Last Updated: November 1, 2015
PLEASE READ THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE APPLICATION SERVICES OFFERED BY AUDIENS, S.R.L. (“AUDIENS”). THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF AUDIENS APPLICATION SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE AUDIENS APPLICATION SERVICES. BY ACCEPTING THESE TERMS BELOW, OR BY USING AUDIENS’S APPLICATION SERVICES IN ANY MANNER, YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. This Agreement is entered into as of the date you accept these terms or use the Audiens Application Services (“Effective Date”).
License to Use the Services
Subject to the terms set forth in this Agreement, Audiens grants to Customer a limited, non-exclusive, non-transferable license to use the Application Services (as defined herein) for Customer’s internal use and not for resale or further distribution. Customer’s right to use the Application Services is limited by all terms and conditions set forth in this Agreement. Except for this license granted to Customer, Audiens and its licensors retain all right, title and interest in and to the Application Services, including all related intellectual property rights. The Application Services are protected by applicable intellectual property laws, including EU copyright law and international treaties. “Application Services” shall mean the online, web-based applications ordered by Customer through an Order Form and provided by Audiens via http://www.audiens.com or other designated websites or IP addresses as communicated to Customer by Audiens. An “Order Form” shall mean either (a) a document signed by both parties identifying the Application Services used by Customer and made available by Audiens pursuant to this Agreement or (b) Customer’s selection and acceptance of the terms via the online registration form at www.audiens.com.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize any third party to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of any of the Application Services; (ii) rent, lease or sublicense access to any of the Application Services; or (iii) circumvent or disable any security or technological features or measures of the Application Services.
Access to the Services
Audiens does not provide the equipment required to access the Application Services. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the Application Services (e.g., charges by Internet service providers).
Audiens reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Application Services without notice. Audiens will not be liable to Customer or to any third party for any modification, suspension, or discontinuance of all or any portion of the Application Services.
Audiens also reserves the right, in its sole discretion, to reject, refuse to post, or remove any material that Customer posts or submits for posting, and to restrict, suspend, or terminate access to the Application Services at any time, for any or no reason, with or without prior notice, and without liability.
Customer must comply with all applicable laws when using the Application Services. Except as may be expressly permitted by applicable law, or as Audiens may authorize expressly in writing, Customer will not, and will not permit anyone else to: (i) store, copy, modify, distribute, or resell any of the information; audio, visual, and audiovisual works, or other content made available on the Application Services, or compile or collect any such content as part of a database or other work; (ii) use any automated tool (e.g., robots, spiders) to access or use the Application Services; (iii) rent, lease, or sublicense Customer’s access to the Application Services to another person; (iv) use any Application Services for any purpose except for Customer’s own internal use; (v) circumvent or disable any digital rights management, usage rules, or other security features of the Application Services; (vi) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services; or (vii) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Application Services.
Customer agrees to comply with all applicable privacy and data protection regulations. Further, Customer agrees to not use the Application Services to send Audiens sensitive information where unauthorized disclosure could cause material, severe, or catastrophic harm or impact to Audiens, any data subjects or third parties. Sensitive Information includes:
- Passwords, authentication/authorization credentials
Information under regulatory or contractual handling requirements (e.g., PCI, HIPAA, and state and federal data security laws) including:
- Credit card information including credit card numbers, CIV numbers (three digit codes for Visa and MasterCard, four digit code for American Express) and magnetic stripe information
- Social Security Numbers
- Drivers License Numbers
- Passport Numbers
- Government Issued Identification Numbers
- Financial Account Information
- Health data
- Biometric data
- Personally identifiable information knowingly collected from children under the age of 13 or from online services directed toward children, and
- Real time geolocation data which can identify an individual.
- Business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications).
Audiens collects, stores, and uses Customer Content to maintain and improve the Application Services. Audiens may also use Customer Content in an aggregated form for Audiens’s own purposes.
Audiens only shares User information with others under special circumstances as follows:
- With third parties who work on Audiens’s behalf to provide the Application Services;
- To comply with laws or to respond to lawful requests and legal process (provided that Audiens will endeavor to notify Customer if Audiens has received a lawful request for Customer’s information);
- In an emergency, including to protect the personal safety of any person; and
- For the purposes of a business deal (or negotiation of a business deal) involving sale or transfer of all or a part of Audiens’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding).
Audiens provides Customer with access to Customer Content and ability to delete any Customer Content. Audiens also takes commercially reasonable steps to safeguard Customer Content.
Users can opt-out of Audiens’s automatic retention of data collected through their browsers while on Customer’s mobile and web properties or Web sites that have the Application Services integrated by clicking here. To track opt-outs Audiens uses a persistent opt-out cookie placed on Users’ devices. Audiens opt-out cookies will not stop Customer from sending other data about that User from Customer’s servers to Audiens, nor will it prevent any other data collection methods.
Restricted Areas of the Services
Certain parts of the Application Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password, and agrees to notify Audiens if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify Audiens of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Application Services that is known to Customer.
Customer is solely responsible for any content and other material that Customer submits, publishes, transmits, or displays on, through, or with the Application Services.
“Audiens,” the Audiens logo, and any other product or service name or slogan displayed on the Application Services are trademarks of Audiens, S.r.l. and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Audiens or the applicable trademark holder. Customer shall not use any metatags or any other “hidden text” utilizing “Audiens” or any other name, trademark or product or service name of Audiens without prior written permission. In addition, the look and feel of the Application Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Audiens and may not be copied, imitated or used, in whole or in part, without prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Application Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Audiens.
Confidential Information; Feedback.
“Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
Each party agrees as follows: (a) to use Confidential Information disclosed by the other party only for the purposes described herein; (b) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (d) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement.
Notwithstanding the foregoing, the provisions of Sections 10.1 and 10.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent permitted by law, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
Customer may provide Audiens with feedback, suggestions, and ideas, if Customer chooses, about the Application Services (“Feedback”). Customer agrees that Audiens may, in its sole discretion, use the Feedback Customer provides in any way, including in future enhancements and modifications to the Application Services. Customer hereby grants to Audiens and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, without in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party.
Disclaimer of Warranties
USE OF THE APPLICATION SERVICES IS AT CUSTOMER’S SOLE RISK. THE APPLICATION SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AUDIENS AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. AUDIENS DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE APPLICATION SERVICES, AND CUSTOMER RELIES ON THE APPLICATION SERVICES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH THE APPLICATION SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE APPLICATION SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM AUDIENS OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Limitation of Liability
AUDIENS AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF AUDIENS HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM CUSTOMER’S USE OF THE APPLICATION SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF AUDIENS AND ITS SUPPLIERS AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE APPLICATION SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO AUDIENS FOR CUSTOMER’S USE OF THE APPLICATION SERVICES FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
Customer will defend, indemnify and hold harmless Audiens, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Application Services, Customer’s violation of this Agreement, Customer Content, or Customer’s violation of any rights of a third party through use of the Application Services.
Enforcement of any dispute relating to this Agreement will be governed by the laws of Italy, excluding its conflict and choice of law principles.
Audiens’s failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Audiens in writing. In the event that a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer of Warranties, Feedback, Indemnity, and Limitation of Liability. This Agreement contains the entire understanding of the parties on the subject matter hereof.
If you have any questions or concerns about our Services or these Terms, you may contact us at:
Viale Vittorio Veneto, 22
20100 Milano, Italy
or by email at email@example.com.