GoAudience
Terms of Service Agreement
Rebatus, Inc., d/b/a GoAudience, a Delaware corporation (“GoAudience”) operates an AI-powered marketing and advertising software-as-a-service platform together with related applications (the “Solution”). These terms of service agreement (the “Agreement”) constitutes the sole agreement between GoAudience and the customer (“Customer”) that executes an Order (defined below) regarding Customer’s use and access to the Solution, or, in the absence of a separate Order, that accesses or otherwise starts to use the Solution. TheAgreement will become effective the earlier of when Customer accepts this Agreement or an Order is created by authorized representatives of both Parties(the “Effective Date”). GoAudience and Customer shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement.
By accepting this Agreement, either by clicking “I Accept” upon Customer’s access to the Solution, or accessing or using the Solution, Customer agrees to be bound by this Agreement as of the date of such acceptance or the date of access to or use of the Solution. If Customer is entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), Customer is agreeing to this Agreement for that Entity and representing to GoAudience that Customer has the authority to bind such Entity to this Agreement, in which case the term “Customer” herein refers to such Entity. If Customer does not have such authority, or if Customer does not agree with this Agreement, Customer must not use or authorize any use of the Solution.
1. Definitions. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Solution.
1.2 “Authorized User” means each of Customer’s employees, agents, customers and independent contractors who are authorized to access the Services pursuant to Customer’s rights under this Agreement.
1.3 “Customer Information” means any data and information provided or submitted by Customer or its Authorized Users, including via Customer’s third-party accounts, for use in connection with the Services. For the avoidance of doubt, data obtained by GoAudience from third party sources other than Customer or Customer’s accounts are not deemed Customer Information.
1.4 “Documentation” means GoAudience’s end user documentation relating to the Services available, if any, which may be provided by GoAudience to Customer.
1.5 “Services” means the services and Documentation provided by GoAudience to Customer under this Agreement as described in an Order, including, but not limited to, provision of the Solution.
2. Provision of Services.
2.1 Access. Subject to the terms and conditions of this Agreement, GoAudience will provide the Services, as designated in an order placed by Customer and accepted by GoAudience (each, an “Order”) into which this Agreement is incorporated and sets forth: (a) Customer’s access rights to the Services; (b) the Fees (defined below) payable for such access rights; and (c) any additional terms, restrictions or limitations applicable to Customer’s use of the Services. On or as soon as reasonably practicable after the Effective Date and in accordance with an Order, GoAudience will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Solution in connection with the Services. Customer will prevent unauthorized access to, or use of, the Solution, and notify GoAudience promptly of any such unauthorized use known to Customer. Customer is responsible for managing its Authorized Users’ access to the Solution, including by immediately notifying GoAudience if someone’s status as anAuthorized User has ceased or otherwise should be revoked.
2.2 License Grant. Subject to the terms and conditions of this Agreement, GoAudience grants to Customer a non-exclusive, non-transferable (except as permitted under Section 10.5) license during the Term (as defined below) to access and use the Solution (and any reports provided in connection therewith) and Documentation during the term in connection with the Services, in all instances solely for Customer’s internal business purposes. Customer may only permit Authorized Users to access and use the features and functions of the Solution under this Agreement. For the avoidance of doubt, the Solution is hosted by or on behalf of GoAudience, and Customer shall remotely access the Solution. All rights not expressly granted to Customer in this Agreement are reserved by GoAudience.
2.3 Customer Registration. As part of the registration process, Customer will identify an administrative email and password for Customer’s administrator account. Customer will also provide the full name, email, and phone number for the main administrator on the account for the purposes of GoAudience needing to contact the administrator. Customer further agrees to promptly notify GoAudience of any changes to the foregoing contact information.
2.4 Customer Obligations. The Solution, together with any related software, technology, algorithms, processes, designs, hierarchies, user interfaces, content and any intellectual property rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of GoAudience. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Solution, except as expressly allowed in an Order;(b) modify, adapt, alter or translate the Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Solution for the benefit of any unauthorized third party (including on a service bureau basis for the benefit of others); (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Solution, except as permitted by law; (e) interfere in any manner with the operation of the Solution or the hardware and network used tooperate the Solution; (f) modify, copy or make derivative works based on anypart of the Solution or Documentation; (g) access or use the Solution to build, improve or enhance a similar or competitive product or service; (h) attempt to access the Solution through any unapproved interface; or (i) otherwise use the Solution in any manner inconsistent with applicable law.
2.5 Privacy. By entering oragreeing to this Agreement, Customer acknowledges that Customer has read andunderstands GoAudience’s Privacy Policy, which may be updated or modified fromtime to time, and is hosted at https://www.goaudience.com/legal/privacy-policy.
2.6 Customer Third-Party Accounts. Customer shall provide GoAudience withaccess to Customer’s third party social media accounts or other third-partyaccounts (each, a “Third-Party Account”) used in connection withCustomer’s marketing activities, and intended for use in connection with theServices, and as is permitted under the applicable terms and conditions thatgovern Customer’s use of each Third-Party Account. Customer represents that Customeris entitled to disclose Third-Party Account login information to GoAudienceand/or grant GoAudience access to your Third-Party Account (including, but notlimited to, for use for the purposes described herein) without breach by Customerof any of the terms and conditions that govern Customer’s use of the applicableThird-Party Account and without obligating GoAudience to pay any fees or makingGoAudience subject to any usage limitations imposed by such third-party serviceproviders. By granting GoAudience access to any Third-Party Account, Customeracknowledges and agrees that GoAudience may access, make available and store(if applicable) any information, data, text, software, music, sound,photographs, graphics, video, messages, tags and/or other materials stored in theapplicable Third-Party Account (“SNS Content”) which may be available onand through the Service. Unless otherwise specified in this Agreement, all SNSContent is considered to be Customer Information (excluding Third-Party Data)for all purposes of this Agreement. If a Third-Party Account or associatedservice becomes unavailable, or GoAudience’s access to such Third-Party Accountis terminated by the third-party service provider, then GoAudience’s provisionof the Services may be impacted. Customer’s relationship with the third-partyservice providers associated with Third-Party Accounts is governed solely byCustomer’s agreement(s) with such third-party service providers.
2.7 Usage Reporting. Customer shall grant GoAudience withaccess to the “Standard Access (View Reports)” within Customer’s Meta adaccount controls (or the equivalent for other Third-Party Accounts), to theextent necessary to provide the Services in connection with this Agreement.Customer acknowledges and agrees GoAudience will pull campaign usage reportingand other related metrics and utilize the information to create a usage report(“Usage Report”). For all other Third-Party Accounts where such accessis not permitted or otherwise unable to be granted for any reason, Customeracknowledges that GoAudience will manually create Usage Reports. Customeracknowledges and agrees that GoAudience may share such Usage Reports with GoAudience’s third-party data provider (“Third-PartyData Provider”) to the extent necessary to provide the Services inconnection with this Agreement.
3. CustomerInformation.
3.1 CustomerResponsibility. The Customer Information is the exclusiveproperty of Customer. Customer is solelyresponsible for the accuracy, quality and legality of Customer Information.Customer will obtain all consents and permissions needed for GoAudience to usethe Customer Information to provide the Services. Customer and its AuthorizedUsers will have access to the Customer Information and will be responsible forall changes to or deletions of the Customer Information and the security of allpasswords and other Access Protocols required in order to access the Solution.Customer has the responsibility to employ appropriate security measures toprotect the Customer Information, to comply with applicable laws in connectionwith the use of the Services and Customer Information. Customer acknowledgesthat, to the extent that Customer Information is integrated with third partysoftware offerings, the security of such software systems is the responsibilityof Customer or such third party vendor. Customer is solely responsible for itsown strategic, operational and other business and legal decisions with regardto its use of the Services, and GoAudience shall bear no responsibility orliability for any actions or inactions by Customer or any third party acting onits behalf.
3.2 GoAudienceResponsibility. GoAudience shall comply with allapplicable laws in connection with the provision of the Services, including asrelates to its processing of any Customer Information. GoAudience will maintainreasonable physical, administrative and technical security measures designed toensure the availability, integrity and confidentiality of the CustomerInformation.
4. PAYMENTS.
4.1 Fees.Inconsideration for the access rights granted to Customer and the Servicesperformed by GoAudience under this Agreement, GoAudience will be paid the feesas set forth in an Order (“Fees”). Except as otherwise provided in anOrder, payment obligations are non-cancelable and all amounts paid arenonrefundable except as otherwise agreed by GoAudience. All Fees are billed atthe beginning of the subscription period set forth in an Order. GoAudiencereserves the right (in addition to any other rights or remedies GoAudience mayhave) to discontinue the Solution and suspend Customer’s and Authorized Users’ accessto the Services if any Fees are more than thirty (30) days overdue until suchamounts are paid in full. Customer will maintain complete, accurate andup-to-date Customer billing and contact information at all times.
4.2 Interest. Any amounts not paid when due will bearinterest at the rate of one- and one-half percent (1.5%) per month, or themaximum legal rate if less, from the due date until paid.
4.3 PaymentProvider. GoAudience uses Stripe, Inc. and its affiliates as itsthird-party service provider for payment services (e.g., card acceptance,merchant settlement, and related services) (“Payment Provider”). WhenCustomer makes a purchase on the Solution, Customer shall provide Customer’spayment details and any additional information required to complete the Orderdirectly to the Payment Provider. Customer agrees to be bound by Stripe’sPrivacy Policy (currently accessible at https://stripe.com/us/privacy) and itsTerms of Service (currently accessible at https://stripe.com/ssa) and herebyconsents and authorizes GoAudience and Stripe to share any information and payment instructions providedwith one or more Payment Provider(s) to the minimum extent required to completethe transactions. Online payment transactions may be subject to validationchecks by the Payment Provider and Customer’s card issuer, and GoAudience is not responsible if Customer’s card issuerdeclines to authorize payment for any reason. The Payment Provider uses variousfraud prevention protocols and industry standard verification systems to reducefraud and Customer authorizes it to verify and authenticate paymentinformation. GoAudience shallnot be responsible for any online handling fees or processing fees charged byCustomer’s card issuer. Payment Provider(s) may use third parties under strictconfidentiality and data protection requirements for the purposes of paymentprocessing services.
4.4 Taxes. The Fees are exclusive of all applicablesales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and importfees, or other similar charges, and Customer will be responsible for payment ofall such taxes (other than taxes based on GoAudience’s income), fees, duties,and charges and any related penalties and interest, arising from the payment ofthe fees, the provision of the Services, or the license of the Solution toCustomer. Customer will make all payments of Fees to GoAudience free and clearof, and without reduction for, any withholding taxes; any such taxes imposed onpayments of Fees to GoAudience will be Customer’s sole responsibility, andCustomer will provide GoAudience with official receipts issued by theappropriate taxing authority, or such other evidence as the GoAudience mayreasonably request, to establish that such taxes have been paid.
4.5 Autorenewal. CUSTOMER’S ACCESS TO THE SOLUTION, ANDTHE FEES ASSOCIATED THEREWITH, WILL AUTOMATICALLY RENEW IN ACCORDANCE WITH THETERMS SET FORTH IN THE APPLICABLE ORDER FORM. GOAUDIENCE RESERVES THE RIGHT TOINCREASE THE FEES, UP TO 25%, FOR ANY RENEWAL TERM UPON WRITTEN NOTICE TOCUSTOMER AT LEAST SIXTY (60) DAYS PRIOR TO THE COMMENCEMENT OF THE RENEWALTERM. CUSTOMER ACKNOWLEDGES AND AGREES THAT GOAUDIENCE MAY AUTOMATICALLY CHARGECUSTOMER THE APPLICABLE FEES FOR CONTINUED ACCESS TO AND USE OF THE SOLUTION ATTHE FREQUENCY SET FORTH IN THE APPLICABLE ORDER. CUSTOMER HEREBY AGREES TO PAYSUCH FEES WHICH MAY BE BILLED VIA THE PAYMENT METHOD SET FORTH IN THEAPPLICABLE ORDER.
4.6 Upgrades/Downgrades. Customer may upgrade its subscriptiontier in the middle of Customer’s subscription period as set forth in an Order,and such upgrade will take effect immediately and any incremental feesassociated with such upgrade will be charged in accordance with this Agreement.If Customer elects to downgrade a subscription, the downgrade will take effectas of the first day of the next subscription period. Downgrading a subscriptionmay cause loss of content, features, or capacity of the Services as available,and GoAudience does not accept any liability for such loss.
5. Confidentiality.
5.1 Confidential Information. “Confidential Information” means any nonpublic information of a party(the “Disclosing Party”), whether disclosed orally or in written ordigital media, that is identified as “confidential” or with a similar legend atthe time of such disclosure or that the receiving party (the “ReceivingParty”) knows or should have known is the confidential or proprietaryinformation of the Disclosing Party. For the avoidance of doubt,Customer Information will be considered Confidential Information of Customer.
5.2 Protectionof Confidential Information. TheReceiving Party agrees that it will not use or disclose to any third party any ConfidentialInformation of the Disclosing Party, except as expressly permitted underthis Agreement. The Receiving Party will limit access to the ConfidentialInformation to Authorized Users (with respect to Customer) or to thoseemployees who have a reasonable need to know, who have confidentialityobligations no less restrictive than those set forth herein, and who have beeninformed of the confidential nature of such information (with respect to GoAudience).In addition, the Receiving Party will protect the Disclosing Party’sConfidential Information from unauthorized use, access, or disclosure in thesame manner that it protects its own proprietary information of a similarnature, but in no event with less than reasonable care.
5.3 Exceptions. The confidentiality obligations set forthin Section 5.2 will not apply to any information that(a) is at the time of disclosure or becomes generally available to the publicthrough no fault of the Receiving Party; (b) is lawfully provided to theReceiving Party by a third party free of any confidentiality duties orobligations; (c) was already known to the Receiving Party at the time ofdisclosure free of any confidentiality duties or obligations; or (d) wasindependently developed by employees and contractors of the Receiving Party. Inaddition, the Receiving Party may disclose Confidential Information to theextent that such disclosure is necessary for the Receiving Party to enforce itsrights under this Agreement or is required by law or by the order of a court orsimilar judicial or administrative body, provided that (to the extent legallypermissible) the Receiving Party promptly notifies the Disclosing Party inwriting of such required disclosure and cooperates with the Disclosing Party ifthe Disclosing Party seeks an appropriate protective order.
5.4 Feedback & Aggregate Data. Both during and after the term, GoAudiencemay (a) use any suggestions, enhancement requests, recommendations or otherfeedback obtained in the course of providing the Services or otherwise providedby Customer, including Authorized Users, and (b) use aggregated, de-identified CustomerInformation for any lawful purposes in accordance with applicable privacy laws,including, without limitation, in order to improve and enhance the Solution andthe Services, such as to train its machine learning and artificial intelligencemodels and algorithms, and for other development, diagnostic and correctivepurposes for those or other offerings of GoAudience.
6. Term And Termination.
6.1 Term. This Agreement will commence as of thedate it is accepted by Customer and will remain in full force and effect for solong as any Order remains in effect, unless earlier terminated in accordancewith this Agreement (the “Term”). The term of an Order will begin on theeffective date of the Order and continue in full force and effect for theduration set forth on such Order, unless earlier terminated in accordance withthis Agreement. The Order will automatically renew unless either party provideswritten notice of non-renewal in accordance with the applicable Order.
6.2 Termination for Breach. Either party may terminate this Agreementimmediately upon notice to the other party if the other party materiallybreaches this Agreement, and such breach remains uncured more than thirty (30)days after receipt of written notice of such breach.
6.3 Terminationby GoAudience. GoAudience may at any timeterminate its agreement with Customer if: (a) GoAudience is required to do soby law (for example, where the provision of the Service to Customer is, orbecomes, unlawful); (b) the provision of the Service to Customer by GoAudienceis, in GoAudience’s opinion, no longer commercially viable; or (c) GoAudiencehas elected to discontinue the Service (or any part thereof). In the event GoAudiencedoes not terminate this Agreement for cause, GoAudience will refund any unusedbalance of Customer.
6.4 Cancellation of a Subscription. Customer may cancel or change its subscriptionat any time via Customer’s account on the Solution. If Customer cancels its subscription,Customer may use its subscription until the end of the then-current subscriptionperiod and the subscription will not be renewed after the then-current termexpires.
6.5 Suspension. Notwithstandinganything to the contrary in this Agreement, GoAudience may suspend Customer’sand any Authorized User’s access to any portion or all of the Services if: (a) GoAudiencedetermines, in its sole and exclusive discretion, that (i) there is a threat orattack on the Solution, (ii) Customer’s or any Authorized User’s use of the Servicesdisrupts or poses, or had posed, a security risk to the Solution or to anyother customer or vendor of GoAudience, (iii) Customer, or any Authorized User,is using the Solution for fraudulent or illegal activities, or (iv) orGoAudience’s provision of the Services to Customer or any Authorized User isprohibited by applicable law; or (b) any vendor has suspended or terminated GoAudience’saccess to or use of any third-party services or products required to enableCustomer to access the Services; or (c) if Customer fails to make anypayment when due and such failure continues for thirty (30) days or more (each, a“Service Suspension”). GoAudienceshall use commercially reasonable efforts to provide written notice of anyService Suspension to Customer and to provide updates regarding resumption ofaccess to the Services following any Service Suspension. GoAudience shall usecommercially reasonable efforts to resume providing access to the Services assoon as reasonably practicable after the event giving rise to the ServiceSuspension is cured. GoAudience will have no liability for any damage,liabilities, losses (including any loss of data or profits), or any otherconsequences that Customer or any Authorized User may incur as a result of aService Suspension.
6.6 Effect ofTermination. Upon termination or expiration ofthis Agreement for any reason, Customer’s use of and rights to the Services andSolution shall cease and any amounts owed to GoAudience under this Agreementwill become immediately due and payable. Sections 2.4, 5, 6.6, and 7 to 10 willsurvive expiration or termination of this Agreement.
7. Warranties and Disclaimers.
7.1 MutualWarranties. EachParty represents and warrants the following: (i) that it is duly incorporated,validly existing and in good standing under the laws of its state ofincorporation; (ii) that it has the full power and authority to consent to andperform this Agreement; and (iii) this Agreement has been duly and validlyexecuted and constitutes the legal, valid and binding obligation of such Party,enforceable against such Party in accordance with its terms.
7.2 GoAudienceWarranties. GoAudiencerepresents and warrants that it will provide the Service under this Agreementin a professional and workmanlike manner substantially consistent with generalindustry standards and in compliance with applicable laws, rules andregulations, andthat the Services, when used by Customers as permitted under this Agreement,shall operate substantially as described in the Documentation.
7.3 Customer Warranty. Customerrepresents and warrants to GoAudience that (a) Customer owns the CustomerInformation, or has obtained or provide the necessary notices, licenses,rights, consents, and/or permissions to authorize GoAudience to use theCustomer Information in accordance with this Agreement, and (b) Customer willuse the Services in compliance with the Documentation or other instructionsprovided by GoAudience, and applicable law.
7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THISSECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW, THE SERVICES AND SOLUTION AREPROVIDED “AS IS,” AND GOAUDIENCE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHERWARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS,IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OFMERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. GOAUDIENCEDOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THESERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES GOAUDIENCE GUARANTEE ANYSPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICE. GOAUDIENCE SHALL NOT BERESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITSPRODUCTS OR SERVICES. GOAUDIENCE IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEKTO HOLD GOAUDIENCE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDINGOPERATORS OF EXTERNAL SITES AND THIRD-PARTY SERVICE PROVIDERS.
7.5 Artificial Intelligence. LAWS AND REGULATIONS GOVERNING USE OFARTIFICIAL INTELLIGENCE ARE RAPIDLY EVOLVING, AND GOAUDIENCE DOES NOT GUARANTEETHAT CUSTOMER’S USE OF THE SERVICE WILL COMPLY WITH APPLICABLE LAWS ANDREGULATIONS OR THAT FUTURE LAWS AND REGULATIONS WILL NOT IMPACT USE THEREOF. CUSTOMERIS SOLELY RESPONSIBLE FOR ENSURING THAT CUTOMER’S USE OF THE SERVICE COMPLIESWITH ALL APPLICABLE LAWS.
7.6 Third-PartyData. Customeracknowledges and understands that access to and use of the Solution and/orServices depends in part on access to data provided by third-party sources (“Third Party Data”) to create theresults and insights derived from the Third Party Data and included in theServices. GoAudience is not responsible for the accuracy, currency, orcompleteness of the Third Party Data and makes no representations or warrantiesregarding the Third Party Data. In addition, GoAudience cannot guaranteethe Third Party Data will always be available. If a source of Third PartyData becomes unavailable or GoAudience’s access to such source is terminated bythe third-party service provider, then the Third Party Data will no longer beavailable to be used in connection with the Services. Customer acknowledges andagrees that to the extent the Services utilizes any Third Party Data,GoAudience, and its Third-Party Data Provider, may report usage of Third PartyData to the applicable third-party provider.
8. Limitation of Liability.
8.1 Types of Damages. EXCEPTWITH RESPECT TO A CLAIM FOR INDEMNITY UNDER SECTION 9 OR A BREACH OF APARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, TO THE FULLEST EXTEND PERMITTED UNDERAPPLICABLE LAW, IN NO EVENT WILL EITHERPARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL,CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM,INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OFSUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATAOR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TOAPPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEENBREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages. EXCEPTWITH RESPECT TO A CLAIM FOR INDEMNITY UNDER SECTION 9 OR A BREACH OF APARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, TO THE FULLEST EXTENT PERMITTED UNDERAPPLICABLE LAW, THE MAXIMUM LIABILITY OFEITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOTEXCEED THE FEES paid TO GOAUDIENCE in connection with the services DURING THEtwelve (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TOSUCH LIABILITY. IN NO EVENT WILL GOAUDIENCE HAVE ANY LIABILITY ARISING OUT OFOR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING INTHIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSSNEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS ORFOR DEATH OR PERSONAL INJURY.
8.3 Basis of the Bargain. The parties agree that the limitations ofliability set forth in this Section 8 (Limitation of Liability) will surviveand continue in full force and effect despite any failure of consideration orof an exclusive remedy. The parties acknowledge that the prices have been setand the Agreement entered into in reliance upon these limitations of liabilityand that all such limitations form an essential basis of the bargain betweenthe parties.
9. Indemnification.
9.1 By GoAudience. GoAudience willdefend at its expense any claim, action or suit brought against Customer(including reimbursement of Customer’s reasonable legal or expert fees orrelated litigation costs), and will pay any settlement GoAudience makes orapproves, or any damages finally awarded in such suit, insofar as such suit isbased on a claim, action or suit by any third party alleging that the Solutioninfringes such third party’s patents, copyrights or trade secret rights underapplicable laws within the United States of America. If the Solution becomes,or in GoAudience’s opinion is likely to become, the subject of an infringementclaim, GoAudience may, at its option and expense, either (a) procure forCustomer the right to continue using the Services in accordance with thisAgreement; (b) replace or modify the Services so that it becomes non-infringingand remains functionally equivalent; or (c) refund to Customer any payments ofprepaid fees made by Customer to GoAudience, and terminate this Agreement. Notwithstandingthe foregoing, GoAudience will have no obligation under this section orotherwise with respect to any infringement claim based upon (i) any use of theService not in accordance with this Agreement, (ii) any use of the Service incombination with other products, services, software or data not supplied by GoAudience,(iii) any use, reproduction, or distribution of any release of the Serviceother than the most current release made available to Customer, or (iv) anymodification of the Service by any person other than GoAudience or its authorized agents or contractors. This Sectionstates GoAudience’s entireliability and Customer’s sole and exclusive remedy for infringement claims andactions.
9.2 ByCustomer. Customer will defend at its expense any claim, action orsuit brought against GoAudience (including reimbursement of GoAudience’sreasonable legal or expert fees or related litigation costs), and will pay anysettlement Customer makes or approves, or any damages finally awarded in suchsuit, insofar as such suit is based on a claim, action or suit arising out ofor relating to any Customer Information or any improper or unauthorized use ofthe Service.
9.3 Procedure. The indemnifying party’s obligations asset forth above are expresslyconditioned upon each of the foregoing: (a) the indemnified party will promptlynotify the indemnifying party in writing of any threatened or actual claim orsuit; (b) the indemnifying party will have sole control of the defense orsettlement of any claim or suit; and (c) the indemnified party will cooperatewith the indemnifying party to facilitate the settlement or defense of anyclaim or suit.
10. Miscellaneous.
10.1 Marketing.Notwithstanding anything else in this Agreement,Customer hereby grants to GoAudience the express right to use Customer’scompany name and logo on GoAudience’s website and in marketing and publicitymaterials and other communications to identify Customer as a GoAudiencecustomer.
10.2 GoverningLaw and Venue. This Agreement and any action related thereto will begoverned and interpreted by and under the laws of the State of New York,without giving effect to any conflicts of laws principles that require theapplication of the law of a different jurisdiction. The Parties herebyexpressly consent to the exclusive personal jurisdiction and venue in the stateand federal courts for New York, New York for any lawsuit arising from orrelated to this Agreement. The United Nations Convention on Contracts for theInternational Sale of Goods does not apply to this Agreement.
10.3 Export & Foreign Use. Customer agreesnot to export, reexport, or transfer, directly or indirectly, any U.S.technical data acquired from GoAudience, or any products utilizing such data,in violation of the United States export laws or regulations. GoAudience makeno representation that the Service is appropriate or available for use inlocations other than the United States and, if Customer uses the Service fromoutside the United States, Customer is solely responsible for compliance withall applicable laws, including without limitation export and import regulationsof other countries.
10.4 Severability.If any provision of this Agreement is, for any reason,held to be invalid or unenforceable, the other provisions of this Agreementwill remain enforceable and the invalid or unenforceable provision will bedeemed modified so that it is valid and enforceable to the maximum extentpermitted by law.
10.5 Waiver. Anywaiver or failure to enforce any provision of this Agreement on one occasionwill not be deemed a waiver of any other provision or of such provision on anyother occasion.
10.6 NoAssignment. Neitherparty will assign, subcontract, delegate, or otherwise transfer this Agreement,or its rights and obligations herein, without obtaining the prior writtenconsent of the other party, and any attempted assignment, subcontract,delegation, or transfer in violation of the foregoing will be null and void;provided, however, that either party may assign this Agreement in connectionwith a merger, acquisition, reorganization or sale of all or substantially allof its assets, or other operation of law, without any consent of the otherparty. The terms of this Agreement will be binding upon the parties and theirrespective successors and permitted assigns.
10.7 Compliancewith Law. Customerwill always comply with all international and domestic laws, ordinances,regulations, and statutes that are applicable to its purchase and use of the Services.
10.8 ForceMajeure. Anydelay in the performance of any duties or obligations of either party (exceptthe payment of Fees owed) will not be considered a breach of this Agreement ifsuch delay is caused by a labor dispute, shortage of materials,telecommunication or internet delays or failures, fire, earthquake, flood,pandemic or epidemic, or any other event beyond the control of such party,provided that such party uses reasonable efforts, under the circumstances, tonotify the other party of the cause of such delay and to resume performance assoon as possible.
10.9 IndependentContractors.Customer’s relationship to GoAudience is that of an independent contractor, andneither party is an agent or partner of the other. Customer will not have, and will not represent to any thirdparty that it has, any authority to act on behalf of GoAudience.
10.10 Notices. Allnotices required or permitted under this agreement must be delivered inwriting, if to GoAudience, by emailing an@goaudience.com and if to Customer byemailing the Customer Point of Contact email address listed on an Order,provided, however, that with respect to any notices relating to breaches ofthis agreement or termination, a copy of such notice will also be sent inwriting to the other party at the address listed on an Order by courier, bycertified or registered mail (postage prepaid and return receipt requested), orby a nationally-recognized express mail service. Each party may change itsemail address and/or address for receipt of notice by giving notice to theother party.
10.11 Counterparts. This Agreement may be executed in one ormore counterparts, each of which will be deemed an original and all of whichwill be taken together and deemed to be one instrument.
10.12 Entire Agreement. This Agreement, along with any Order orrelated ancillary documents, is the final, complete and exclusive agreement ofthe parties with respect to the subject matters hereof and supersedes andmerges all prior discussions between the parties with respect to such subjectmatters. No modification of or amendment to this Agreement, or any waiver ofany rights under this Agreement, will be effective unless in writing and signedby an authorized signatory of Customer and the GoAudience.