMER HAS, AT THAT TIME, PAID ALL FEES AND CHARGES OUTSTANDING AT AND RESULTING FROM TERMINATION (WHETHER OR NOT DUE AT THE DATE OF TERMINATION). THE CUSTOMER SHALL PAY ALL REASONABLE EXPENSES INCURRED BY THE SUPPLIER IN RETURNING OR DISPOSING OF CUSTOMER DATA; and
13.6.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13.7 During the period of 25 days commencing on the date of termination of this agreement the Supplier will make the Customer Data available to the Customer upon request subject to payment of an access fee. If no such request is received from the Customer within 25 days commencing on the date of termination of this agreement and/or the access fee is not paid, the Supplier shall have no obligation to maintain such Customer Data and it may become permanently irretrievable.
14.1 The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
15.1 A waiver of any right under this agreement 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.
15.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 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.
17.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
18.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
19.1 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise 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).
THIRD PARTY RIGHTS
20.1 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this agreement.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
22.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
22.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Controller Affiliate” means any of Customer’s Affiliate(s) (a) (i) that are subject to applicable Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom, and (ii) permitted to use the Services pursuant to the Agreement between Customer and Audiense, but have not signed their own Order Form and are not a “Customer” as defined under the Agreement, (b) if and to the extent Audiense processes Personal Data for which such Affiliate(s) qualify as the Controller.
“Data Protection Laws” means all laws and regulations, including laws and binding regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, applicable to the Processing of Personal Data under the Agreement.
“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“Personal Data” means any information that relates to an identified or identifiable natural person, to the extent that such information is protected as personal data under applicable Data Protection Laws and is submitted as Customer Data.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Security Practices Datasheet” means Audiense’s Security Practices Datasheet, as updated from time to time, and currently accessible at https://audiense.com/security-practices.
“Audiense” means the Audiense Limited entity which is a party to this DPA, as specified in the section “HOW THIS DPA APPLIES” above, being Audiense Limited, a company incorporated in the United Kingdom.
“Audiense Group” means Audiense and its Affiliates engaged in the Processing of Personal Data.
“Sub-processor” means any entity engaged by Audiense or a member of the Audiense Group to Process Personal Data in connection with the Services.
“Supervisory Authority” means an independent public authority which is established by an EU Member State pursuant to the GDPR.
23.2 DATA PROCESSING
23.2.1 Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Customer may be the Controller (when Personal Data is imported by Customer to Audiense Platform) or the Sub-processor (when Audiense share with him Personal Data from a Third Party data Controller), Audiense is the Processor (of the Customer or the Third Party depending on who is the source of Personal Data) and that Audiense or members of the Audiense Group will engage Sub-processors pursuant to the requirements set forth in Section 4 “Subprocessors” below.
23.2.2 Customer’s Processing of Personal Data. With regards to Personal Data imported by Customer to Audiense Platform, Customer shall, in its use of the Services and provision of instructions, Process Personal Data in accordance with the requirements of applicable Data Protection Law. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data.
23.2.3 Audiense’s Processing of Personal Data.
As Customer’s Processor, Audiense shall only Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Authorized Users in their use of the Services; and (iii) Processing to comply with other reasonable instructions provided by Customer (e.g., via email or support tickets) that are consistent with the terms of the Agreement (individually and collectively, the “Purpose”). Audiense acts on behalf of and on the instructions of Customer in carrying out the Purpose.
As Third Party Processor, Audiense shall only Process Personal Data for the following purposes: (i) Processing in accordance with their agreement and applicable order form(s); (ii) Processing initiated by Authorized Users in their use of the Services; and (iii) Processing to comply with other reasonable instructions provided by Third Party (e.g., via email or support tickets) that are consistent with the terms of their agreement. Audiense acts on behalf of and on the instructions of Third Party in carrying out their purposes.
23.2.4 Details of the Processing. The subject-matter of Processing of Personal Data by Audiense is the Purpose. The duration of the Processing, the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this DPA are further specified in Exhibit A (Description of Processing Activities) to this DPA.
23.3 RIGHTS OF DATA SUBJECTS
23.3.1 Data Subject Requests. Each Party shall, to the extent legally permitted, promptly notify The other Party if receives any requests from a Data Subject to exercise the following Data Subject rights: access, rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or to not be subject to an automated individual decision making (each, a “Data Subject Request”). Taking into account the nature of the Processing, Each party shall assist the Other Party by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of each Party’s obligation to respond to a Data Subject Request under applicable Data Protection Laws.
23.4.1 Appointment of Sub-processors. Customer acknowledges and agrees that (a) Audiense’s Affiliates may be retained as Sub-processors; (b) Customer may be retained as Sub-processors of Third Parties; and (c) Audiense and Audiense’s Affiliates respectively may engage third party Sub-processors in connection with the provision of the Services. As a condition to permitting a third-party Sub-processor to Process Personal Data, Audiense or an Audiense Affiliate will enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Personal Data as those in this DPA, to the extent applicable to the nature of the Services provided by such Sub-processor. Customer acknowledges that Audiense hosting servers are located in the United States.
23.4.2 List of Current Sub-processors and Notification of New Sub-processors. A current list of Sub-processors for the Services, including the identities of those Sub-processors regarding Customers data and their country of location, is accessible by emailing email@example.com. Customer undertakes to provide Audiense with the list of subprocessors in the case that they request it by any means.
23.4.3 Liability. Each Party shall be liable for the acts and omissions of its Sub-processors to the same extent Each Party would be liable if performing the Services of each Sub-processor directly under the terms of this DPA, except as otherwise set in writing.
23.5.1 Controls for the Protection of Customer Data. Each Party shall maintain appropriate technical and organizational measures for protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, the Data), confidentiality and integrity of the Other Party Data, as set forth in the Security Practices Datasheet. Audiense regularly monitors compliance with these measures. The Parties will not materially decrease the overall security of the Services during a subscription term.
23.5.2 Third-Party Certifications and Audits. Audiense has obtained the third-party certifications and audits set forth in the Security Practices Datasheet. Upon Customer’s request, and subject to the confidentiality obligations set forth in the Agreement, Audiense shall make available to Customer (or Customer’s independent, third-party auditor) information regarding the Audiense Group’s compliance with the obligations set forth in this DPA in the form of the third-party certifications and audits set forth in the Security Practices Datasheet. Customer may contact Audiense in accordance with the “Notices” Section of the Agreement to request an on-site audit of Audiense’s procedures relevant to the protection of Personal Data, but only to the extent required under applicable Data Protection Law. Customer shall reimburse Audiense for any time expended for any such on-site audit at the Audiense Group’s then-current rates, which shall be made available to Customer upon request. Before the commencement of any such on-site audit, Customer and Audiense shall mutually agree upon the scope, timing, and duration of the audit, in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended by Audiense. Customer shall promptly notify Audiense with information regarding any noncompliance discovered during the course of an audit, and Audiense shall use commercially reasonable efforts to address any confirmed non-compliance.
23.6 CUSTOMER DATA INCIDENT MANAGEMENT AND NOTIFICATION
Regarding Customers Data, Audiense maintains security incident management policies and procedures specified in the Security Practices Datasheet. Audiense shall notify Customer of any breach relating to Personal Data (within the meaning of applicable Data Protection Law) of which Audiense becomes aware and which may require a notification to be made to a Supervisory Authority or Data Subject under applicable Data Protection Law or which Audiense is required to notify to Customer under applicable Data Protection Law (a “Customer Data Incident”). Audiense shall provide commercially reasonable cooperation and assistance in identifying the cause of such Customer Data Incident and take commercially reasonable steps to remediate the cause to the extent the remediation is within Audiense’s control. The obligations herein shall not apply to incidents that are caused by Customer, Authorized Users and/or any NonAudiense Products.
Customer agree to do the same regarding Third Parties Data processed by Audiense and subprocessed by Customer.
23.7 RETURN AND DELETION OF CUSTOMER DATA
Upon termination of the Services for any Party is Processing Personal Data, Each Party shall, upon the Other Party’s request, and subject to the limitations described in the Agreement and the Security Practices Datasheet, return all Data and copies of such data to the Other Party or securely destroy them and demonstrate to the satisfaction of the Other Party that it has taken such measures, unless applicable law prevents it from returning or destroying all or part of Data. For clarification, depending on the Service plan purchased by Customer, access to export functionality may incur additional charge(s) and/or require purchase of a Service upgrade. Audiense agrees to preserve the confidentiality of any retained Customer Data and will only actively Process such Customer Data after such date in order to comply with the laws it is subject to.
23.8 CONTROLLER AFFILIATES
23.8.1 Contractual Relationship. The parties acknowledge and agree thatCustomer enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Controller Affiliates, thereby establishing a separate DPA between Audiense and each such Controller Affiliate subject to the provisions of the Agreement and this Section 8 and Section 9. Each Controller Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, a Controller Affiliate is not and does not become a party to the Agreement, and is only a party to the DPA. All access to and use of the Services by Controller Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by a Controller Affiliate shall be deemed a violation by Customer.
23.8.2 Communication. The Customer that is the contracting party to the Agreement shall remain responsible for coordinating all communication with Audiense under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Controller Affiliates.
23.8.3 Rights of Controller Affiliates. If a Controller Affiliate becomes a party to the DPA with Audiense, it shall, to the extent required under applicable Data Protection Laws, also be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
Except where applicable Data Protection Laws require the Controller Affiliate to exercise a right or seek any remedy under this DPA against Audiense directly by itself, the parties agree that (i) solely the Customer that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Controller Affiliate, and (ii) the Customer that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Controller Affiliate individually but in a combined manner for all of its Controller Affiliates together (as set forth, for example, in Section 8.3.2, below).
The parties agree that the Customer that is the contracting party to the Agreement shall, if carrying out an on-site audit of the Audiense procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on Audiense by combining, to the extent reasonable possible, several audit requests carried out on behalf of different Controller Affiliates in one single audit.
23.9 LIMITATION OF LIABILITY
Each party’s and all of its Affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA, and all DPAs between Controller Affiliates and Audiense, whether in contract, tort or under any other theory of liability, is subject to the ‘Limitation of Liability’ section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its Affiliates under the Agreement and all DPAs together. For the avoidance of doubt, Audiense’s and its Affiliates’ total liability for all claims from the Customer and all of its Controller Affiliates arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and all DPAs established under the Agreement, including by Customer and all Controller Affiliates, and, in particular, shall not be understood to apply individually and severally to Customer and/or to any Controller Affiliate that is a contractual party to any such DPA.
23.10 EUROPEAN SPECIFIC PROVISIONS
23.10.1 GDPR. With effect from 25 May 2018, Audiense will Process Personal Data in accordance with the GDPR requirements directly applicable to Audiense’s provisioning of the Services.
Data Protection Impact Assessment. Upon Customer’s request, Audiense shall provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Audiense. Audiense shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority, to the extent required under the GDPR.
23.10.2 Transfer Mechanisms. As of the effective date of this DPA, Audiense self-certifies to and complies with the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks, as administered by the US Department of Commerce. For transfers of Personal Data under this DPA from the European Union, the European Economic Area and/or their member states and Switzerland to countries which do not ensure an adequate level of data protection within the meaning of applicable Data Protection Laws of the foregoing territories, to the extent such transfers are subject to such applicable Data Protection Laws.