Terms of Service
These Master Subscription Agreement Terms of Service (“Terms of Service”), together with the Data Processing Addendum (attached hereto and made a part hereof as Schedule A), and any and all Order Forms constitutes a binding agreement (collectively, the “Agreement”) by and between AudienceZen Ltd., a New Zealand Limited company,with offices at 68 Mandeville Street, Christchurch 8011, New Zealand (“AudienceZen”), and you and the legal entity you represent (respectively, “you” and “Customer”) is entered into and effective as of the date you register an account on behalf of the Customer and enter into an Order Form on behalf of the Customer (“Effective Date”),
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING THE CHECKBOX BESIDE THE “I AGREE” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM AND ENTER INTO A BINDING CONTRACT WITH AUDIENCEZEN, (3) THE INFORMATION YOU PROVIDED IN CONNECTION WITH YOUR REGISTRATION FOR THE SERVICES IS ACCURATE AND COMPLETE, AND (4) YOU HAVE THE NECESSARY AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF THE COMPANY YOU IDENTIFIED AS THE CUSTOMER DURING THE REGISTRATION PROCESS, AND TO BIND THAT COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE LEGAL ENTITY IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU DO NOT HAVE SUCH AUTHORITY OR ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH AUDIENCEZEN, YOU MAY NOT ACCESS OR USE THE SERVICES.
AudienceZen offers an automated audience cognitive profiling and marketing service and related services, and Customer desires to obtain access to and utilize the AudienceZen Platform and Service(s) in accordance with the terms and conditions set forth in this Agreement. Capitalized terms used herein have the meanings ascribed to them in Section 11 (Definitions) or elsewhere in this Agreement.
In consideration of the mutual promises and agreements contained herein, the sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Provision of the Service(s), Software and Professional Services.
1.1 Order Forms. Customer will order the Service(s) from AudienceZen pursuant to valid Order Form(s) submitted to AudienceZen by Customer from time to time. Each such valid and properly submitted Order Form is incorporated into this Agreement as if fully set forth herein.
1.2 Service(s); Software; License Grant. Subject to the terms and conditions of this Agreement, AudienceZen hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right during each applicable Order Form Term to access and use the Service(s) (including the Software made available as part of the Services) ordered pursuant to each such Order Form and to use the Deliverables received solely for Customer’s own product advertising, marketing and sales purposes, and not for the benefit of any third party (“Business Purpose”). AudienceZen will make the Service(s) available to Customer via the AudienceZen Platform in accordance with the Documentation.
1.3 License Restrictions. Customer will not, and shall ensure that its Authorized Parties do not,: (a) modify, copy or create any derivative works based on the Service(s), Software or Documentation; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service(s), Software or Documentation available to any third party, other than to Authorized Parties as permitted herein; (c) reverse engineer or decompile any portion of the Service(s), Software or Documentation, including but not limited to, any software utilized by AudienceZen in the provision of the Service(s); (d) access the Service(s), Software or Documentation in order to build any commercially available product or service; or (e) copy any features, functions, integrations, interfaces or graphics of the Service(s), Software or Documentation; or (f) create internet links to the Service(s) or frame or mirror the Service(s).
1.4 Upgrades and Enhancements. Customer acknowledges that AudienceZen has no obligation to provide any upgrades, enhancements to, or new releases or new versions of, the Service(s). To the extent that AudienceZen, at its sole discretion, develops and makes Improvements available during the Term, AudienceZen will also provide to Customer access to any such Improvements, whereupon such Improvements will be incorporated in the license to the Service(s) granted herein (as applicable). For the avoidance of doubt, this Agreement does not entitle Customer to New Products at no additional charge.
1.5 Product Changes. AudienceZen reserves the right to discontinue, modify and/or replace any Service(s) or Software, , provided that if the performance, operation or reliability of the respective Service(s) or Software is negatively and materially affected, AudienceZen will provide Customer with thirty (30) days’ prior written notice to Customer (electronic notice acceptable) and AudienceZen will reduce for Customer the applicable prices accordingly.
2. Customer’s Use of the Service(s) and Software; Customer Obligations.
2.1 Customer Obligations. Customer may enable access to the Service(s) for use only by Authorized Parties solely for the Business Purposes of Customer in accordance with the Documentation and the terms and conditions of this Agreement. Customer is responsible for all Authorized Parties use of the Service(s) and compliance with this Agreement, as well as restricting access by any individual who is no longer an Authorized Party. Customer will: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data; (b) grant User IDs and passwords to individually named Authorized Parties; (c) require that all Authorized Parties keep User ID and password information strictly confidential and not share such information with any third party; (d) prevent unauthorized access to, or use of, the Service(s), and notify AudienceZen promptly of any such unauthorized access or use (including any unauthorized access or use caused by misuse or misappropriation of User IDs or passwords); and (e) comply with its obligations under all laws applicable to Customer’s use of the Service(s), including all such laws related to privacy, data security, and data protection. Customer will not: (i) use the Service(s) or Software in violation of applicable Laws; (ii) in connection with the Service(s), send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates any privacy rights or Laws; (iii) send or store Malicious Code in connection with the Service(s); (iv) interfere with or disrupt performance of the Service(s) or the data contained therein; or (v) attempt to gain access to the Service(s) or the Audience Platform in a manner not set forth in the Documentation. Customer will designate a maximum number of Authorized Parties as listed in the applicable Order Form to have access to the Services. The Service(s) are provided in English. Customer will be liable for the acts and omissions of all Authorized Parties relating to this Agreement to the same extent that such acts and omissions of the Authorized Parties were the acts and omissions of Customer.
2.2 Restrictions. Except as expressly set forth on the applicable Order Form, Customer shall not provide any of the Deliverables to any third party. Customer will not use the Service(s) or Software for benchmarking or testing performance. Customer will only use the Service(s) and Software received from AudienceZen under this Agreement for Customer’s Business Purposes, and for no other purpose.
2.3 Usage Limitations. Customer acknowledges and agrees that Customer’s access to and use of the Service(s) may be limited or capped as set forth in the applicable Order Form. Further, Customer acknowledges that access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions.
2.4 Internet Access. Customer shall be responsible for setting up and configuring the Services, including without limitation any provisioning of access to the Services to its Authorized Parties. Customer acknowledges that access to the AudienceZen Platform and the use of the full functionality of the Service(s) requires a high speed internet connection. Customer is responsible for procuring and maintaining the equipment and network connections that connect the Customer Systems to the internet necessary to communicate with the Service(s).
2.5 Cooperation with Customer Vendors. Customer may use the Services to interact with third party vendor products (e.g., e-commerce platform vendors). Some such vendor products may require that Customer or AudienceZen provide them with certain Customer Data that resides on the AudienceZen Platform. In these cases, we consider your request to integrate with the vendor as your consent to provide this data to the vendor. If Customer does not want this Customer Data to be provided to the vendor, please immediately inform AudienceZen of same in writing.
2.6 Suspension, Limitation and Termination of Access. AudienceZen shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event that AudienceZen determines, in its sole but reasonable discretion, that (i) the Services are being used by Customer or its Authorized Parties in violation of any applicable laws or regulations or this Agreement; (ii) the Services are being used by Customer or its Authorized Parties in an unauthorized or fraudulent manner; (iii) the use of the Services by Customer or its Authorized Parties adversely impacts AudienceZen’s equipment or he provision of service to others; (iv) AudienceZen is prohibited by a court or other governmental agency from providing the Services; (v) there is a denial of service attack or any other event which AudienceZen determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of the Services, Customer’s account or Customer Data; or (vii) any amount due under this Agreement is not received by AudienceZen within fifteen (15) days after it was due. Without limiting the generality of this Section, AudienceZen shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services pursuant to this Section 2.6.
2.7 Customer Communications Customer shall comply with all applicable laws and regulations applicable to Customer’s use of the Services, including Customer communications with its customers and the content of those communications. Customer acknowledges and agrees that AudienceZen (i) does not monitor or control such communications, or guarantee the accuracy, integrity, security or quality of such Customer communications and (ii) is not responsible for obtaining any necessary consents or permissions from recipients of Customer communications.
3.1 Invoices & Payment. Customer will pay the fees set forth in each Order Form. AudienceZen will charge Customer the fees for the Services in advance for each billing period set forth on the applicable Order Form(s) on or after the first day of such billing period. If Customer is paying by credit card: (i) Customer hereby irrevocably authorizes AudienceZen to charge the credit card for any such amounts when due; (ii) if Customer’s credit card is declined, AudienceZen will attempt to reach out to Customer for a new payment method. If AudienceZen fails to resolve an issue with Customer resulting from a credit card decline or expiration, AudienceZen may suspend access to the Services until full payment is received or terminate the Agreement for non-payment. Customer may withhold payment of invoiced amounts it disputes reasonably and in good faith, provided Customer: (a) notifies AudienceZen of the basis for the withholding and the amount within ten (10) days of the due date of the applicable payment; (b) timely pays all other amounts in the applicable invoice; and (c) works diligently and in good faith with AudienceZen to resolve the dispute and thereafter promptly pays any amounts due. Except as otherwise stated in an Order Form or elsewhere in the Agreement, all fees are quoted and payable in United States dollars and are non-refundable. Customer will provide AudienceZen with complete and accurate billing and contact information including a valid email address for receipt of invoices. Upon AudienceZen’s request, Customer will make payments via wire transfer or such other payment method as the parties may agree.
3.2 Non-cancelable & non-refundable. Except as specifically set forth to the contrary under Section 6.3 (Warranty Remedies) and Section 7.1 (Indemnification by AudienceZen), all payment obligations under any and all Order Forms are non-cancelable and all payments made are non-refundable. The fees for the level of permitted usage of the Service(s) are as set forth in the applicable Order Form Fee Table (“Usage Fees”). The initially agreed to level of permitted Service(s) usage and the corresponding minimum monthly Usage Fees identified in an Order Form cannot be decreased during an Order Form Term. However, in the event and to the extent Customer’s level of usage exceeds the initial level of permitted Service(s) usage (or any subsequent increase in usage thereafter) set forth in the Order Form, Customer shall thereafter pay the Usage Fees corresponding to the actual level of Service(s) usage.
3.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to fees then under reasonable and good faith dispute), at AudienceZen's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid.
3.4 Non-Payment and Suspension of Service(s). If Customer's account is more than thirty (30) days past due (except with respect to fees subject to a reasonable and good faith dispute), in addition to any other rights or remedies AudienceZen may have under this Agreement or by Law, AudienceZen reserves the right to suspend Customer’s access to the Service(s) upon thirty (30) days written notice, without liability to Customer, until such amounts are paid in full.
3.5 Taxes. AudienceZen’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with this Agreement, excluding taxes based on AudienceZen income. If Customer has an obligation to withhold any amounts under any law or tax regime, Customer will gross up the payments so that AudienceZen receives the amount actually invoiced. If AudienceZen has a legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides AudienceZen with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.6 Expenses. If pre-approved by Customer in an Order Form, Customer shall reimburse AudienceZen for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Order Form. All costs and expenses incurred by Customer in connection with this Agreement are the sole responsibility of Customer.
4. Proprietary Rights; Customer Data.
4.1 Ownership and Reservation of Rights to AudienceZen Intellectual Property. As between AudienceZen and Customer, AudienceZen owns all right, title and interest in and to the AudienceZen Platform, the Service(s), the Software, the Documentation and all derivative works thereof or thereto, including, without limitation, all Intellectual Property Rights related thereto. Subject to the limited rights expressly granted hereunder, AudienceZen reserves all rights, title and interest in and to the Service(s), Software and Documentation, including all related Intellectual Property Rights thereto. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
4.2 Customer Feedback. Customerand Authorized Parties may elect to provide AudienceZen with suggestions, enhancement requests, recommendations and other feedback concerning the Service(s) and/or Software (the “Customer Feedback”). Customer hereby grants to AudienceZen a perpetual, royalty free, transferable, irrevocable, sublicensable, worldwide right and license to use the Customer Feedback in its discretion without obligation to Customer. AudienceZen will have no obligation to make Customer Feedback an Improvement.
4.3 Ownership of Customer Data. As between AudienceZen and Customer, Customer owns the Customer Data. AudienceZen will have, and Customer hereby grants to AudienceZen, a royalty-free, worldwide, non-transferable, non-sub-licensable, license to use the Customer Data during the Term to configure and/or provide the Service(s) to Customer, or to prevent or address service or technical problems, in accordance with this Agreement and the Documentation, or otherwise in accordance with Customer’s instructions. Further, Customer hereby grants to AudienceZen, a royalty-free, worldwide, transferable, sub-licensable, perpetual license to use the Customer Data in anonymized and aggregated form to develop analytics that may be used to provide products and services to Customer and/or to other AudienceZen customers, provided that: (a) AudienceZen offers to make available to Customer functionality and services based on anonymized data obtained from other AudienceZen customers that are similar to the functionality and services provided to such other customers based on the anonymized customer data; and (b) AudienceZen may not sell or offer for sale any Customer Data, whether in Customer identifiable, or anonymized and aggregated form. AudienceZen will comply with its obligations under all Laws applicable to AudienceZen’s provision of the Service(s), including all such laws related to privacy, data security, and data protection.
4.4 Usage Data. AudienceZen may collect certain information in connection with Customer’s access to or use of the Service(s), such as access records, date and time stamps, activity records, and system performance data (“Usage Data”). AudienceZen may use Usage Data to deliver and manage its products and services, perform maintenance and support, and develop, test, and improve the Service(s) and other AudienceZen products and services, and generate statistical data about usage of its products and services. As between AudienceZen and Customer, AudienceZen owns the Usage Data.
4.5 Customer Personal Data. AudienceZen shall collect, use, disclose and otherwise process Customer Personal Data (as defined in the Data Processing Addendum), and safeguard the privacy, confidentiality and security of Customer Personal Data in accordance with the requirements set forth in the Data Processing Addendum.
5.1 Confidentiality. A party will not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other party's prior written permission.
5.2 Protection. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
5.3 Compelled Disclosure. A disclosure by one party of Confidential Information of the other party to the extent required by Law will not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure.
5.4 Remedies. If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party will have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts without the necessity of posting a bond, it being acknowledged by the parties that any other available remedies are inadequate.
5.5 Exclusions. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the other party; (b) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party, as evidenced by contemporaneous written records; (c) was independently developed by a party without use of the other party’s Confidential Data and without breach of any obligation owed to the other party, as evidenced by contemporaneous written records; or (d) is received from a third party without, to the receiving party’s knowledge, breach of any obligation owed to the other party.
6. Warranties & Disclaimers.
6.1 Mutual Warranties. Each party warrants to the other party that it is a corporation or other legal entity duly organized, validly existing and in good standing in the jurisdiction of its formation, and that it has all necessary corporate or similar power and authority to execute and deliver this Agreement.
6.2 Service(s) Warranty. AudienceZen warrants to Customer that during the Term the Service(s) and Software will perform substantially in accordance with applicable Documentation.
6.3 Warranty Remedies. As Customer's exclusive remedy and AudienceZen’s sole liability for breach of the warranty set forth in Section 6.2 (Service(s) Warranty): (a) AudienceZen will correct the non-conforming Service(s) at no additional charge to Customer, or (b) in the event AudienceZen is unable to correct such deficiencies after good faith efforts, AudienceZen will refund Customer amounts paid that are attributable to the defective Service(s) from the date AudienceZen received such notice. To receive warranty remedies, Customer must report deficiencies in writing to AudienceZen within fifteen (15) days after Customer first identifies the deficiency.
6.4 Customer Warranties. Customer warrants that Customer is the owner, or otherwise has the right, and has valid consents and releases to lawfully transmit, store and use all Customer Data in connection with the Services and to grant the rights granted to AudienceZen under this Agreement.
6.5 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 (MUTUAL WARRANTIES) AND SECTION 6.2 (SERVICE(S) WARRANTY) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AUDIENCEZEN DOES NOT WARRANT THAT THE SERVICE(S) OR SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED IN SECTION 6.1 (MUTUAL WARRANTIES) AND SECTION 6.2 (SERVICE(S) WARRANTY) ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT.
7.1 Indemnification by AudienceZen. Subject to Section 7.3, AudienceZen will defend Customer and its employees, officers, and directors against any third party claim alleging that Customer’s use of the Service(s) in the form delivered or provided by AudienceZen when used in accordance with the Documentation and in compliance with this Agreement infringes that third party’s copyright, U.S. patent issued as of the Effective Date, or trademark and will pay the amount of any adverse final judgment or settlement to which AudienceZen consents. AudienceZen will have no obligation or liability under this Section 7.1 (Indemnification by AudienceZen) to the extent the third party claim arises from: (a) Customer’s failure to incorporate a software or other update or upgrade made available by AudienceZen that would have avoided the alleged infringement; (b) modification of the Service(s) or Software by anyone other than AudienceZen or its subcontractors at the direction of AudienceZen; (c) specifications, instructions, features, functions or designs or other elements provided by or requested by Customer; (d) use of the Service(s) or Software in combination with any other product, service, process or material not provided by AudienceZen; or (e) use of the Service(s) or Software in a manner not otherwise contemplated by this Agreement. If the Service(s) or Software is (or AudienceZen believes either is likely to become) the subject of a claim for which AudienceZen would be obligated to defend and indemnify pursuant to this Section, then AudienceZen may, at its sole option, obtain for Customer the right to continue use of the Service(s) or Software or replace or modify the Service(s) or Software, as applicable, so as to make them non-infringing provided there is no material loss of functionality. If neither of the foregoing options is reasonably available to AudienceZen, in its judgment, then use of the Service(s) or Software may be terminated at the option of AudienceZen, and AudienceZen’s sole liability, and Customer’s sole remedy, will be to refund any prepaid fees for the terminated Service(s) and/or Software applicable to periods after the date of termination.
7.2 Indemnification by Customer. Subject to Section 7.3, Customer will defend AudienceZen, its Affiliates, and their respective employees, officers, and directors against any third party claim alleging that any Customer Data infringes or misappropriates the rights of a third party (including, without limitation, any applicable privacy rights) or violates any Law and will pay the amount of any adverse final judgment or settlement to which Customer consents.
7.3 Procedures. Each party will give the other party prompt written notice of any claim to which a defense and payment obligation under this Section 7 (Indemnification) may apply (provided that failure to provide such prompt written notice shall not relieve the indemnifying party of its obligations under this Section 7 except to the extent that indemnifying party has been materially prejudiced as a result of such delay). The indemnifying party will have the sole right to control the defense and settlement of any third party claim, except that any settlement for other than money damages will be subject to the approval of the indemnified party, which approval will not be unreasonably withheld, conditioned or delayed and the indemnified party will reasonably cooperate in the defense or settlement of such claim at the indemnifying party’s expense. An indemnifying party’s defense and payment obligations under this Section 7 (Indemnification) will be diminished to the extent that it is materially prejudiced by the indemnified party’s non-compliance with the foregoing procedures.
8. Limitation of Liability.
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 5 (CONFIDENTIALITY), EITHER PARTY’S OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION) AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY'S (OR AUDIENCEZEN’S THIRD PARTY LICENSORS’) TOTAL AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CUSTOMER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM FOR DAMAGES FOR THE SERVICE(S) FROM WHICH THE CLAIM AROSE. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THAT LIMIT.
8.2 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 5 (CONFIDENTIALITY), EITHER PARTY’S OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION) AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF DATA RECONSTRUCTION OR COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE(S) OR SOFTWARE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9. Term & Termination.
9.1 Term of Agreement. The term of this Agreement commences on the Effective Date and, unless terminated sooner in accordance with this Agreement, continues until the stated term in all Order Forms have expired or have otherwise been terminated, unless otherwise extended pursuant to the written agreement of the parties (the “Term”). Licenses to access and use the Services commence on the date, and are for a period of time, as set forth in the applicable Order Form (including any renewal terms stated in the Order Form).
9.2 Term of Trial Period. Customer may elect to utilize the Service(s) for a thirty (30) day trial period at no charge to Customer (“Trial Period”). Customer may terminate its use of Service(s) being used on a Trial Period basis at any time during the Trial Period by deleting Customer’s organization using the tools provided on the General Setting page of the AudienceZen Application. In the event Customer does not so terminate such Services(s) within the Trial Period, Customer shall pay for such Services at the rate and for the term identified on the applicable Order Form, all in accordance with the terms and conditions of the Agreement.
9.3 Termination of Agreement. Either party may terminate this Agreement: (a) upon thirty (30) days prior written notice to the other party of a material breach of this Agreement by the other party if such breach remains uncured at the expiration of such notice period; or (b) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. The Agreement may also be terminated upon the mutual written agreement of the parties to so terminate the Agreement. In the event the Agreement is terminated, all Order Forms are simultaneously terminated.
9.4 Termination of Order Form(s). Either party may terminate any Order Form: (a) upon thirty (30) days prior written notice to the other party of a material breach of this Agreement by the other party if such breach remains uncured at the expiration of such notice period. Each Order Form may also be terminated upon the mutual written agreement of the parties to so terminate an Order Form(s).
9.5 Effect of Termination of Agreement. Upon any termination of this Agreement all rights granted to Customer to access and use the Service(s) shall immediately terminate (except as set forth in Section 9.7 below) and Customer will, as of the date of termination:(i) immediately cease accessing and utilizing the Service(s) and Software (except as permitted under Section 9.6 (Retrieval of Customer Data) and AudienceZen Confidential Information; (ii) except as expressly set forth in the applicable Order Form, immediately cease any further use of the Deliverables. Termination for any reason will not relieve Customer of the obligation to pay any fees accrued or due and payable to AudienceZen prior to the effective date of termination. Upon termination by AudienceZen for material breach by Customer, all future amounts due under all Order Forms will be accelerated and become due and payable immediately. Those provisions that by their express terms survive, including, without limitation, Sections 4.1, 4.2, 4.3, 4.4, 5, 7, 8, 9.5, 9.6 (with respect to termination of an Order Form) and 9.7 will survive the expiration or any termination of this Agreement. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party will be liable to the other party for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable Law.
9.6 Effect of Termination of Order Form(s). Upon any termination of an Order Form, Customer will, as of the date of such termination:(i) immediately cease accessing and utilizing the Service(s) identified in the terminated Order Form (except as permitted under Section 9.6 (Retrieval of Customer Data); (ii) except as expressly set forth in the applicable Order Form, immediately cease any further use of the Deliverables provided pursuant to the terminated Order Form. Termination for any reason will not relieve Customer of the obligation to pay any fees accrued or due and payable to AudienceZen pursuant to the terminated Order Form prior to the effective date of termination. Upon termination by AudienceZen for material breach by Customer, all future amounts due under the terminated Order Form will be accelerated and become due and payable immediately. Termination of and Order Form by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party will be liable to the other party for damages of any kind solely as a result of terminating an Order Form in accordance with its terms, and termination of an Order Form by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable Law.
9.7 Retrieval of Customer Data. Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, AudienceZen will make Customer Data available to Customer through the Service(s) on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to thirty (30) days after such request is received by AudienceZen. After such thirty (30)-day period, AudienceZen will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data.
10. General Provisions.
10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The relationship of the parties described in this Agreement is non-exclusive, and nothing in this Agreement will be construed as limiting AudienceZen’s entering into similar relationships with third parties of any kind in any place. There are no third party beneficiaries to this Agreement.
10.2 Publicity. Customer agrees that AudienceZen may use Customer's name and logo in lists of customers, on promotional and marketing materials and on its website. AudienceZen agrees that, subject to AudienceZen’s written consent in each instance, Customer may use AudienceZen’s name and logo to identify AudienceZen as Customer’s audience cognitive profiling marketing solution provider on promotional and marketing materials and on its website.
10.3 Notices. All legal notices under this Agreement will be in writing sent to: with respect to AudienceZen to the address set forth on the cover page hereof, and with respect to Customer, to the address provided at the time of Customer’s registration for an AudienceZen account. All notices will be deemed to have been given upon: (a) personal delivery; or (b) the third business day after first class mailing;. Notices to AudienceZen will be addressed to the attention of the Chief Executive Officer. Notices to Customer will be addressed to Customer’s contact identified at the time of Customer’s registration for an AudienceZen account. Each party may modify its address for notices and recipient of notices by providing notice pursuant to this Agreement.
10.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at Law or in equity.
10.5 Force Majeure. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control, including, but not limited to, acts of God, acts of government, pandemic, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving AudienceZen or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
10.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of Law or otherwise, without the prior written consent of the other party (which consent will not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) upon written notice to, but without consent of, the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement, and further provided that Customer may not assign this Agreement to a AudienceZen Competitor. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.7 Governing Law; Waiver of Jury Trial. This Agreement will be governed exclusively by the internal laws of the State of New York, USA, without regard to its conflicts of laws rules. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement and irrevocably consents to the personal jurisdiction and venue of any state or federal court located in New York, New York, USA. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
10.8 Attorneys’ Fees. If any legal action, including an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, will be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
10.9 Export. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service(s) and Software. Without limiting the generality of the foregoing, Customer will not make the Software or Service(s) or any Deliverable available to any person or entity that: (a) is located in a country that is subject to a U.S. government embargo; (b) is listed on any U.S. government list of prohibited or restricted parties; or (c) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
10.10 Changes to the Terms of the Agreement. AudienceZen may revise the terms and conditions of the Terms of Service and/or the Data Processing Agreement by providing Customer with notice of any such changes provided to Customer’s then current e-mail address in Customer’s account with AudienceZen. Any use of the Service(s) five (5) days or more after the sending of such notification will be deemed to be Customer’s agreement to the revised terms and conditions.
10.11 Miscellaneous. This Agreement, including all Order Forms and the Data Processing Addendum, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict: (a) the provisions of an Order Form will take precedence over provisions of the Terms of Service; and (b) the provisions of the Data Processing Addendum will take precedence over provisions in the Terms of Service and any Order Form only with respect to the subject matter of the Data Processing Addendum. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then: (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby; and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. Section headings are for convenience only and are not intended to affect the meaning or interpretation of this Agreement. This Agreement may be executed in counterparts, which taken together will form one binding legal instrument. The parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement will be legally binding with the same force and effect as manually executed signatures.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by a party hereto. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Terms of Service, any and all accepted Order Forms and the Data Processing Addendum.
“API” means AudienceZen’s application programming interface designed to facilitate the transmission of data (including Customer Data) to and/or from the Service(s) and licensed by Customer as part of the Software pursuant to this Agreement.
“Authorized Parties” means Customer’s employees and third parties authorized by Customer to access and use the Service(s).
“AudienceZen” has the meaning set forth in the introductory paragraph of the Terms of Service.
“AudienceZen Competitor” means any entity that may be reasonably construed as offering competitive functionality or services to those offered by AudienceZen.
“AudienceZen Platform” means AudienceZen’s computer hardware and software platform and other software, hardware, equipment, information, processes and procedures used by AudienceZen to provide the Service(s) to Customer pursuant to this Agreement.
“Business Purposes” has the meaning set forth in Section 1.2 of the Terms of Service.
“Confidential Information” means: (a) with respect to AudienceZen, any software (including, without limitation, the Software) utilized by AudienceZen in the provision of the Service(s) (including source code and object code); (b) with respect to Customer, Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or the parties identities).
“Customer” has the meaning set forth in the introductory paragraph of the Terms of Service.
“Customer Data” means the data or information submitted by Customer or Authorized Parties to the Service(s).
“Customer Feedback” has the meaning set forth in Section 4.2 (Customer Feedback) of the Terms of Service.
“Customer System” means the communication lines, terminals, equipment, computer software, and interface devices required for Customer to access the AudienceZen Platform and to transmit and receive data between Customer’s location(s) and the AudienceZen Platform in order for Customer to access and use the Service(s).
“Data Processing Addendum” means the Data Processing Addendum attached to these Terms of Services as Schedule A and made a part of the Agreement.
“Deliverables” means the output provided to Customer via the Service(s) or directly from AudienceZen based on the Service(s), including, without limitation, the 12 Typology(ies) and the associated descriptions of the psychology of the individuals who fit into a Typology(ies), and the written guidance for communicating with the members of a Typology(ies).
“Documentation” means AudienceZen’s electronic and hardcopy user guide for the Service(s) and Software, which may be updated by AudienceZen from time to time.
“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service(s), as developed by or on behalf of AudienceZen and made generally available for production use without a separate charge to customers.
“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable Laws anywhere in the world, and all moral rights related thereto.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
“New Product” means a release of Service(s) with significant new functionality and/or new features and any associated user documentation which: (a) AudienceZen in its sole discretion designates as a new product; or (b) is made generally commercially available by AudienceZen for a separate charge; and (c) is marketed by AudienceZen as a new product generally to its end user customers even if it is capable of being integrated with the prior versions of the Service(s).
“Order Form” means each separate ordering document under which Customer subscribes to the Service(s) pursuant to this Agreement that has been agreed to by the Customer and AudienceZen and accepted by AudienceZen pursuant to Section 1.1 (Order Forms). Each Order Form shall include, at a minimum: (i) the Service(s) to be provided; (ii) the Order Form Term; (iii) the Deliverables to be provided; (iv) the tiered Usage Fee table; and (v) the initial minimum level of permitted Service(s) usage selected and the corresponding minimum monthly Usage Fees.
“Order Form Term” means that period of time identified on an Order Form during which Customer has the right and license: (i) to access the AudienceZen Platform and use the Service(s) identified on that Order Form; and, (ii) except as expressly set forth in the applicable Order Form, the Deliverables.
“Service(s)” means AudienceZen’s subscription-based software-as-a-service offerings provided to Customer by AudienceZen in connection with Customer’s access to and use of the Software via the AudienceZen Platform, as described in the Documentation and subscribed to pursuant to an Order Form.
“Software” means AudienceZen’s software applications, including, without limitation any APIs, provided in connection with the Service(s) identified on an Order Form and access to which is provided via the AudienceZen Platform and is licensed by Customer pursuant to this Agreement as part of the licensed Service(s).
“Taxes” has the meaning set forth in Section 3.5 (Taxes) of the Terms of Service.
“Term” has the meaning set forth in Section 9.1 (Term of Agreement) of the Terms of Service.
“Typology(ies”) means the 12 types of customer purchasing behaviors identified by AudienceZen.
“Usage Data” has the meaning set forth in Section 4.4 (Usage Data) of the Terms of Service.
"Usage Fees” Has the meaning set forth in Section 3.2 (Non-cancelable & non-refundable) of the Terms of Service.
“User ID” means the unique user identification for sign in by Authorized Parties to the AudienceZen Platform in order to gain access to the Service(s).
DATA PROCESSING ADDENDUM
This AudienceZen Data Processing Addendum (“Addendum”) is an addendum to the AudienceZen Master Subscription Agreement Terms of Service (the “Agreement”) between you and AudienceZen Ltd., a New Zealand Limited company with offices at 68 Mandeville Street, Christchurch 8011, New Zealand (“AudienceZen”).
1. “Data Protection Legislation” means European Union Regulation 2016/679 (the “General Data Protection Regulation” or “GDPR”) or California Civil Code Section 1798.100-1798.199 (the “California Consumer Privacy Act of 2018” or “CCPA”), as applicable, and any legislation and/or regulation implementing or made pursuant to it, or which amends or replaces any of it, and any other applicable legislation;
2. “Data Processor”, “Data Controller”, “Data Subject”, “Processing”, “Subprocessor”, and “Supervisory Authority” shall be interpreted in accordance with the General Data Protection Regulation;
3. “Service Provider” shall be interpreted in accordance with the California Consumer Privacy Act of 2018;
4. “Personal Data” as used in this Addendum means the Personal Data processed by AudienceZen on behalf of you in connection with the provision of the Servicesthat (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in AudienceZen’s procession or control or that AudienceZen is likely to have access to, or (b) the relevant Data Protection Legislation otherwise defines as Personal Data. The Personal Data includes Personal Information pursuant to the California CCPA and may include: name, phone number, email address, address data, IP address, device identifiers, unstructured data, usage data (such as interactions between a user and your online system, website or email, used browser, used operating system, referrer URL).
5. "Data Subject" means an individual who is the subject of Personal Data.
6. “Data Subject Request” as used in this Addendum means a request for access, erasure, rectification, or portability of your Customer’s Personal Data; and
7. All other capitalized terms in this Addendum shall have the same definition as in the Agreement.
2. Data Protection
1. Where a Data Subject is located in the European Economic Area, that Data Subject’s Personal Data may be transferred to other regions, including to New Zealand. Such transfers will be completed in compliance with relevant Data Protection Legislation.
2. When AudienceZen Processes Personal Data in the course of providing the Services, AudienceZen will:
(a) Process the Personal Data as a Data Processor and/or Service Provider, only for the purpose of providing the Services in accordance with documented instructions from you (provided that such instructions are commensurate with the functionalities of the Services), and as may subsequently be agreed to by you. If AudienceZen is required by law to Process the Personal Data for any other purpose, AudienceZen will provide you with prior notice of this requirement, unless AudienceZen is prohibited by law from providing such notice;
(b) notify you if, in AudienceZen’s opinion, your instruction for the Processing of Personal Data infringes applicable Data Protection Legislation;
(c) notify you promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Supervisory Authority relating to AudienceZen’s Processing of the Personal Data;
(d) implement reasonable technical and organizational measures enabling you to execute Data Subject Requests that you are obligated to fulfil;
(e) implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of Personal Data and appropriate to the nature of the Personal Data which is to be protected;
(f) upon request, provide reasonable information to help the Customer complete the Customer’s data protection impact assessments.
(g) provide you, upon request, with up-to-date attestations, reports or extracts thereof where available from a source charged with auditing AudienceZen’s data protection practices (e.g. external auditors, internal audit, data protection auditors), or suitable certifications, to enable you to assess compliance with the terms of this Addendum;
(h) notify you without undue delay upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
(i) co-operate with you and take reasonable commercial steps to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
(j) ensure that its personnel who access the Personal Data are subject to confidentiality obligations that restrict their ability to disclose the Customer Personal Data; and
(k) upon termination of the Agreement, AudienceZen will promptly initiate its purge process to delete or anonymize the Personal Data. If you request a copy of such Personal Data within 60 days of termination, AudienceZen will provide you with a copy of such Personal Data.
3. AudienceZen is permitted to anonymize Customer Personal Data through a reliable state of the art anonymization procedure and use such anonymized data for its own business purposes, including for research, development of new products and services, and security purposes.
4. AudienceZen may store and process Customer Personal Data anywhere AudienceZen or its Subprocessors maintain facilities, subject to clause 2.5 of this DPA.
5. In the course of providing the Services, you acknowledge and agree that AudienceZen may use Subprocessors to Process the Personal Data. AudienceZen’s use of any specific Subprocessor to process the Personal Data must be in compliance with Data Protection Legislation and must be governed by a contract between AudienceZen and Subprocessor that requires comparable protections to this Data Processing Addendum. A current list of Subprocessors may be found online at: AudienceZen's subprocessors. If you object to the appointment of a Subprocessor you may terminate the Agreement in accordance with these Terms of Service.
6. Customer Personal Data Subject To The CCPA. If you or your Affiliates provide AudienceZen any Customer Personal Data that is “Personal Information” under the CCPA, AudienceZen will:
(a) act as a service provider with regard to such Personal Information;
(b) retain, use, and disclose such Personal Information solely for the purpose of performing the Services or as otherwise permitted under the CCPA;
(c) not sell Customer Personal Information to another business or third party. Notwithstanding the foregoing, disclosures to a third party in the context of a merger, acquisition, bankruptcy, or other transaction shall be permitted in accordance with the terms of the Agreement; and
(d) provide reasonable assistance to Customer in responding to requests from consumers pursuant to the CCPA with regard to Personal Information, and in accordance with clause 2.2.d of this DPA.
7. AudienceZen certifies that it understands the foregoing obligations and shall comply with them for the duration of the Agreement and for as long as AudienceZen processes Customer Personal Data/Personal Information.
8. Both parties will comply with all applicable Data Protection Legislation when collecting, using, retaining, or disclosing Personal Data.
9. Customer warrants and represents that AudienceZen’s expected use of the Personal Data as instructed by Customer will comply with all Data Protection Legislation.
3. Cross-Border Transfers of Personal Data
1. If the Data Protection Legislation restricts cross-border Personal Data transfers, the Customer will only transfer that Personal Data to AudienceZen under the following conditions:
(a) the Customer obtained valid Data Subject consent to the transfer under the Data Protection Legislation.
2. If any Personal Data transfer between the Customer and AudienceZen requires execution of Standard Contractual Clauses in order to comply with the Data Protection Legislation, the parties will complete all relevant details in, and execute, the Standard Contractual Clauses, and take all other actions required to legitimize the transfer, including, if necessary:
(a) co-operating to register the Standard Contractual Clauses with any supervisory authority in any European country;
(b) procuring approval from any such supervisory authority; or
(c) providing additional information about the transfer to such supervisory authority.
1. In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail. For avoidance of doubt and to the extent allowed by applicable law, any and all liability under this Addendum, including limitations thereof, will be governed by the relevant provisions of the Agreement. You acknowledge and agree that AudienceZen may amend this Addendum from time to time by posting the relevant amended and restated Addendum on AudienceZen’s website, available at AudienceZenTerms of Service and such amendments to the Addendum are effective as of the date of posting. Your continued use of the Services after the amended Addendum is posted to AudienceZen’s website constitutes your agreement to, and acceptance of, the amended Addendum. If you do not agree to any changes to the Addendum, do not continue to use the Service.
2. Save as specifically modified and amended in this Addendum, all of the terms, provisions and requirements contained in the Agreement shall remain in full force and effect and govern this Addendum. If any provision of the Addendum is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Addendum shall remain operative and binding on the parties.
3. The terms of this Addendum shall be governed by and interpreted in accordance with the laws of New York, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts located in New York State with respect to any dispute or claim arising out of or in connection with this Addendum.